The opinion of the court was delivered by: KNAPP
Plaintiff has brought this action against her former stockbroker and the four institutions for which he worked over the period between July, 1977 and May, 1982. The complaint alleges violations of § 10(b) of the Securities Act of 1934 and Rule 10b-5 promulgated thereunder; common-law fraud; and violations of the Rules of the New York Stock Exchange and National Association of Securities Dealers. Two of the institutional defendants, Shearson/American Express (Shearson) and Rothschild, Unterberg, Towbin (Rothschild), have moved to dismiss the complaint in its entirety.
For the reasons stated below, we grant this motion as to Counts II and III of the Complaint, but otherwise deny it. We shall address each Count of the Complaint in order.
Count I states a claim of excessive trading ("churning") of the accounts plaintiff maintained in turn with each institution for which Hochman, the individual broker, worked. "Churning has been held to be a deceptive device within § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, for which a private cause of action for damages will lie." Newburger, Loeb & Co., Inc. v. Gross (2d Cir. 1977) 563 F.2d 1057, 1069, cert. denied 434 U.S. 1035, 54 L. Ed. 2d 782, 98 S. Ct. 769 (1978).
Defendants urge that Count I must be dismissed for insufficiency of pleading under Rule 9(b) of the Federal Rules of Civil Procedure, which provides that "in all averments of fraud . . . the circumstances constituting fraud . . . shall be stated with particularity." We reject this contention.
The Complaint states that plaintiff is sixty-seven years old, unmarried, unlearned in financial matters, and was, at the beginning of the events complained of, of moderate but dwindling income. The Complaint further alleges that plaintiff was completely dependent on defendant Hochman, to whom she entrusted her account as he moved from one brokerage house to another, for all financial advice and information. Plaintiff further alleges that she had given Hochman complete control over her originally modest portfolio on the express understanding that he was to manage it conservatively and take no unnecessary risks, which instructions plaintiff alleges he knowingly and deliberately violated.
With respect to defendants Rothschild and Shearson, plaintiff has set forth the dollar amounts of shares traded during the periods when they, through Hochman, managed her account. This information is stated for the entirety of the relevant periods and is further broken down into smaller periods of time ranging from six to eleven months [para. 20; para. 37]. The Complaint further specifies the number of times plaintiff's average monthly capital was turned over, as reflected in these figures [para. 21; para. 38]; the percentage of the total number of trades completed in each month of the relevant periods [para. 22; para. 39]; and the commissions paid to the defendants by plaintiff as a result of these trades [para. 25; para. 40]. With respect to defendant Rothschild alone, plaintiff has further stated the net capital gains taxes paid during the relevant period and the circumstances surrounding such payments, including allegedly false and fraudulent communications made to her on the subject by both Hochman and Rothschild.
We have held that a complaint must be dismissed if it contains no more than "unsubstantiated conclusory allegations," Vetter v. Shearson Hayden Stone, Inc. (S.D.N.Y. 1979) 481 F. Supp. 64, 65. In that case, plaintiff's averments of churning consisted only of the statements that the defendant had
entered upon a course of conduct of selling and purchasing securities in [plaintiff's] securities account which were (a) excessive in number, frequency and amount; (b) not authorized by her; and (c) not consistent with her investment objective.
While the information provided in the instant case might certainly be said to fall short of what a defendant could wish, we cannot say that plaintiff has set forth no more than such wholly conclusory, unsupported allegations. Especially in light of plaintiff's allegation that defendant Hochman repeatedly advised her to throw away her copies of the confirmation slips recording these trades (Complaint, para. 14), we cannot find that Count I is so lacking in specific information as to require its dismissal.
Count II of the Complaint purports to state a cause of action of "unsuitability and lack of supervision" under New York Stock Exchange Rule 405 and National Association of Securities Dealers Rules of Fair Practice Article III, Section 2. We find that this Count must be dismissed, since there is no federal right of action under these Rules.
Under the standards enunciated by the Second Circuit in Colonial Realty Corp. v. Bache & Co. (2d Cir. 1966) 358 F.2d 178, and by the Supreme Court in Touche Ross & Co. v. Redington (1979) 442 U.S. 560, 61 L. Ed. 2d 82, 99 S. Ct. 2479, and Transamerica Mortgage Advisors v. Lewis (1979) 444 U.S. 11, 62 L. Ed. 2d 146, 100 S. Ct. 242, in order to show that such a right of action exists, a plaintiff must demonstrate that such was Congress' intent. This plaintiff has totally failed to do.
Plaintiff has restricted her argument in this matter to the citation of two cases previously decided by us, Carroll v. Bear Stearns & Co. (S.D.N.Y. 1976) 416 F. Supp. 998, and Vetter v. Shearson Hayden Stone , Inc. (S.D.N.Y. 1979) supra, 481 F. Supp. 64. These cases, however, do not stand for the proposition that such a right of action exists. Indeed, contrary to plaintiff's interpretation, Vetter specifically reserved decision on this issue. 481 F. Supp. at 66. Both of these cases simply restated the holding of the Second Circuit in Colonial Realty, that Congress did not intend to provide a federal right of action that could be invoked by "mere recitation of the statutory watchword by an aggrieved investor." 358 F.2d at 183. We thus held that, where a complaint is so deficient as to warrant dismissal under Rule 9(b), no such right of action will be implied.
We have, since that time, seen no persuasive demonstration of Congress' intent to create a federal right of action under the Rules at issue. On the contrary, as Judge Conner observed in Colman v. D.H. Blair & Co., Inc. (S.D.N.Y. 1981) 521 F. Supp. ...