DENISE COTE, District Judge:
The Private Securities Litigation Reform Act of 1995 ("PSLRA") requires, upon final adjudication of any securities fraud lawsuit, that the court make specific findings regarding compliance by each party and each attorney with Rule 11 of the Federal Rules of Civil Procedure. The PSLRA further mandates that if any violations of Rule 11 are found, sanctions are mandatory. For the following reasons, sanctions will be imposed against plaintiff's counsel for a substantial violation of Rule 11 with respect to the original complaint filed in this action.
The factual background to this lawsuit was addressed in the Opinion and Order of December 14, 2009, dismissing the suit for failure to state a claim. See In re Austl. & N.Z. Banking Group Ltd. Sec. Litig., No. 08 Civ. 11278(DLC), 2009 WL 4823923 (S.D.N.Y. Dec. 14, 2009) (the "December Opinion"). Familiarity with the December Opinion is assumed, and only the facts necessary to the PSLRA sanctions inquiry are described here.
On December 29, 2008, the original complaint in this action (the "Original Complaint") was filed by an individual investor, Linda Levine ("Levine" or "plaintiff"), on behalf of herself and a purported class of persons who purchased American Depositary Receipts ("ADRs") of the corporate defendant over a seventeen month period between March 2, 2007 and July 27, 2008 (the "Class Period").
The Original Complaint alleged that, throughout the Class Period, defendants made a series of false and misleading statements concerning ANZ's financial results, its projected future performance, its commitment to delivering value to shareholders, and the absence of any material threats to its business. The Original Complaint asserted that these statements were false and misleading because they failed to disclose the financial risk posed by ANZ's relationship with Opes Prime Group Limited ("Opes Prime"), an Australian margin lending and stock brokerage firm of whom ANZ was the largest secured creditor. When Opes Prime went into receivership on March 27, 2008, it owed ANZ approximately $650 million. The Original Complaint claimed that ANZ ultimately lost approximately $850 million in "soured loans" to various companies in "the deteriorating property market," including but not limited to Opes Prime. The Original Complaint explained that the plaintiff's allegations about ANZ, made upon information and belief, were "based upon her attorneys' investigation which included, among other things . . . analysis of publicly-available news articles and reports."
In a section of the Original Complaint entitled "The False and Misleading Statements," Levine asserted that fifteen public statements by ANZ or the Individual Defendants were false and misleading, fourteen of which were issued before Opus Prime entered receivership.
(Emphasis supplied.) Thus, Paragraph 25 was the only basis for alleging a contemporaneous inference of scienter with respect to ANZ's knowledge of Opes Prime's financial troubles.
As of the March 27 conference, no additional lawsuit had been filed in this District against ANZ regarding its involvement with Opes Prime. At the conference, Glavin and Vianale appeared jointly on behalf of three proposed lead plaintiffs—Levine, Legacy Solutions Inc. ("Legacy"), and John B. Ponte—and moved for Stull Stull & Brody and Vianale & Vianale LLP to be appointed as co-lead counsel. At the conference, the Court appointed Legacy as the sole lead plaintiff, and since Legacy had an attorney-client relationship with Stull Stull & Brody, that law firm was appointed as lead counsel.
On May 21, Legacy filed its consolidated amended complaint (the "Amended Complaint"). The Amended Complaint abandoned the theory asserted in the Original Complaint and omitted the allegation contained in Paragraph 25. It asserted § 10(b) and § 20(a) claims premised on the findings recited in a securities lending review that ANZ published in August 2008, in the aftermath of the failure of Opes Prime and another brokerage business, Primebroker Securities ("Primebroker"). Its core allegation was that ANZ had failed to disclose in its public statements from 2006 to 2008 that it had inadequate internal controls for its Equity Finance unit. The Amended Complaint identified around two dozen false statements that were either general statements about the quality of ANZ's risk management practices and controls, statements about the
Defendants thereafter moved to dismiss the Amended Complaint on July 2, 2009, arguing that it failed to state a § 10(b) claim with respect to the elements of materiality, scienter, and loss causation. In accordance with the provisions of the March 12 Stipulation, the defendants never answered, moved, or otherwise responded to the Original Complaint, as they were under no duty to do so. Defendants' motion to dismiss was granted by the December Opinion, which ruled that none of the statements alleged to be false and misleading was sufficient to serve as the basis for a § 10(b) claim. Id. at *14-*15. The December Opinion did not reach the other putative flaws of the Amended Complaint asserted by defendants with respect to scienter and loss causation.
