Kathy Bazoian Phelps
Senior Counsel in Ponzi Scheme Litigation
and Bankruptcy Matters

Kathy is a senior business trial attorney with more than 30 years experience prosecuting and defending claims for high net worth clients involved in Ponzi scheme matters and in bankruptcy proceedings. Kathy’s practice includes recovering assets for clients in complex fraud cases under standard fee and alternative fee arrangements. She also handles SEC and CFTC whistleblower claims. Kathy also serves as a mediator in bankruptcy matters, in complex business disputes, and in matters requiring detailed knowledge about fraud or Ponzi schemes.

Kathy’s Clients in Ponzi Scheme Cases and Bankruptcy Matters
Equity Receivers
Bankruptcy Trustees
High Net Worth Investors
Debtors in Bankruptcy
Secured and Unsecured Creditors

Monday, February 4, 2013

Ponzi Scheme Victims and SLUSA: The Supreme Court to Decide What Claims Can Proceed

Posted by Kathy Bazoian Phelps

   Defrauded investors in a Ponzi scheme have a few choices when the scheme goes bust. They can wait for a distribution from the insolvency proceeding, or they can take matters into their own hands and form a class to sue third parties for their damages. However, the Securities Litigation Uniform Standards Act ("SLUSA") can impose a formidable barrier for those types of class action suits.

   SLUSA states, "No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security." 15 U.S.C. § 78bb(f)(1)(A).

   The Supreme Court has agreed to hear an appeal in three related cases in the Allen Stanford Ponzi scheme case on the significant question of when SLUSA precludes investors’ state law claims for relief against third parties.

   The decision that the Supreme Court will review is the Fifth Circuit’s decision in Roland v. Green, 675 F.3d 503 (5th Cir. 2012). The district court had before it three state class actions to recover damages. In these suits, investors asserted a range of claims under Texas and Louisiana law against a number of third party defendants, including two law firms, Proskauer Rose and Chadbourne & Parke, as well as an insurance brokerage, Willis of Colorado, Inc. These are the parties that eventually petitioned the Supreme Court to hear the case.

   In their complaints, the plaintiffs claimed that they were misled into buying Stanford’s International Bank’s certificates of deposit by several misrepresentations, including that SIB’s assets were "invested in a well-diversified portfolio of highly marketable securities issued by stable national governments, strong multinational companies, and major international banks." The plaintiffs alleged that law firms aided and abetted Stanford’s fraud.

   The defendants moved to dismiss under SLUSA, asserting that the plaintiffs were claiming misrepresentations of material facts in connection with the purchase of a "covered security." The district court agreed and dismissed.

What Does "In Connection With" a "Covered Security" Mean?

   The district court found that the SIB CDs themselves were not "covered securities" within the meaning of SLUSA because SIB never registered the CDs, nor were they traded on a national exchange. Nevertheless, it held that the alleged misrepresentations were "in connection with" the purchase of a "covered security," finding that:
  • The plaintiffs’ "purchases of SIB CDs were ‘induced’ by the misrepresentation that SIB invested in a portfolio including SLUSA-covered securities"; and
  • The plaintiffs’ allegations "reasonably imply that the Stanford scheme coincided with and depended upon the Plaintiffs’ sale of SLUSA-covered securities to finance SIB CD purchases."
   On appeal, the Fifth Circuit reversed and reinstated the plaintiffs’ state law-based class action suits. Roland, 675 F.3d at 520. It reviewed the substantial conflicts in the standards that the other courts of appeals had adopted on the issue of when a misrepresentation is "in connection with the purchase or sale of a covered security." The Fifth Circuit agreed with the standard that the Ninth Circuit had adopted in Madden v. Cowen & Co., 576 F.3d 957 (9th Cir. 2009): "Accordingly, if Appellants’ allegations regarding the fraud are more than tangentially related to (real or purported) transactions in covered securities, then they are properly removable and also precluded." Roland, at 520.

   Applying that standard, the Fifth Circuit concluded that the plaintiffs’ "references to SIB’s portfolio being backed by ‘covered securities’ to be merely tangentially related to the ‘heart,’ ‘crux,’ or ‘gravamen’ of the defendants’ fraud." Id. at 521 (footnotes omitted). Rather, the court found that the "heart, crux, and gravamen of their allegedly fraudulent scheme was representing to the Appellants that the CDs were a ‘safe and secure’ investment that was preferable to other investments for many reasons." Id. Therefore, the Fifth Circuit rejected the district court’s rationale that the plaintiffs’ purchases of SIB’s CDs were induced by the misrepresentation that SIB invested in a portfolio that included SLUSA-covered securities.

