Case: 13-15069   Date Filed: 07/16/2014   Page: 1 of 12


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15069
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:12-cv-61018-WJZ



PHILADELPHIA FINANCIAL MANAGEMENT OF SAN FRANCISCO, LLC,
BLUE LION MASTER FUND, L.P.,
individually and on behalf of all others similarly situated,


                                                         Plaintiffs-Appellants,


                                 versus


DJSP ENTERPRISES, INC.,
DAVID J. STERN,
KUMAR GURSAHANEY,


                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________
                             (July 16, 2014)
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Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

          Philadelphia Financial Management of San Francisco, LLP and Blue Lion

Master Fund, L.P.1 (collectively “the plaintiffs”), appeal the district court’s

dismissal of their securities class action brought against DJSP Enterprises, Inc.

(DJSP), David J. Stern, and Kumar Gursahaney (collectively “the defendants”).

For the reasons that follow, we affirm.

                                                   I.

          The plaintiffs originally filed suit in 2010, alleging that the defendants

violated section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b)

(the Act) and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. They

further asserted a controlling-persons claim against Stern and Gursahaney under

section 20(a) of the Act, 15 U.S.C. § 78t(a). Briefly stated, DJSP performed

processing services for residential mortgage foreclosures and related matters

exclusively for the Law Offices of David J. Stern (LODJS), a law firm that

represented mortgage holders in foreclosure proceedings. During the relevant time

period, Stern acted as president, chief executive officer, and chairman of DJSP,

and Gursahaney served as DJSP’s chief financial officer. The crux of the

plaintiffs’ allegations described that the defendants made false and misleading


1
    The two named plaintiffs have been appointed to lead the class in the instant action.
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public statements about the strength of DJSP’s foreclosure-processing business and

that the members of the class, all of whom purchased DJSP’s securities, suffered

financial loss when the defendants revealed the decrease in DJSP’s earnings.

       The district court dismissed the complaint without prejudice, concluding that

the (1) defendants’ statements about their business practices were non-actionable

puffery, immaterial, or dealt with technological advantages that the plaintiffs had

not alleged as untrue; (2) defendants’ statements about financial performance were

forward-looking statements falling within the safe-harbor provisions of the Private

Securities Litigation Reform Act of 1995 (PSLRA); and (3) defendants’ oral

statements made during a conference call were immaterial and did not create a

strong inference of scienter.

       The plaintiffs subsequently filed the instant action asserting the same claims

as in their original complaint, as well as two state-law claims for negligent

misrepresentation and fraud. After limited briefing, a magistrate judge issued a

report and recommendation (R&R), outlining that the defendants’ separate motions

to dismiss were due to be granted because the plaintiffs had failed to make any

material changes from the original complaint.2 The district court adopted the R&R


2
  The magistrate judge’s report, which the district court adopted in full, took judicial notice of the
district court’s previous order dismissing the original complaint without prejudice. We find no
error in this decision because the documents in the plaintiffs’ first case were public records that
were “not subject to reasonable dispute” as they were “accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b); see also Bryant
v. Avado Brands, Inc., 

, 1278 (11th Cir. 1999).
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and dismissed the complaint. The plaintiffs then filed a Fed.R.Civ.P. 59(e) motion

to vacate judgment, arguing that the magistrate judge had misinformed them about

the time limit for filing objections to the R&R. The court granted in part the

motion, finding that the objections to the R&R were timely filed. Nevertheless, the

court found no merit to the objections. The instant appeal followed.

                                          II.

      “We review de novo the district court’s grant of a motion to dismiss under

[Fed.R.Civ.P.] 12(b)(6) for failure to state a claim, accepting the allegations in the

complaint as true and construing them in the light most favorable to the plaintiff.”

Am. Dental Ass’n v. Cigna Corp., 

, 1288 (11th Cir. 2010) (quotation

omitted).

      To state a claim for securities fraud under section 10(b) of the Act and

Rule10b-5, a plaintiff must allege “six elements: (1) a material misrepresentation

or omission; (2) made with scienter; (3) a connection with the purchase or sale of a

security; (4) reliance on a misstatement or omission; (5) economic loss; and (6) a

causal connection between the material misrepresentation or omission and the loss,

commonly called ‘loss causation.’” Instituto De Prevision Militar v. Merrill

Lynch, 

, 1352 (11th Cir. 2008) (quotation omitted)). Section 20(a)

“imposes derivative liability on persons that control primary violators of the Act.”

Laperriere v. Vesta Ins. Group, Inc., 

, 721 (11th Cir. 2008). Thus, a


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section 20(a) claim cannot stand unless the underlying suit states a claim for relief

under section 10(b).

