The opinion of the court was delivered by: Leisure, District Judge.
Plaintiff brings this action alleging violations of federal
securities law. On June 18, 1996, the Court granted defendant
John Romano's motion to dismiss plaintiff's third claim for
relief, pursuant to Fed.R.Civ.P. 12(b)(6). See S.E.C. v. U.S.
Envtl., Inc., 929 F. Supp. 168 (S.D.N.Y. 1996). On August 25,
1998, the United States Court of Appeals for the Second Circuit
reversed and remanded to this Court for consideration of Romano's
motion to dismiss the same claim under Fed. R.Civ.P. 9(b). See
S.E.C. v. U.S. Envtl., Inc., 155 F.3d 107 (2d Cir. 1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 1755, 143 L.Ed.2d 787 (May 17,
Plaintiff's third claim for relief alleges market manipulation
by movant in violation of Section 17(a) of the Securities Act of
1933, 15 U.S.C. § 77q(a), Section 10(b) of the Securities
Exchange Act of 1934, 15
239 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5. See
Am.Compl. at 40.*fn1
To state a cause of action under § 10(b) or Rule 10b-5,
plaintiff must allege that defendant "(1) made a material
misrepresentation or a material omission as to which he had a
duty to speak, or used a fraudulent device; (2) with scienter;
(3) in connection with the purchase or sale of securities."
S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 308 (2d Cir.
1999) (citing S.E.C. v. First Jersey Securities, Inc.,
101 F.3d 1450, 1467 (2d Cir. 1996)).
In vacating the Court's dismissal of this claim on Rule
12(b)(6) grounds, the Second Circuit made clear that plaintiff's
complaint adequately stated a prima facie case of market
manipulation against Romano. See U.S. Envtl., 155 F.3d at 112.
More specifically, the Second Circuit found that plaintiff's
complaint properly alleged that Romano had "committed a
manipulative act, by effecting the very buy and sell orders that
manipulated USE's stock upward." Id. (internal quotes and
citation omitted). The Second Circuit likewise found that "the
complaint's claim that Romano recklessly participated in the
manipulation also alleges sufficient scienter." Id. at 111.
That Romano's alleged conduct related to the purchase or sale of
securities is beyond dispute. Accordingly, plaintiff has stated a
prima facie manipulation case against Romano. See generally
Monarch, 192 F.3d 295.
Defendant Romano now argues that, notwithstanding the Second
Circuit's holding on Rule 12(b)(6) grounds, plaintiff's third
claim must be dismissed for failure to comply with Fed.R.Civ.P.
9(b). Rule 9(b) requires that "[i]n all averments of fraud . . .
the circumstances constituting fraud . . . shall be stated with
particularity." Fed.R.Civ.P. 9(b).
The Second Circuit has held that Rule 9(b) applies to § 10(b)
and Rule 10b-5 securities fraud claims, see Stevelman v. Alias
Research Inc., 174 F.3d 79, 84 (2d Cir. 1999) (citing Decker v.
Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir. 1982)),
including market manipulation claims. See, e.g., Baxter v. A.R.
Baron & Co., 1995 WL 600720 at *6 (S.D.N.Y. Oct. 12, 1995)
(Koeltl, J.) (citing Rooney Pace, Inc. v. Reid, 605 F. Supp. 158,
162 (S.D.N.Y. 1985) (Weinfeld, J.)) Accordingly, plaintiff's
third claim for relief must state the circumstances surrounding
the alleged manipulation with particularity. See Fed.R.Civ.P.
The law is unclear in this Circuit, however, as to how Rule
9(b) should be applied to a market manipulation claim. In the
context of ordinary § 10(b) and Rule 10b-5 claims involving
alleged affirmative misrepresentations, Rule 9(b) clearly
requires that the complaint: "(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." Stevelman, 174 F.3d at 84
(quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d
Cir. 1993)). This standard is inappropriate, however, in the
context of market manipulation, as such claims do not necessarily
involve affirmative misrepresentations. Accordingly, to require
slavish satisfaction of these judicially-fashioned elements would
make plaintiff's task impossible in many cases. Although the
Second Circuit has not specifically ruled on this question, other
courts in this District have fashioned a separate, relaxed
pleading standard for market manipulation claims under § 10(b)
and Rule 10b-5. To satisfy Rule 9(b), a market manipulation claim
must specify "`what manipulative acts were performed, which
defendants performed them, when the manipulative acts were
performed, and what effect the scheme had on the market for the
securities at issue.'" T.H.C., Inc. v. Fortune Petroleum Corp.,
1999 WL 182593 at *3 (S.D.N.Y. Mar. 31, 1999) (Batts, J.)
(quoting Baxter, 1995 WL 600720 at *6); see also S.E.C. v.