   The district court had also concluded that the claimed fraud was "in connection with" the sale of a security because to fund their investments in SIB’s fraudulent CDs, some plaintiffs had sold their existing, unrelated securities. The Fifth Circuit also rejected that rationale, finding that Stanford’s scheme was focused not on persuading the plaintiffs to sell their securities, but on selling the fraudulent CDs. Id. at 523.

The Split in the Circuits

   The standard adopted by the Fifth and Ninth Circuits - the "more than tangentially related" test - is a narrow test, which results in the dismissal of smaller group of these class action suits against third parties in Ponzi scheme and other fraud cases.

   On the other hand, the tests adopted by the Second, Sixth, and Eleventh Circuits are broader and require the dismissal of a larger group of these cases. Although these courts articulate their tests slightly differently, each certainly would require the dismissal of the three cases in Roland v. Green.

   In Romano v. Kazacos, 609 F.3d 512, 522 (2d Cir. 2010), the Second Circuit held that the SLUSA requirement is met "where plaintiff’s claims ‘necessarily allege,’ ‘necessarily involve,’ or ‘rest on’ the purchase or sale of securities." (This was the test on which the district court relied in dismissing Roland v. Green.)

   In Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 310 (6th Cir. 2009), the Sixth Circuit held that SLUSA’s "in connection with" requirement is satisfied when the fraud "coincide[s] with" or "depend[s] upon" securities transactions. The Sixth Circuit further held that SLUSA "does not ask whether the complaint makes ‘material’ or ‘dependent’ allegations of misrepresentations in connection with buying or selling securities." Id. It only "asks whether the complaint includes these types of allegations, pure and simple." Id. at 311.

   In Instituto De Prevision Militar v. Merrill Lynch, 546 F.3d 1340, 1349 (11th Cir. 2008), the Eleventh Circuit held that a misrepresentation is made "in connection with" a covered securities transaction so long as either an alleged misrepresentation about a covered securities transaction "induced [plaintiff] to invest with [defendant]," or the misrepresentation "coincided and depended upon the purchase or sale of securities."

Supreme Court Precedent

   The Supreme Court’s decision will likely turn on its interpretation of its own precedent in SEC v. Zandford, 535 U.S. 813, 824 (2002), and Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006).

   In Zandford the issue was when a misrepresentation is "in connection with" a securities sale, as required to state a claim under § 10(b). The Court held that it is sufficient if the misrepresentation "coincides" with the sale or purchase of a covered security. However, the Court cautioned that "the statute must not be construed so broadly as to convert every common-law fraud that happens to involve [covered] securities into a violation of § 10(b)." 535 U.S. at 820.

   In Dabit, the Court addressed the SLUSA issue - when is a plaintiff’s claim of a misrepresentation "in connection with the purchase or sale" of a covered security? In that case, the plaintiffs alleged in their state law fraud suit that the defendants’ misrepresentations induced them to hold their securities. They had neither purchased nor sold a security as a consequence of the alleged misrepresentations. The Supreme Court nevertheless held that SLUSA bars their claims. It held that the SLUSA phrase "in connection with the purchase or sale of a covered security" must be given the same "broad construction" as the nearly identical "in connection with" language in § 10(b) itself, which requires only that the "fraud alleged ‘coincide’ with a securities transaction—whether by the plaintiff or by someone else." Dabit at 74, 85.

Significance of the Outcome of Roland v. Green

   The outcome of Roland v. Green in the Supreme Court will directly impact the availability of investors’ remedies in many Ponzi scheme cases, where the perpetrator’s promise to invest in securities turns out to be wholly illusory. For example, as we know, Bernard Madoff also falsely promised securities investments. Madoff investors have the additional issue that many of Madoff’s victims invested not with him directly, but with feeder funds who in turn invested with Madoff.

   So, how will the Supreme Court resolve the conflict in the circuits on this important issue?
  • Which test will it adopt?
  • Will Ponzi scheme victims be denied their state law fraud claims that are based on false promises to invest in covered securities?
  • Will their claims stand if they invested in feeder funds that in turn invested with a schemer who falsely promises to invest in covered securities?
   This issue, along with other statutory and securities issues, are covered in depth in chapter 10 of The Ponzi Book: A Legal Resource for Unraveling Ponzi Schemes (LexisNexis® 2012). Go to: www.theponzibook.com for more information.

No comments:

Post a Comment