Ashland Inc. v. Morgan Stanley & Co. Inc.

• Citation: 652 F.3d 333
• Decision Date: 28 July 2011
• Docket Number: Docket No. 10–1549–cv.
• Parties: ASHLAND INC., AshThree LLC, Plaintiffs–Appellants,v.MORGAN STANLEY & CO., INC., Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

652 F.3d 333

ASHLAND INC., AshThree LLC, Plaintiffs–Appellants,

v.MORGAN STANLEY & CO., INC., Defendant–Appellee.

Docket No. 10–1549–cv.

United States Court of Appeals, Second Circuit.

Argued: March 9, 2011.Decided: July 28, 2011.

Christopher P. Johnson (Laurin B. Grollman, on the brief), Kasowitz, Benson, Torres & Friedman LLP, New York, NY, for Plaintiffs–Appellants.John K. Carroll (Scott D. Musoff, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendant–Appellee.Before: WINTER, POOLER, and HALL, Circuit Judges.

WINTER, Circuit Judge:

Ashland Inc. and AshThree LLC (together, “Ashland” or “appellants”) appeal from Judge Patterson's dismissal of their first amended complaint (“FAC”), which asserted claims against Morgan Stanley under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and New York common law. Appellants contend that Morgan Stanley, in oral and email communications with Ashland's Assistant Treasurer, materially misrepresented the liquidity of certain auction rate securities (“ARS”) and thereby fraudulently induced Ashland to purchase and hold these securities at a time when Morgan Stanley knew that the market for ARS was collapsing. We affirm the district court's dismissal on the ground that sophisticated investors like appellants cannot plead reasonable reliance on Morgan Stanley's alleged misrepresentations in light of Morgan Stanley's publicly-filed statement explicitly disclosing the very liquidity risks about which appellants claim to have been misled.

BACKGROUND

Ashland Inc. is a Kentucky-based global chemical company. It is the sole owner and operator of the special purpose entity AshThree LLC, a Delaware limited liability company. AshThree holds the securities at issue in this case. Appellee Morgan Stanley is a Delaware corporation with its principal place of business in New York.

Ashland's relationship with Morgan Stanley began in May 2007, when Ashland's long-time financial advisor, Thomas Byrne, moved to Morgan Stanley. Around that time, Byrne called Ashland's Assistant Treasurer, Joseph Broce, to discuss moving Ashland's investments to Morgan Stanley. Byrne recommended investing in Morgan Stanley-brokered ARS. ARS are long-term bonds and stocks whose interest rates or dividend yields are periodically reset through auction. At each auction, holders and buyers of the securities specify the minimum interest rate at which they want to hold or buy. If buy/hold orders meet or exceed sell orders, the auction succeeds. If supply exceeds demand, however, the auction fails and the issuer is forced to pay a higher rate of interest in order to penalize it and to increase investor demand. For a more thorough explanation of the mechanics of ARS, see In the matter of Bear Stearns & Co., et al., SEC Release No. 8684, 88 SEC Docket 259 (May 31, 2006).

The ARS at issue in this matter were backed by student loan obligations (“SLARS”). Byrne is alleged to have told Broce that the ARS were “safe, liquid instruments that were suitable to [appellants'] conservative investment policies.” Byrne further represented that the SLARS would remain liquid because Morgan Stanley had never conducted a failed auction and “in the event of any instability or weakness in the market for SLARS ... which Morgan Stanley represented to be a very ‘rare’ occurrence—Morgan Stanley's brokers and other brokers would step in and place sufficient proprietary bids to prevent auction failure and ensure the liquidity of Ashland's SLARS.” Because bid information about ARS auctions was not publicly available, however, appellants could not know how often Morgan Stanley had intervened to ensure a successful auction. Ashland also alleges that, in fact, Morgan Stanley knew as early as August 2007 that the ARS market was collapsing, in part because Morgan Stanley was often required to intervene to prevent auction failure.

Ashland purchased SLARS through Morgan Stanley on three separate occasions in 2007—September 25, October 2, and November 29. On the days leading up to each purchase, Byrne assured Broce “that SLARS continued to be a safe, liquid investment.” Accordingly, throughout this period, Ashland placed only “hold” or “hold-at-rate” orders at auctions, rather than “sell” orders.¹ In December 2007, Ashland learned that Goldman Sachs, acting as underwriter in an unrelated ARS auction, had allowed that auction to fail. Byrne reassured Broce that this failure had no bearing on the safety of its SLARS, which were based on student loans backed by a federal guarantee, unlike those in the failed auction. In January 2008, Ashland learned of other auction failures, but Morgan Stanley continued to assert that ARS were a safe, liquid investment. When Ashland began placing “sell” orders around February 2008, however, it found that the market was illiquid because Morgan Stanley was no longer stepping in to ensure auction success.

