Faulkner v. Beer

Decision Date08 September 2006
Docket NumberDocket No. 05-1568-CV.
PartiesDelois FAULKNER, as Trustee of the DeLois J. Faulkner Trust and as Trustee of the Stanley J. Boydston Trust, Barbara Taylor, Josephine B. Smith, Douglas Lawson, as Trustee of the Douglas M. Lawson Associates, Inc., Profit Sharing Plan and Trust, and Michael Bolger as Trustee of the MD 1998 Irrevocable Trust, Plaintiffs-Appellants, v. Andrew E. BEER, Nustar.com, Inc., Susan Callister Beer, and J. Stephen Anderson, Defendants-Appellees, Kevin Matthews, Jack R. Orben, Harry Connaro, Defendants.
CourtU.S. Court of Appeals — Second Circuit

Norman Solovay, (Debra I. Resnick, Anthony J. Palumbo, on the brief), Hartman & Craven LLP, New York, NY, for Plaintiffs-Appellants.

Paul T. Shoemaker, Greenfield, Stein & Senior, LLP, New York, NY, for Defendants-Appellees.

Before WINTER, CABRANES, and SACK, Circuit Judges.

WINTER, Circuit Judge.

This is an appeal from Judge Daniels' dismissal of a complaint alleging securities fraud. Because the court considered materials outside the complaint that involved disputed issues of material fact, we vacate and remand.

BACKGROUND

We view the facts alleged in the complaint in the light most favorable to appellants. See Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir.2005), cert. granted on other grounds, ___ U.S. ___, 126 S.Ct. 2965, ___ L.Ed.2d ___ (2006).

The appellants are DeLois Faulkner, as trustee of the DeLois J. Faulkner Trust and the Stanley J. Boydston Trust, Josephine B. Smith, Douglas M. Lawson as trustee of the Douglas M. Lawson Associates, Inc., Profit Sharing Plan and Trust, and Michael Bolger, as Trustee of the MD 1998 Irrevocable Trust. The appellees are Andrew Beer, Nustar.com ("Nustar"), Susan Callister Beer, and J. Stephen Anderson.

Andrew Beer was an investment advisor; he and Jack Orben were the principals and managers of AFS Group and its subsidiary, Starwood Corporation. In the early 1990s, Beer formed several investment vehicles, including Nustar, which was to apply the Berkshire Hathaway investment model to technology companies. He served as Nustar's Chairman, President, CEO and Treasurer at various times; Orben was the Chairman until 1995. The remaining appellees were employees of Nustar: Susan Callister Beer was its President and Treasurer, and J. Stephen Anderson was the Secretary of Nustar and the President of another subsidiary.

Beginning in 1993, appellants were clients of Starwood Corporation. Beer persuaded them to invest in Nustar, some on behalf of trusts they administered. At least one appellant was not given audited financial statements for Nustar or an offering memorandum. Appellants all assert that none of the promotional material they were given included adequate cautions or disclaimers and that Beer assured them Nustar was a safer investment than the conservative stocks and bonds they had held. The promotional materials quoted in the complaint predicted an annual return rate of 42% almost immediately on investments in Nustar, and an eventual 100-fold return. Further, the materials stated that "Nustar has been designed to be an ideal investment vehicle: safe and sound based on investments in quality growth stocks; while management endeavors to develop businesses of high growth which require little or no investment."

Appellants allege several specific oral and written misrepresentations by Beer regarding Nustar before they invested. First, they assert that the 1996 Offering Promotion and later documents falsely stated that a "symbiotic relationship" between Nustar and Starwood would allow Nustar to use Starwood's office staff, equipment, and research and development, keeping overhead low, when in fact Nustar bought Starwood in 1998 and thereby assumed all of the overhead expenses itself. Second, appellants assert that Beer told them that Nustar would invest 75% of the funds raised in "a diversified portfolio of quality growth stocks," while only the other 25% would be invested in those with "extraordinary growth potential," a strategy soon abandoned, if it was ever followed. Third, they assert that Nustar's net asset value was grossly overstated. Fourth, appellants assert that they were told that Nustar would invest in non-public companies whose "capital expenditures are not overwhelming" and those companies "requiring little or no capital," but that Nustar did not do so. Fifth, they assert that the financial statements were inaccurate, and expenses, losses and uncollectible loans were improperly capitalized and the net asset value overstated. Sixth, they assert that they were told that potential dilution of investors in an offering would be between twelve and fifteen percent, while plaintiff Lawson's investment was diluted by more than 75%. Seventh, appellants assert that they were told that investors could redeem their shares at any time for liquid net asset value, but that Nustar repudiated that agreement after the stock market declined, likening the decline to an act of God or nature. Finally, they allege they were not told that the company managing Nustar, Venvestec, was closely held by the defendants and had no debt or equity capital, nor were they informed that several of the investments made by Nustar were in companies closely held by the defendants which also lacked debt and equity capital. Appellants claim that those investments were made to shift money to the appellees, and that doing so reduced the net asset value of Nustar. They assert that they were unable to redeem their shares, and that their investments are now worthless.

The amended complaint includes claims for: (i) violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5; (ii) fraudulent misrepresentations; (iii) breach of fiduciary duty by directors; (iv) negligent misrepresentation; (v) breach of contract; and (vi) breach of fiduciary duty by Beer as an investment advisor. It sought damages equal to their losses, plus punitive damages of $5,000,000 and attorneys' fees.

Defendants moved to dismiss the complaint under Rule 12(b)(6) for, inter alia, failure to state a claim; under Rule 9(b) for failure to plead fraud or scienter with particularity, and under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), Pub.L. No. 104-67, 109 Stat. 737 (1995) (codified in pertinent part at 15 U.S.C. § 78u-4(b)(1)), for failure to plead with particularity.

The district court dismissed the complaint, holding that plaintiffs did not plead with particularity facts sufficient to allege fraud and that some of the alleged misrepresentations were accompanied by cautionary statements in the memorandum sufficient to satisfy the "bespeaks caution" doctrine. See P. Stolz Family P'ship L.P. v. Daum, 355 F.3d 92, 96-97 (2d Cir.2004). The court also held that plaintiffs did not plead facts sufficient to show scienter under Rule 9(b); and that Matthews was not alleged to have made any misrepresentation to plaintiffs and should be dismissed as a defendant. Having disposed of the federal claims, the district court dismissed the remaining state law claims without prejudice. See 28 U.S.C. § 1367(c)(3) (providing that the district court "may decline to exercise supplemental jurisdiction over a claim" when the "court has dismissed all claims over which it has original jurisdiction.").

Appellants then brought this appeal.

DISCUSSION

We review the district court's dismissal of a complaint for failure to state a claim de novo, "accepting as true all facts alleged in the complaint and drawing all inferences in favor of the plaintiff," affirming such a dismissal only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 425 F.3d at 106 (citations and internal quotation marks omitted). We also review a dismissal for failure to plead with particularity as required by Rule 9(b) de novo Stevelman v. Alias Research Inc., 174 F.3d 79, 83 (2d Cir.1999), as we do a dismissal for a failure to state a claim under the PSLRA, Novak v. Kasaks, 216 F.3d 300, 305 (2d Cir.2000).

Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself. However, "[i]f, on a motion [for dismissal under Rule 12(b)(6)], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). In the present case, the parties submitted several documents in connection with the defendants' motion to dismiss the amended complaint, including offering memoranda, annual reports and a prospectus.1 Based in part on those materials, the district court dismissed the...

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