As instructed by the Court in an adjoining December 14 scheduling order, the lead plaintiff submitted its proposed findings of fact and conclusions of law on January 22, 2010, addressing the investigations undertaken prior to filing the Amended Complaint and concluding that the Amended Complaint was not sanctionable. Defendants filed an opposition statement on February 4 arguing that both the Original Complaint and the Amended Complaint violated Rule 11(b). Defendants' opposition focuses, in particular, on the inclusion of Paragraph 25 in the Original Complaint. Based on the serious concerns raised by defendants' opposition, on February 9, the Court directed an additional round of briefing to enable the lead plaintiff to respond to defendants' submission (the "February 9 Order").
Thereafter, the lead plaintiff and lead counsel made several additional submissions. First, on February 9, Vianale submitted a declaration (the "Vianale Declaration") to explain how Paragraph 25 came to be included in the Original Complaint.
On February 26, lead counsel submitted supplemental proposed findings of fact and conclusions of law and a separate response by the lead plaintiff to the defendants' February 4 submission, each of which reaffirmed the account contained in the Vianale Declaration. On March 12, defendants filed a surreply continuing to oppose the plaintiff's proposed findings.
"The PSLRA mandates that, at the end of any private securities action, the district court must `include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b).'" Rombach v. Chang, 355 F.3d 164, 178 (2d Cir.2004) (quoting 15 U.S.C. § 78u-4(c)(1)); see also ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 152 (2d Cir.2009) ("ATSI"). "If the court makes a finding . . . that a party or attorney violated any requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint . . . the court shall impose sanctions on such party or attorney in accordance with Rule 11 of the Federal Rules of Civil Procedure." 15 U.S.C.
Federal Rule of Civil Procedure 11(b) provides that an attorney who "present[s]" a pleading to the court thereby
Fed.R.Civ.P. 11(b). Thus, under Rule 11, "an attorney has an affirmative duty to make `reasonable inquiry into the facts and the law.'" Perez v. Posse Comitatus, 373 F.3d 321, 324 (2d Cir.2004) (quoting Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 542, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991)). "Since the inquiry must be `reasonable under the circumstances,' liability for Rule 11 violations requires only a showing of objective unreasonableness on the part of the attorney or client signing the papers." ATSI, 579 F.3d at 150 (citation omitted); see also id. at 152 ("[T]he mandate of the PSLRA obviates the need to find bad faith prior to the imposition of sanctions.").
Although the PSLRA reflects Congress's desire to "punish abusive litigation severely," Gurary, 303 F.3d at 222, the court's task must nevertheless be undertaken with great caution. "Rule 11 sanctions are a coercive mechanism, available to trial court judges, to enforce ethical standards upon attorneys appearing before them, while being careful not to rein in zealous advocacy." Kiobel v. Millson, 592 F.3d 78, 83 (2d Cir.2010) (citation omitted); see also Storey v. Cello Holdings, LLC, 347 F.3d 370, 387 (2d Cir.2003) (noting that a court must "ensure that any sanctions decision is made with restraint" (citation omitted)).
Defendants assert that the inclusion of Paragraph 25 in the Original Complaint violates Rule 11(b)(3), which requires that all "factual contentions have evidentiary support." A pleading violates Rule 11(b)(3) where "after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact." Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir.2002) (citation omitted). An erroneous statement of fact within a pleading "can give rise to the imposition of sanctions only when the `particular allegation is utterly lacking in support.'" Kiobel, 592 F.3d at 81
The inclusion of Paragraph 25 in the Original Complaint was "objectively unreasonable" and therefore violated Rule 11(b)(3). Several considerations combine to make this conclusion unavoidable. First, whether read in isolation or in context within the Original Complaint, Paragraph 25 "is utterly lacking in support." Kiobel, 592 F.3d at 81 (citation omitted). Plaintiff can identify no evidence whatsoever for the allegation that internal emails were exchanged at ANZ in or about March 2007 concerning Opes Prime's financial difficulties. In their second round of submissions, lead counsel and Vianale both effectively concede that the March 2007 emails simply did not exist.