      To survive a motion to dismiss, a claim brought under section 10(b) of the

Act or Rule 10b-5 must satisfy (1) the federal notice pleading requirements; (2) the

special fraud pleading requirements found in Fed.R.Civ.P. 9(b), see Ziemba v.

Cascade Int’l, Inc., 

, 1202 (11th Cir. 2001); and (3) the additional

pleading requirements imposed by the PSLRA, see Phillips v. Scientific-Atlanta,

Inc., 

, 1016 (11th Cir. 2004).

      Under the federal notice pleading standards, a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed.R.Civ.P. 8(a)(2). Additionally, Rule 9(b) requires that, for complaints alleging

fraud or mistake, “a party must state with particularity the circumstances

constituting fraud or mistake,” although “[m]alice, intent, knowledge, and other

conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b).

      The PSLRA imposes additional heightened pleading requirements. For

section 10(b) and Rule 10b-5 claims predicated on allegedly false or misleading

statements or omissions, the PSLRA provides that “the complaint shall specify

each statement alleged to have been misleading, the reason or reasons why the

statement is misleading, and, if an allegation regarding the statement or omission is

made on information and belief, the complaint shall state with particularity all facts


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on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). Specifically, the

complaint must “plead with particularity facts giving rise to a strong inference that

the defendants either intended to defraud investors or were severely reckless when

they made the alleged materially false or incomplete statements.” Mizzaro v.

Home Depot, Inc., 

, 1238 (11th Cir. 2008) (quotation marks

omitted).

                                         III.

      On appeal, the plaintiffs’ main contention is that the defendants violated

section 10(b) of the Act and Rule 10b-5 by making material misrepresentations and

omissions in filings to the Securities and Exchange Commission (SEC), press

releases, and other public statements. The first set of statements pertain to DJSP’s

business practices, including that DJSP employed “rigorous” processes to ensure

the “efficient” and “accurate” handling of foreclosures, and “its effective” staff

training. The other category of statements involves DJSP’s business prospects and

expected financial results. We consider each category in turn.

      To prove a claim under Section 10(b) and Rule 10b-5, “a plaintiff must show

that the [defendant’s] statements were misleading as to a material fact. Basic Inc.

v. Levinson, 

, 238 (1988) (emphasis omitted). Additionally, “a

defendant’s omission to state a material fact is proscribed only when the defendant

has a duty to disclose.” Rudolph v. Arthur Andersen & Co., 

, 1043


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(11th Cir. 1986). Some of the factors that we consider in determining whether a

duty to disclose exists include “the extent of the defendant’s knowledge and the

significance of the misstatement, fraud or omission,” as well as “[t]he extent of the

defendant’s participation in the fraud.” 

no error in the district court’s order of dismissal. First, the plaintiffs

failed to show that the defendants’ statements about DJSP’s operations were false

or misleading. Viewed in context, the defendants’ references to “efficiency” and

“accuracy” in DJSP’s registration statement and earnings releases appear to relate

to its use of technology in a bid to streamline foreclosure processing and, to a

lesser extent, the company’s hiring and training of employees to handle its large

volume of work. The plaintiffs do not suggest that DJSP did not use the described

technology or that these systems did not improve the firm’s efficiency and

accuracy in processing foreclosures.

      Additionally, the defendants’ statements about the “rigor” of DJSP’s

processes, the “efficiency” and “accuracy” of its operations, and its “effective”

staff training were not material. See SEC v. Merch. Capital, LLC, 

,

766 (11th Cir. 2007) (We have said that “[t]he test for materiality in the securities

fraud context is ‘whether a reasonable man would attach importance to the fact

misrepresented or omitted in determining his course of action.’”). Although all of

these traits are arguably important to the success of DJSP’s foreclosure-processing


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business, these terms do not assert specific, verifiable facts that reasonable

investors would rely on in deciding whether to buy or sell DJSP’s securities. See

.

      In their instant complaint, the plaintiffs attempt to recast their argument as

an omissions claim. But the district court properly rejected this claim because the

alleged omissions relate to the same statements that the plaintiffs already raised as

affirmative misrepresentations in their original suit. Moreover, the information

that the plaintiffs contend was omitted does not rest upon specific facts, but only

upon generalized opinions that the practices at DJSP were “slipshod” and

“chaotic.” See Va. Bankshares, Inc. v. Sandberg, 

, 1095 (1991)

(explaining that for a statement to be an actionable misrepresentation, it must be of

a definite factual nature).

      The plaintiffs’ extensive reliance on our recent holding in FindWhat Investor

Group v. FindWhat.com, 

(11th Cir. 2011), to support their

omissions claim is misplaced. In that case, the defendant, an Internet-commerce

company that provided pay-per-click advertising services, made affirmative

representations that it employed strict controls and monitoring over its Internet

click-systems to ensure quality of traffic. FindWhat Investor 

. In reality, however, two employees were committing click-fraud in a bid to

generate fake traffic. 

