Silvercreek Mgmt., Inc. v. Citigroup, Inc., 02-CV-8881 (JPO)

• Decision Date: 28 September 2018
• Docket Number: 02-CV-8881 (JPO)
• Parties: SILVERCREEK MANAGEMENT, INC., et al., Plaintiffs, v. CITIGROUP, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

346 F.Supp.3d 473

SILVERCREEK MANAGEMENT, INC., et al., Plaintiffs,

v.CITIGROUP, INC., et al., Defendants.

02-CV-8881 (JPO)

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

Signed September 28, 2018

Daniel A. Shmikler, Elizabeth Laughlin, Eugene J. Frett, Matthew H. Rice, Bruce S. Sperling, Sperling & Slater, P.C., Scott F. Hessell, Chicago, IL, H. Adam Prussin, Stanley Merrill Grossman, Pomerantz, Haudek, Block, Grossman & Gross, L.L.P., Lyndon Mitchell Tretter, Wollmuth Maher & Deutsch LLP, New York, NY, for Plaintiffs.

Richard W. Clary, Daniel Craig Lewis, Adam Selim Hakki, Mary Christina Pennisi, Shearman & Sterling LLP, Owen C. Pell, Scott Edward Hershman, Jacqueline Chung, Joshua Douglas Weedman, White & Case LLP, David Harold Korn, Winnifred Amanda Lewis, Cravath, Swaine & Moore LLP, New York, NY, Daniel M. Petrocelli, Jeffrey A. Barker, Ashley Berk, Laura Perry, O'Melveny & Myers, LLP, Los Angeles, CA, C. Robert Mace, Tekell Book Allen & Morris, L.L.P., Houston, TX, for Defendants.

Bank of America Corporation, pro se.

OPINION AND ORDER

J. PAUL OETKEN, United States District JudgePlaintiffs, a group of investment funds known as "Silvercreek," brought this action against Defendants, a set of financial institutions, for conduct relating to the issuance of debt securities by Enron Corporation ("Enron").¹ Plaintiffs assert claims under New York state tort law and under federal and Texas securities laws. Defendants Credit Suisse, Deutsche Bank, and Merrill Lynch each move for summary judgment. (Dkt. Nos. 114–15, 121.) For the reasons that follow, the motions are granted in part and denied in part.

I. Background

Like many of the others to have emerged from the Enron bankruptcy, this is a case whose "facts are difficult to detail but easy to summarize." Regents of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc. , 482 F.3d 372, 377 (5th Cir. 2007). Familiarity with the factual background of this particular dispute is presumed based on this Court's prior opinion on Defendants' motion to dismiss, see Silvercreek Mgmt., Inc. v. Citigroup, Inc. , 248 F.Supp.3d 428, 434–36 (S.D.N.Y. 2017), and the relevant facts will be detailed with greater particularity below. The following general background is drawn primarily from the parties' Rule 56.1 statements and is not subject to genuine dispute unless otherwise noted.

Between October 18, 2001, and October 26, 2001, Plaintiffs invested over $100 million in two different Enron securities: the 7% Exchangeable Notes (the "7% Notes") and Zero Coupon Exchangeable Notes (the "Zero Notes" or "Zeros"). (Dkt. No. 221 ("DBSUF") ¶ 344; Dkt. No. 215 ("CSSUF") ¶¶ 118, 127; Dkt. No. 220 ("MLSUF") ¶¶ 218, 250, 253.) Plaintiffs' purchase of the notes came at a turbulent time for Enron. Cautionary signs regarding the company's stability were beginning to emerge, including the departure of some high level executives, revised financial statements, and the announcement of an SEC inquiry into Enron's financials. (MLSUF ¶ 256; CSSUF ¶ 693.) But balanced against these warning signs was Enron's continued issuance of positive press releases confirming its financial solvency. (MLSUF ¶¶ 259–60.) And analyst and credit agency reports around this key eight-day period were mixed, with some downgrading their assessments of Enron's credit-worthiness but most continuing to recommend Enron as a strong buy or safe investment. (MLSUF ¶¶ 266–84; see also generally Dkt. No. 139-79.) Some of the many positive reports about Enron issued in October 2001 came from the Defendants in this case. (See, e.g. , MLSUF ¶¶ 270–71, 275, 279, 281–82, 284; Dkt. No. 168-45 at 2 (October 26, 2001 Credit Suisse analyst report listing Enron as "strong buy"); DBSUF ¶¶ 358–59.)

Unfortunately for Plaintiffs, time would soon vindicate those skeptical of Enron's financials. On November 8, 2001, Enron was forced to again issue restatements of its audited financials, this time correcting all of its annual reports going back to 1997 as well as its first two 2001 quarterly reports, resulting in billion-dollar changes to reported shareholder equity and balance sheet debt.² (CSSUF ¶¶ 714–17; DBSUF ¶¶ 351–56.) On December 2, 2001, Enron filed for Chapter 11 Bankruptcy, wiping out practically the entire value of Plaintiffs' late-October investments in Enron's securities. (DBSUF ¶¶ 363, 365.) Plaintiffs' resulting losses on these investments, along with Defendants' alleged role in perpetrating Enron's fraud and influencing Plaintiffs' purchase of Enron's overvalued securities, form the crux of this suit.