Second, the error in Paragraph 25 was not an isolated misstatement concerning a collateral or trivial fact, but rather, a material allegation central to the viability of the entire pleading. The start of the Class Period was fixed in the Original Complaint as March 2, 2007, a few days before the "internal emails" were putatively exchanged. Aside from Paragraph 25, the Original Complaint makes no other allegation that ANZ was aware of Opes Prime's financial difficulties before March 2008, when Opes Prime entered receivership. In other words, the Original Complaint's spurious allegation concerning the "March 2007 . . . series of internal emails" enabled plaintiff to begin the Class Period a full twelve months sooner than the plaintiff otherwise could have. Most critically of all, without the allegation contained in Paragraph 25, there is no colorable basis whatsoever for alleging scienter by ANZ or the Individual Defendants with respect to fourteen of the fifteen alleged misstatements identified in the Original Complaint—that is, all of the alleged misstatements that occurred before Opes Prime entered a receivership.
Finally, insofar as Vianale relies upon the June 2008 Article as the inspiration for the Original Complaint's allegation in Paragraph 25 concerning the March 2007 internal emails, plaintiff's misreading of that news article—and subsequent lack of diligence or further inquiry—was an act of gross negligence bordering on recklessness. Given the centrality of Paragraph 25 to the Original Complaint's entire theory of fraud, any reasonable inquiry into the factual basis of the pleading would have prevented this mistake. Such indifference to the truth of the pleading's single most important factual allegation—coming, ironically, in the context of initiating a lawsuit that accuses another party of making reckless misstatements of material fact—is the sort of conduct that Rule 11 and the PSLRA seek to deter.
Lead counsel and Vianale advance several theories for why the Original Complaint did not violate Rule 11, its serious flaw notwithstanding. First, plaintiff argues, relying on Kiobel, that the Original Complaint was still "as a whole . . . well grounded in fact." Kiobel, 592 F.3d at 83 (citation omitted). This contention is without merit. As described above, Paragraph 25 was the crux of the entire complaint.
Second, Vianale asserts that alternative sources of support were available for alleging
Third, lead counsel argues that "[t]he evidence presented demonstrates that the error was committed in good faith," and the lead plaintiff characterizes the Vianale Declaration as "candidly explain[ing] the inadvertent error made by Plaintiff's counsel." While Vianale does take responsibility for the error, he does not explain how he came to rest his entire case on a misread news article, nor how he came to conclude that the June 2008 Article concerned events that occurred a year earlier than a natural reading of the article would indicate. Given the centrality of the error at issue here, and in the absence of an adequate explanation from Vianale, it would be difficult to excuse the error as a good-faith mistake. Nevertheless, it is unnecessary to determine whether Vianale acted in good faith because counsel's reliance on a good-faith defense is misplaced.
Although the Second Circuit recently cited with approval a Fourth Circuit decision suggesting that a plaintiff could avoid sanctions for "isolated factual errors, committed in good faith, so long as the pleading as a whole remains well grounded in fact," that decision does not imply that good faith, without more, represents a complete defense to Rule 11 liability. Kiobel, 592 F.3d at 83 (quoting Forrest Creek Associates, Ltd. v. McLean Sav. & Loan Ass'n, 831 F.2d 1238, 1245 (4th Cir.1987)). Since the 1993 Amendments to Rule 11 (which the Forrest Creek case predated), it has become well settled that good faith is not a defense to sanctions under most circumstances.
Finally, plaintiff suggests that the Original Complaint did not violate Rule 11 because (1) the defendants were never under any duty to respond to the Original Complaint; (2) the defendants did not respond to the Original Complaint; and (3) the filing of the Amended Complaint, which abandoned the erroneous allegation contained in Paragraph 25, effectively cured the error by superseding the original pleading. These arguments are without merit. A Rule 11 violation is complete upon the "present[ation]" of an offensive pleading to the court, not upon the opposing party's response thereto. Fed. R.Civ.P. 11(b). To be sure, an amended complaint in most respects "renders the original complaint of no legal effect," such that "[i]t is as though the original complaint was never served." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 260 (2d Cir.2002). The PSLRA makes plain, however, that the sanctions inquiry applies to "any complaint, responsive pleading, or dispositive motion." 15 U.S.C. § 78u-4(c)(1) (emphasis added). Plaintiff's counsel have identified no authority for the proposition that the filing of an amended complaint overwrites a Rule 11 violation contained in an original pleading and thereby prevents the imposition of sanctions under the PSLRA.