Appellants filed a complaint in the Southern District of New York in June 2009, which they amended in September 2009, asserting claims for violation of Section 10(b) of the Exchange Act, common law fraud, promissory estoppel, breach of fiduciary duty, negligence, negligent misrepresentation, and unjust enrichment. In addition to alleging that Morgan Stanley misrepresented the safety and liquidity of the SLARS, the FAC also alleges the following pertinent omissions. Morgan Stanley failed to disclose: (i) how often demand failed to meet supply in SLARS auctions, and consequently, how often it had to step in to purchase the SLARS; (ii) that the government guarantee and non-dischargeability in bankruptcy of the underlying student debt obligations were unrelated to the SLARS' liquidity; (iii) the relationship between fail rates, AAA ratings, and liquidity; and (iv) that it was not fully committed to ensuring liquidity of the SLARS.

The district court dismissed the FAC in its entirety. Ashland Inc. v. Morgan Stanley & Co., 700 F.Supp.2d 453, 473 (S.D.N.Y.2010). It relied in part on the fact that in May 2006 Morgan Stanley “placed a statement of its ARS policies and practices online, ‘as a result of an Order entered into between the [Securities and Exchange Commission (“SEC”) ] and certain active broker-dealers in the auction rate securities market.’ ” Id. at 461. The SEC-ordered statement included several relevant disclosures. It stated that “Morgan Stanley is permitted, but not obligated, to submit orders in auctions for its own account either as a bidder or a seller and routinely does so [in] its own discretion.” Id. It further explained that

Morgan Stanley routinely places one or more bids in an auction for its own account to acquire ARS for its inventory, to prevent a failed auction or to prevent an auction from clearing at a rate that Morgan Stanley believes is higher than the market for similar securities at the time it makes its bid.... [However,] Morgan Stanley is not obligated to bid in any auction to prevent an auction from failing or clearing at an off-market rate. Investors should not assume that Morgan Stanley will do so.

Id. It also stated that ARS holders “may be disadvantaged if there is a failed auction because they are not able to exit their position through the auction” and explained that “the fact that an auction clears successfully does not mean that an investment in the ARS involves no significant liquidity or credit risk.” Id.

The district court concluded that the Section 10(b) securities fraud claim failed because: (i) “hold” and “hold-at-rate” orders did not constitute a purchase or sale of securities under Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); (ii) the FAC did not allege facts to support a strong inference of scienter as to any misrepresentations or omissions; and (iii) the FAC did not allege facts to show that appellants were reasonable in their reliance on any alleged misrepresentations. Ashland, 700 F.Supp.2d at 467–71. It also dismissed the common law fraud and promissory estoppel claims due to lack of reasonable reliance. Id. at 471–72. Finally, it held that the remaining state law claims were preempted by New York's Martin Act. Id. at 472. This appeal followed.

DISCUSSION

We review a district court's grant of a motion to dismiss under Rule 12(b)(6) de novo, accepting as true all facts alleged in the complaint and drawing all reasonable inferences in favor of the non-moving party. Chase Grp. Alliance LLC v. City of N.Y. Dep't. of Fin., 620 F.3d 146, 150 (2d Cir.2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

a) Section 10(b) Claim

To sustain a private claim for securities fraud under Section 10(b), “a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” ²Stoneridge Inv. Partners, LLC v. Scientific–Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008). Moreover, a plaintiff's reliance on the defendant's misrepresentation must have been reasonable in order for the claim to proceed. See Harsco Corp. v. Segui, 91 F.3d 337, 342 (2d Cir.1996) (collecting cases from various circuits). “An investor may not justifiably rely on a misrepresentation if, through minimal diligence, the investor should have discovered the truth.” Brown v. E.F. Hutton Grp., Inc., 991 F.2d 1020, 1032 (2d Cir.1993). Factors relevant to this analysis include:

(1) [t]he sophistication and expertise of the plaintiff in financial and securities matters; (2) the...