Enron's corrections to its financial statements, issued in the weeks following Plaintiffs' investments, stemmed primarily from the company's practice of engaging in transactions with unconsolidated special purpose entities ("SPEs") and off-balance-sheet transactions. (DBSUF ¶ 367.) Enron would conduct transactions with these SPEs—which Enron or its executives nominally controlled but whose assets and debts were not consolidated with Enron's—in order to hide debt and generate income, thereby producing a deceptive picture of Enron's financials. (Id. ) Each Defendant played some role in designing, marketing, funding or implementing a number of the transactions that Enron used to cook its books. (See, e.g. , DBSUF ¶¶ 378, 639–48; CSSUF ¶¶ 758–68, 800; MLSUF ¶¶ 341–45.) Each of the Defendants was also involved to varying degrees with the marketing and distribution of the 7% Notes and Zero Notes that Plaintiffs had purchased in late October 2001. (See, e.g. , MLSUF ¶ 245; CSSUF ¶¶ 120–26; DBSUF ¶¶ 704–13.)

Plaintiffs assert a number of claims based on Defendants' involvement in the transactions underlying Enron's fraud, as well as each Defendant's role in directly marketing Enron's securities to Plaintiffs. Specifically, at issue in these motions are six causes of action: claims against all three Defendants for (1) aiding and abetting Enron's fraud, (2) aiding and abetting Enron's negligent misrepresentation, and (3) conspiracy with Enron to commit fraud; claims against Credit Suisse and Merrill Lynch for (4) negligent misrepresentation; and claims against Credit Suisse and Deutsche Bank for violations of (5) Section 11 of the Securities Act, 15 U.S.C. § 77k(a), and (6) the Texas Securities Act ("TSA"). All of the Defendants now move for summary judgment on all claims.³

While the parties do not generally dispute the foregoing facts, they sharply contest the extent to which the Defendants understood Enron's overall scheme and the legal significance of their contributions to Enron's fraud. Despite turning on a wide range of materials and evidence, the parties' disputes can largely be boiled down to a few core questions:

• Were the Defendants' transactions with Enron inherently fraudulent, or was it only Enron's deceitful reporting of these otherwise legitimate transactions that formed the basis of the underlying fraud? (Dkt. No. 217 ("DB Reply") at 6–14.)

• To what extent was each Defendant aware of Enron's overall fraudulent scheme, and to what extent can each Defendant's transactions be said to have actually furthered Enron's overall fraudulent scheme? (Dkt. No. 219 ("ML Reply") at 2–8, 16–19.)

• Can Plaintiffs establish that they relied on Enron's false financial statements, or on Defendants' own inaccurate assessments of Enron's financial stability, when purchasing the Enron securities? (Dkt. No. 214 ("CS Reply") at 7–13.)

Did either Enron or the Defendants directly owe Plaintiffs a duty to accurately report information regarding Enron's financial solvency and the value of its securities? (CS Reply at 3–7; ML Reply at 21–22.)

Each of these questions is addressed in detail below.

II. Legal Standard

A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." SCR Joint Venture L.P. v. Warshawsky , 559 F.3d 133, 137 (2d Cir. 2009) (quoting Roe v. City of Waterbury , 542 F.3d 31, 35 (2d Cir. 2008) ).

Where the nonmoving party will bear the burden of proof at trial, the moving party may establish the propriety of summary judgment by "point[ing] to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim." Jaramillo v. Weyerhaeuser Co. , 536 F.3d 140, 145 (2d Cir. 2008). Once the moving party has done so, the burden shifts to "the nonmoving party [to] come forward with admissible evidence sufficient to raise a genuine issue of fact for trial" on each essential element of their claims. Id.

To defeat summary judgment, the nonmoving party cannot rely merely on "some metaphysical doubt as to the material facts" or on "conclusory allegations or unsubstantiated speculation." Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005) (citations omitted). Instead, the nonmoving party must point to concrete "evidence on which the jury could reason ablyfind for the plaintiff." Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In evaluating whether the nonmoving party has met their burden, courts are to construe the evidence in the light most favorable to the nonmoving party and draw all inferences in their favor, asking "not whether ... the evidence unmistakably favors one[ ] side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 553 (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).⁴

III. Discussion

The Court addresses Defendants' motions for summary judgment on each of Plaintiffs' claims in turn.

A. Aiding and Abetting Fraud

Silvercreek brings claims of aiding and abetting fraud against all of the Defendants. (TAC ¶¶ 802–13.) The elements of an...