In re Optimal U.S. Litig.

• Citation: 837 F.Supp.2d 244
• Decision Date: 21 December 2011
• Docket Number: No. 10 Civ. 4095(SAS).,10 Civ. 4095(SAS).
• Parties: In re OPTIMAL U.S. LITIGATION.
• Court: U.S. District Court — Southern District of New York

837 F.Supp.2d 244

In re OPTIMAL U.S. LITIGATION.

No. 10 Civ. 4095(SAS).

United States District Court, S.D. New York.

Dec. 21, 2011.

Edward W. Miller, Esq., Garden City, NY, Alan Ian Ellman, Esq., Javier Bleichmar, Esq., Labaton Sucharow, LLP, New York, NY, Jack Reise, Esq., Michael L. Greenwald, Esq., Robbins Geller Rudman & Dowd LLP, Boca Raton, FL, for Plaintiffs.

Gustavo J. Membiela, Esq., Samuel A. Danon, Esq., Hunton & Williams, LLP, Miami, FL, Paulo Roberto Lima, Esq., Shawn Patrick Regan, Esq., Hunton & Williams, LLP, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

This putative class action arises out of plaintiffs' investment in the Optimal Strategic U.S. Equity fund (“Optimal U.S.” or the “Fund”), which in turn invested one-hundred percent of its assets with Bernard L. Madoff and his firm, Bernard L. Madoff Investment Securities LLC (“BMIS”). Plaintiffs allege that defendants failed to conduct adequate diligence regarding Madoff, ignored “red flags” that should have alerted them to Madoff's fraud, and made misstatements and omissions in connection with the sale of Optimal U.S. shares, causing plaintiffs to lose their investments and allowing defendants wrongfully to collect management fees.¹

On May 2, 2011, I granted in part defendants' motion to dismiss plaintiffs' Second Amended Complaint (“SAC”) for improper forum, lack of standing, and failure to state certain claims.²First, I dismissed the Santander Plaintiffs from this action on the grounds that a forum selection clause contained in the Terms and Conditions governing their accounts with SBT (“SBT Terms & Conditions”) required them to litigate all of their claims, against all defendants, in the Bahamas. Second, I dismissed the common law claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, gross negligence, third party breach of contract, and unjust enrichment brought by the Pioneer Plaintiffs and Santander Plaintiffs against OIS, Clark, and Banco Santander (Counts V–VII and IX–X) because any harm arising from such conduct was sustained by Optimal U.S., the only entity that could bring suit directly.

On August 26, 2011, I granted in part plaintiffs' motion for reconsideration of the May 2, 2011 Opinion and Order.³ I reinstated the Santander Plaintiffs' claims against OIS, Clark, and Banco Santander, but not against Santander U.S. In addition, I held that the “Wagoner Rule does not imbue Plaintiffs with standing to bring Counts V–VII and IX–X, thereby again dismissing those Counts.” ⁴

On October 13, 2011, I granted in part defendants' renewed motion to dismiss federal securities fraud claims based on allegedly materially misleading statements and omissions in Explanatory Memoranda (“EMs”) issued by Optimal Multiadvisors, Ltd. (“Multiadvisors”) in light of the Supreme Court's recent decision in Janus Capital Group v. First Derivative Traders.⁵ I dismissed claims against OIS pursuant to Section 10(b) of the Exchange Act ⁶ and Securities and Exchange Commission Rule 10b–5 ⁷ and against Banco Santander under Section 20(a) of the Exchange Act based on its control of OIS. I sustained Section 20(a) claims against OIS and Banco Santander based on their control of Optimal U.S.⁸

This opinion addresses defendants' Motion to Dismiss Plaintiffs' Fourth Amended Class Action Complaint. In this motion defendants contend that (1) the entire action should be dismissed under the doctrine of forum non conveniens; (2) plaintiffs' claims against Banco Santander for committing or assisting fraud should be dismissed; and (3) the claims of Pioneer should be dismissed. For the reasons discussed below, defendants' motion to dismiss is granted in part and denied in part.

II. LEGAL STANDARDSA. Motion to Dismiss

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court evaluates the sufficiency of the complaint under the “two-pronged approach” suggested by the Supreme Court in Ashcroft v. Iqbal.⁹ First, a court “ ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’ ” ¹⁰ “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to withstand a motion to dismiss.¹¹ Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” ¹² To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of “plausibility.” ¹³ A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” ¹⁴ Plausibility “is not akin to a probability requirement;” rather, plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” ¹⁵

“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” ¹⁶ However, the court may also consider a document that is not incorporated by reference, “where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.” ¹⁷

B. Federal Rule of Civil Procedure 9(b)

Rule 9(b) provides that “the circumstances constituting fraud ... shall be stated with particularity.” To satisfy the particularity requirement, a complaint must: “ ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” ¹⁸ However, “intent, knowledge, and other conditions of mind may be averred generally.” ¹⁹

III. APPLICABLE LAWA. Forum Non Conveniens

“[F]ederal courts have the power to dismiss damages actions under the common-law forum non conveniens doctrine ... in ‘cases where the alternative forum is abroad.’ ” ²⁰ The “decision to dismiss by reason of forum non conveniens is confided to the sound discretion of the district court.” ²¹ “ ‘[I]n the determination of a motion to dismiss for forum non conveniens, the court may consider affidavits submitted by the moving and opposing parties.’ ” ²²

The Second Circuit continues to employ a three-part test established in the seminal case of Iragorri v. United Technologies Corporation in addressing motions to dismiss under the doctrine of forum non conveniens. ²³ “At step one, a court determines the degree of deference properly accorded the plaintiff's choice of forum. At step two, it considers whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute. Finally, at step three, a court balances the private and public interests implicated in the choice of forum.” ²⁴

“[A] court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiff's choice of forum will stand.” ²⁵ However, “the degree of deference given to a plaintiff's forum choice varies with the circumstances” and “the choice of a United States forum by a foreign plaintiff is entitled to less deference.” ²⁶ In assessing the proper measure of deference,

[f]actors disfavoring forum non conveniens dismissal “include the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense. In contrast, Plaintiffs' choice of forum deserves minimal deference where that choice was motivated by attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum.” ²⁷

Thus, “the greater the plaintiff's or the lawsuit's bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be ... to gain dismissal” whereas “the more it appears that the plaintiff's choice of a U.S. forum was motivated by forum-shopping reasons ... the less deference the plaintiff's choice commands.” ²⁸

At step two, “the court must consider whether an adequate alternative forum exists.” ²⁹ “The defendant bears the burden of establishing that a presently available and adequate alternative forum exists.” ³⁰

Dismissal is not appropriate if an adequate and presently available alternative forum does not exist.... [A] forum may ... be inadequate if it does not permit the reasonably prompt adjudication of a dispute, if the forum is not presently available, or if the forum provides a remedy so clearly unsatisfactory or inadequate that it is tantamount to no remedy at all. ³¹

However, “[a]n alternative forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute.” ³² “An agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this requirement, and only on rare occasions will the alternative forum ... be so unsatisfactory that the forum is inadequate.” ³³ Moreover, “[t]he availability of an adequate alternative forum does not depend on the existence of the identical cause of action in the other forum, nor on identical remedies.” ³⁴

“At step three, Defendants must establish that a balancing of the private and public interest...