It also cannot be ignored that the initial complaint is the vehicle that invokes a court's jurisdiction and sets the litigation in motion. In this case, upon the filing of the Original Complaint, the defendants were forced to retain counsel and conduct an initial investigation into the allegations contained in the Original Complaint in preparation for defending the lawsuit, and later, for participating in court-ordered mediation. Cf. Retired Chi. Police Ass'n v. Firemen's Annuity & Benefit Fund of Chi., 145 F.3d 929, 934 (7th Cir.1998) ("Counsel may not drop papers into the hopper and insist that the court or opposing counsel undertake bothersome factual and legal investigation. They must conduct a reasonable investigation of the facts necessary to support their claims." (citation omitted)).
The fact that defendants did not have to respond to the Original Complaint also ignores the very substantial likelihood that ANZ would never have had to defend against a securities fraud lawsuit at all had the Original Complaint not been filed. No other complaint was ever filed against ANZ in the Southern District of New York concerning its involvement with Opes Prime or Primebroker. With the filing of this action in December 2008, the PSLRA procedural requirements took effect, a lead plaintiff was selected, lead counsel was appointed, and the filing of a consolidated
Defendants also independently seek sanctions with respect to the Amended Complaint. Defendants contend that the Amended Complaint was frivolous insofar as its "claims, defenses, and other legal contentions [were not] warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." Fed. R.Civ.P. 11(b)(2). Defendants argue that the alleged misstatements identified by lead plaintiff in the Amended Complaint were clearly inadequate to support a claim under Second Circuit case law defining the element of "materiality" in the context of securities fraud litigation. In particular, defendants assert that the alleged misstatements identified by plaintiffs were, without any question, protected either by the "bespeaks caution" doctrine or by the principle that generalized corporate optimism or "puffery" cannot sustain a fraud claim.
The Court cannot conclude that the lead plaintiff or lead counsel violated Rule 11 with respect to the Amended Complaint. To be sure, the Amended Complaint was not meritorious. It did not survive Rule 12(b)(6) motion practice, and the December Opinion dismissing the lawsuit only reached the first of three grounds for dismissal asserted by defendants. Nevertheless, "[a] distinction must be drawn between a position which is merely losing, and one which is both losing and sanctionable." Salovaara v. Eckert, 222 F.3d 19, 34 (2d Cir.2000) (citation omitted). Here, "[h]owever faulty, [lead plaintiff's] positions were not so untenable as a matter of law as to necessitate sanction." Id. (citation omitted). Moreover, in opposition to the motion to dismiss, the lead plaintiff made a "nonfrivolous argument for extending, modifying, or reversing existing law" insofar as it attempted to distinguish the key authorities relied upon by defendants and, ultimately, by the December Opinion as well.
The PSLRA dictates that "[i]f the court makes a finding . . . that a party or attorney
The PSLRA closely guides a court's discretion in choosing what sanction to impose. The PSLRA "establishes a presumption that, `for substantial failure of any complaint to comply with any requirement' of Rule 11(b), the award shall be the full amount of the reasonable attorneys' fees and costs." Gurary, 303 F.3d at 215 (quoting 15 U.S.C. § 78u-4(c)(3)(A)(ii) (emphasis in original)). The purpose of this presumption is to require courts to "make whole the victim of a Rule 11 violation" and not merely to "deter repetition of the sanctioned conduct." Id. at 220 (citation omitted). Even if the failure is "substantial," however, the presumption of full attorneys' fees may be "rebutted . . . upon proof that `the violation of [Rule 11(b)] was de minimis' or that the sanctions `will impose an unreasonable burden on that party or attorney and would be unjust, and the failure to make such an award would not impose a greater burden on the party in whose favor sanctions are to be imposed.'" Id. at 215 (quoting 15 U.S.C. § 78u-4(c)(3)(B)); see also ATSI, 579 F.3d at 154. If either of those two exceptions applies, sanctions are still required, but "the district court `shall' only impose those sanctions that it `deems appropriate' pursuant to Rule 11." Gurary, 303 F.3d at 226 n. 6 (quoting 15 U.S.C. § 78u-4(c)(3)(C)). Thus, before imposing sanctions, it must be determined whether plaintiff's violation of Rule 11(b)(3) was "substantial," and if so, whether the presumption of full attorney's fees has been rebutted by either of the two § 78u-4(c)(3)(B) factors.
In Gurary, the Court of Appeals defined what constitutes a "substantial violation" within the meaning of the PSLRA. The case concerned a circumstance in which a plaintiff's complaint contained a mix of frivolous (sanctionable) and nonfrivolous claims. The court, concluding that the "presence of nonfrivolous claims" alone did not necessarily defeat a finding of substantiality, id. at 221, held that "a substantial violation occurs whenever the nonfrivolous claims that are joined with frivolous ones are insufficiently meritorious to save the complaint as a whole from being abusive." Id. at 222. Thus, in determining whether a "substantial violation" exists, a court must consider the relative weight of the frivolous and nonfrivolous elements.