Schiffer, 1998 WL 226101 (S.D.N.Y. May 5, 1998) (Owen, J.); In
re Blech Secs. Litig., 961 F. Supp. 569, 585 (S.D.N.Y. 1997)
(Sweet, J.). The Court finds that this standard is a proper
application of Rule 9(b) to the context of market manipulation,
insofar as it effects the Rule's purpose of: "provid[ing] a
defendant with fair notice of a plaintiff's claim" and
"safeguard[ing] a defendant's reputation from improvident charges
of wrongdoing." Shields v. Citytrust Bancorp, Inc.,
25 F.3d 1124, 1128 (2d Cir. 1994).
Defendant also argues that Rule 9(b) requires plaintiff to
plead every manipulative stock trade individually, despite
plaintiff's contention that this would amount to hundreds of
trades. The Court agrees with plaintiff that defendant's demand
for the pleading of detailed evidentiary matter is unreasonable
at this early stage, see, e.g., Schlick v. Penn-Dixie Cement
Corp., 507 F.2d 374, 379 (2d Cir. 1974), and that such an
application of Rule 9(b) ignores the Second Circuit's repeated
exhortation that Rule 9(b) "must be read together with Rule 8(a),
which requires only a `short and plain statement of the claim'
for relief." Ouaknine v. MacFarlane, 897 F.2d 75, 81 (2d Cir.
1990) (quoting DiVittorio v. Equidyne Extractive Industries,
Inc., 822 F.2d 1242, 1247 (2d Cir. 1987)). By including in its
complaint detailed descriptions of a few sample trades, and by
alleging more broadly that John Romano executed "wash sales" and
"matched orders" of U.S.E. stock during a particular time frame,
with the effect of inflating the market price of the stock during
that period, plaintiff satisfies the standard outlined above, and
places defendant adequately on notice of the allegations against
him so that he may prepare his defense. See Am.Compl. ¶¶ 73-94.
In their briefs, the parties give substantial attention to the
issue of scienter. While scienter is indeed a required element of
a claim made under § 10(b) or Rule 10b-5, the application of Rule
9(b) is relaxed where, as here, plaintiff is required to plead
defendant's state of mind. See Fed.R.Civ.P. 9(b); see also,
e.g., Ouaknine, 897 F.2d at 81. In the case at bar, the Second
Circuit has held that plaintiff pleaded scienter adequate to
survive Romano's Rule 12(b)(6) motion on the third claim. See
U.S. Envtl., 155 F.3d at 112.
Rule 9(b) makes clear that "[m]alice, intent, knowledge, and
other condition of mind of a person may be averred generally."
Fed.R.Civ.P. 9(b); see also, e.g., Shields, 25 F.3d at 1128.
Because a plaintiff "cannot be expected to plead a defendant's
actual state of mind," Connecticut Nat'l Bank v. Fluor Corp.,
808 F.2d 957, 962 (2d Cir. 1987), the plaintiff is entitled to a
"strong inference" of fraud, if it (a) alleges facts to show that
defendant had both motive and opportunity to commit fraud, or (b)
alleges facts that constitute strong circumstantial evidence of
conscious misbehavior or recklessness. See, e.g., Press v.
Chemical Investment Serv. Corp., 166 F.3d 529, 538 (2d Cir.
1999); Shields, 25 F.3d at 1128. At the very least, the Court
finds that plaintiff's complaint alleges facts that constitute
strong circumstantial evidence of conscious misbehavior or
recklessness, sufficient to justify plaintiff's inference of
Finally, defendant Romano argues that plaintiff's complaint
fails to distinguish the roles of the various defendants in the
alleged stock manipulation scheme. Defendant is correct that,
"[w]here multiple defendants are asked to respond to allegations
of fraud, the complaint should inform each defendant of the
nature of his alleged participation in the fraud." DiVittorio,
822 F.2d at 1247; see also, e.g., Lobatto v. Berney, 1999 WL
672994 at *9-*10 (S.D.N.Y. Aug. 26, 1999); Doehla v. Wathne
Limited, Inc., 1999 WL 566311 at *17 (S.D.N.Y. Aug. 3, 1999).
While plaintiff must satisfy Rule 9(b) as to each individual
defendant, and cannot do so by making vague allegations about the
defendants as a unit, the so-called "group pleading" question is
not an issue in this case. The Court finds that plaintiff has
adequately distinguished the roles of each participant in the
alleged scheme, such that Romano can readily ascertain what part
he is alleged to have played in the stock manipulation.
Accordingly, because each element of plaintiff's market
manipulation claims against defendant John Romano satisfies Rule
9(b) of the Federal Rules of Civil Procedure,*fn2 defendant's
motion to dismiss the claim is hereby DENIED. The parties are
hereby ordered to appear for a pre-trial conference on February
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