The instant case is distinguishable, however,


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because the defendants’ business statements concerning DJSP’s technological

prowess did not constitute affirmative representations concerning the efficiency or

accuracy of particular systems or the actual results those systems would produce,

but instead were opinions on the overall quality of DJSP’s foreclosure practices.

See Next Century Commc’ns Corp. v. Ellis, 

, 1027-28 (11th Cir.

2003) (holding that the statement, “as our Company’s strong performance

continues,” to be non-actionable puffery, which, as a matter of law, would not

induce reliance).

      The other category of statements that the plaintiffs alleged were false and

misleading—those involving DJSP’s business prospects and expected financial

results—are forward-looking statements subject to the PSLRA’s safe harbor

provisions. See 15 U.S.C. § 78u-5(c)(1)(A)(i) (noting that under the statutory safe

harbor, a defendant may avoid liability for any forward-looking statement that is

false or misleading if the statement is “identified as a forward-looking statement,

and is accompanied by meaningful cautionary statements identifying important

factors that could cause actual results to differ materially from those in the

forward-looking statement”). For example, in a March 16, 2010, slide

presentation, which included DJSP’s original earnings guidance for 2010, Stern

and Gursahaney disclosed that the presentation “contain[ed] forward-looking

statements within the meaning of the [PSLRA] about DJSP . . . .” The disclosure


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went on to caution that the forward-looking statements were “subject to risks and

uncertainties, which could cause actual results to differ from the forward looking

statements.” Among other risk factors, the defendants referenced “legislation or

other changes in the regulatory environment, particularly those impacting the

mortgage default industry” and “fluctuations in customer demand.” These

disclosures pertain to the same facts that the plaintiffs claim the defendants

concealed and that ultimately led DJSP to lowers its 2010 projections. See Ehlert

v. Singer, 

, 1320 (11th Cir. 2001) (holding that cautionary language

accompanying forward-looking statements satisfied the safe-harbor statute because

“the warnings actually given were not only of a similar significance to the risks

actually realized, but were also closely related to the specific warning which

Plaintiffs assert should have been given”).

      Lastly, the plaintiffs assert that Stern intentionally concealed the downturn in

DJSP’s processing business because he had a motive to maintain an artificially

inflated stock price to minimize his own financial losses. But a personal financial

incentive, standing alone, is insufficient to establish a strong inference of actual

fraud. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

, 325 (2007)

(explaining that although “personal financial gain may weigh heavily in favor of a

scienter inference,” the “significance that can be ascribed to an allegation of

motive . . . depends on the entirety of the complaint”). As highlighted by the


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district court, it appears that Stern had limited knowledge about the possible long

term effects of a slowdown in DJSP’s core business at the time he made many of

the contested statements.

      For example, during a conference call to investors on April 22, 2010, Stern

expressed his belief that DJSP’s financial guidance for 2010 remained

“conservative.” Stern also stated that he was not overly concerned about

government intervention programs and that DJSP was well positioned to adjust to,

and possibly profit from, such assistance programs. When the defendants lowered

DJSP’s financial forecast for the year in late May 2010, they pointed to a system

conversion by one of LODJS’ largest clients as the source of the problem, which in

turn had reduced the number of foreclosure files referred by that client. According

to the plaintiffs’ complaint, DJSP became aware of the system conversion

sometime in April, that the conversion had reduced foreclosure volumes in April

and May, and that the long term impact of the slowdown remained unclear. As

such, given that the defendants appear to have first learned of the conversion issue

no more than three weeks before the April conference call and that they remained

at best uncertain about the potential impact of this problem as late as May, it is

simply not “at least as compelling as any opposing inference” that the defendants

knew on April 22 that DJSP could not meet or exceed its stated earnings guidance

for 2010. See 

(explaining that “[a] complaint will survive


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. . . only if a reasonable person would deem the inference of scienter cogent and at

least as compelling as any opposing inference one could draw from the facts

alleged.”).

       In sum, taking all of the complaint’s allegations as true, we hold that the

plaintiffs failed to “plead with particularity” to show that the defendants’

statements about their business practices and financial performance constituted a

violation of section 10(b) or Rule 10b-5. 

. Accordingly,

we affirm the district court’s order dismissing the plaintiffs’ amended complaint

for failure to state a claim. 3

       AFFIRMED.




3
  In their appellate brief, the plaintiffs do not challenge the dismissal of the state-laws claims or
the denial of their Rule 59(e) motion. As such, we consider these issues abandoned. See
Greenbriar, Ltd. v. City of Alabaster, 

, 1573 n.6 (11th Cir. 1989).
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