Id. at 223 (emphasis supplied) (quoting 15 U.S.C. § 78u-4(c)(3)(B)(i)). The Court of Appeals further stated that if the nonfrivolous claims are sufficiently significant as to cause the Rule 11 violation not to be substantial, "partial sanctions might still be assessable under ordinary Rule 11 standards to punish not the bringing of the whole suit, but only of the frivolous claim." Id. at 222; see also Morris, 448 F.3d at 284 (reaching the same conclusion).
The violation of Rule 11(b)(3) in the Original Complaint was "substantial." The factual error contained in Paragraph 25 was the cornerstone of plaintiff's theory of the case and thereby "infected the entire pleading." Rule 11 Advisory Committee Notes. There were no other nonfrivolous claims in the Original Complaint.
Even if it was appropriate to consider the claims in the Amended Complaint— and it is not clear that they should be considered—this would not alter the conclusion that the violation was substantial.
A final step, however, remains. The statutory presumption may be rebutted by a finding under 15 U.S.C. § 78u-4(c)(3)(B) that the violation was "de minimis" or that an award of full attorneys' fees would "impose an unreasonable burden," "would be unjust," and "the failure to make such an award would not impose a greater burden on the [prevailing] party."
The de minimis exception is not defined by the PSLRA, and the Second Circuit has also not explained its scope. In Gurary, the majority concluded that "de minimis. . . must signify something other than just the opposite of `substantial,'" Gurary, 303
Unlike the other factors to be considered under the PSLRA, the "unreasonable burden" exception does not concern the existence of mitigating factors or nonfrivolous claims within the offensive pleading. The Second Circuit in Gurary explained the "unreasonable burden" exception as follows:
Id. at 221. The burden of raising this exception, and of proffering evidence to prove that it is applicable, falls on the party being sanctioned. Id. That party may not rely on conclusory assertions of hardship, but rather, must "offer some financial or other like statements, reflecting the claimed . . . consequences of imposing the sanctions award, if that is to be the basis of his rebuttal." Id. at 225.
Neither party has addressed the "unreasonable burden" exception in its briefing on the sanctions issue. Out of fairness to the parties to be sanctioned, the parties will be given an opportunity to address this question. Consequently, as set forth in the order accompanying this Opinion, both parties may submit, at their discretion, evidence or further argument concerning whether the statutory presumption of full attorney's fees has been rebutted under the "unreasonable burden" exception.
Finally, it must be determined who should be held responsible for the identified Rule 11(b)(3) violation. Rule 11(c) provides that "the court may impose an appropriate sanction on any attorney, law firm, or party that violated [Rule 11(b)] or is responsible for the violation." Any party who "present[s]" a pleading to the Court, "whether by signing, filing, submitting, or later advocating it," may be held liable for a violation contained therein. Fed.R.Civ.P. 11(b); see also Kiobel, 592 F.3d at 87 ("`The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most [situations] should be sanctioned for a violation.'" (quoting Rule
Applying these principles, the following attorneys will be held jointly and severally liable for sanctions: Kenneth J. Vianale, who acknowledges having caused the error in Paragraph 25 and whose name appears in typewritten form on the Original Complaint, and Jules Brody, the attorney who actually signed the Original Complaint.
For the foregoing reasons, sanctions are imposed against Jules Brody, Kenneth Vianale, Stull, Stull & Brody, and Vianale & Vianale LLP pursuant to Rule 11(b)(3) and 15 U.S.C. § 78u-4(c)(2). Defendants are entitled to their full attorney's fees and costs under 15 U.S.C. § 78u-4(c)(3)(A)(ii) unless it may be shown that such an award represents an "unreasonable burden" pursuant to 15 U.S.C. § 78u-4(c)(3)(B)(i). A separate order to schedule further submissions by the parties accompanies this Opinion.
SO ORDERED.
Paragraph 29 states, in its entirety:
(Emphasis supplied.) The time and date "7:48 AM, 6 Jun 2008" appears in the upper right-hand corner of the first page of the June 2008 Article.
(Emphasis supplied).
Gurary, 303 F.3d at 224. In contrast with the circumstances contemplated in dicta by the Gurary court, in this lawsuit, the entire Amended Complaint was dismissed for failure to state a claim.