Kutten v. Bank of America, N.A.

• Decision Date: 16 June 2008
• Docket Number: No. 07-3565.,07-3565.
• Parties: Ellen Jane KUTTEN, individually and on behalf of her daughters, Plaintiff, Mary Ann Arnold; Elise Mahler Scharff, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. BANK OF AMERICA, N.A.; Bank of America Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

530 F.3d 669

Ellen Jane KUTTEN, individually and on behalf of her daughters, Plaintiff, Mary Ann Arnold; Elise Mahler Scharff, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. BANK OF AMERICA, N.A.; Bank of America Corporation, Defendants-Appellees.

No. 07-3565.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2008.

Filed: June 16, 2008.

Richard A. Lockridge, Gregg M. Fishbein, Nathan D. Prosser, Minneapolis, MN, for Plaintiffs/Appellants.

Gregory S. Spencer, San Francisco, CA, James C. Martin, Gregory B. Jordan, Mary J. Hackett, David J. Bird, Pittsburgh, PA, Jeffrey Scott Russell, Elizabeth C. Carver, St. Louis, MO, for Defendants/Appellees.

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

This case is one of the "at least five class actions in various jurisdictions seeking redress for the same alleged injuries" as claimed by the plaintiffs in Siepel v. Bank of America, N.A., 526 F.3d 1122, 1125 (8th Cir.2008). Finding the case "nearly identical" to Siepel, which it had earlier dismissed, the district court¹ dismissed all of the Appellants' class action claims as preempted by the Securities Litigation Uniform Standards Act of 1998 (SLUSA), 15 U.S.C. §§ 77p(b), 78bb(f)(1). We affirmed the district court in Siepel, and do so again in this case.

Just as in Siepel, the Appellants' class action claims center on Bank of America's alleged plan to funnel trust assets into a mutual fund substantially owned by the Bank. See id. at 1124. In their Amended Complaint, the Appellants asserted twelve class action claims, including breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, unjust enrichment, breach of contract, violation of the California Probate Code, violation of the California Business and Professions Code, and violation of the California and Missouri Prudent Investor Acts. Each of the substantive claims "repeat[ed] and reallege[d]" the allegations made in the previous pages of the complaint.

The Siepel plaintiffs conceded that their complaint contained allegations that the Bank misrepresented and omitted material facts. Id. at 1126. Although their complaint also rests on the same alleged plan by the Bank, the Appellants attempt to distinguish their complaint from the one in Siepel. In filings with this court, they assert that their complaint "does not contain any allegations that facts were concealed. Nor does the Complaint in this action allege there were any omissions of facts or misrepresentations made to Plaintiffs." "[D]ifferent results can be reached based upon changes in the language used in the complaint," they urge.

We review a district court's dismissal based on SLUSA preemption de novo, as a dismissal for failure to state a claim. Siepel, 526 F.3d at 1124. SLUSA preempts state-law class actions that allege an untrue statement or omission of a material fact, or the use of a manipulative or deceptive device or contrivance "in connection with the purchase or sale of a covered security." 15 U.S.C. §§ 77p(b), 78bb(f)(1); Siepel, 526 F.3d at 1126. In determining whether SLUSA applies, we do not rely on the names of the causes of action that the plaintiff alleges. Instead we look at the substance of the allegations, based on a fair reading. See Sofonia v Principal Life Ins. Co., 465 F.3d 873, 879-80 (8th Cir.2006); Dudek v. Prudential Sec., Inc., 295 F.3d 875, 879-80 (8th Cir. 2002i. SLUSA preemption is based on the conduct alleged, not the words used to describe the conduct.

In the hearing on the Bank's motion to dismiss, Judge Magnuson attempted to purge the allegations of fraudulent conduct from the Appellants' Amended Complaint, and decide whether their complaint was different from that in Siepel. The Appellants' counsel explained:

[The Bank's transfers of fiduciary account assets to Nations Funds] in fact were a cloak for self-dealing and engaging in conflict of interest transactions. ... It's a breach of fiduciary duty case, and that duty includes disclosing to beneficiaries certain information.

After further argument, Judge Magnuson asked if the complaint was "no more than a regurgitation of the words of the misrepresentation." Counsel replied:

[C]ertainly one of the components [of a fiduciary duty] is ......