People v. Schwab
Decision Date | 27 August 2013 |
Citation | 971 N.Y.S.2d 267,2013 N.Y. Slip Op. 05722,109 A.D.3d 445 |
Parties | The PEOPLE of the State of New York by Andrew W. CUOMO, etc., Plaintiff–Appellant, v. CHARLES SCHWAB & CO., INC., Defendant–Respondent. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Eric T. Schneiderman, Attorney General, New York (Brian A. Sutherland of counsel), for appellant.
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Faith E. Gay of counsel), for respondent.
Appeal from order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 31, 2011, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), deemed appeal from judgment, same court and Justice, entered April 4, 2012, dismissing the complaint, and, so considered, said judgment unanimously modified, on the law, to deny the motion as to the second and third causes of action insofar as they are based upon conduct that took place prior to September 5, 2007, and otherwise affirmed, without costs.
This is an enforcement action brought by the Attorney General under the Martin Act (General Business Law art. 23–A) and General Business Law § 349 as well as Executive Law § 63(12). The Martin Act causes of action are based on General Business Law § 352–c(1)(a), which, where applicable, prohibits fraud, concealment, suppression or false pretense, and General Business Law § 352–c(1)(c), which prohibits false representations or statements to induce or promote the issuance, purchase or sale of securities within or from the State. It is alleged in the complaint that defendant, Charles Schwab & Co., Inc. (Schwab), a registered securities broker-dealer, engaged in fraudulent and deceptive conduct in the sale of auction rate securities (ARS) to the investing public. The Attorney General asserts that Schwab misrepresented ARS to its customers as safe, liquid investments while concealing the fact that they were complex financial instruments with significant, inherent and increasing liquidity risks.
An explanation of the Attorney General's claims requires a description of the ARS market, which is set forth in the complaint as follows:
“21. Until February 2008, underwriter broker-dealers generally supported the auction rate securities market by systematically purchasing auction rate securities into their own inventories in order to make up for shortfalls in natural demand that would have, in the absence of such support, caused the auctions for those securities to fail. These proprietary bids placed by the underwriter broker-dealers for their own accounts were known as ‘support bids.’
1
The complaint alleges that Schwab became aware of failures in the ARS market and associated liquidity risks as early as August 2007. In February 2008, broker-dealers had stopped making support bids, causing a wholesale failure in the market for ARS. At that time, Schwab directed that its sales force advise its customers that ARS did not carry a 100% certainty of liquidity. Accordingly, investors who had purchased ARS from Schwab found themselves holding investments that were not as liquid as they had been purportedly led to believe.2 The complaint alleges that “Schwab persistently failed to disclose, or made representations that concealed, the risk that customers could lose liquidity should auctions fail.”
In dismissing the Martin Act causes of action, the court concluded that the “misrepresentations alleged were true when made and the complaint contains no allegations that ARS were liquid at a time when they were illiquid.” The court based this conclusion on its own finding that there had been no failures in the auctions in the 20 years preceding August 2007. In reaching this conclusion, the court erroneously engaged in an evaluation of the merits of the Martin Act causes of action. On a ...
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