Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Southern District of New York

June 25, 2002


The opinion of the court was delivered by: Scheindlin, District Judge.


This is a class action brought against Credit Suisse First Boston Corporation ("Credit Suisse" or "CSFB") on behalf of internet-related and high technology companies that hired Credit Suisse to underwrite their initial public offering of stock ("IPO"). Plaintiffs' four causes of action are state law claims related to underwriting contracts that they entered into with Credit Suisse. Three of these claims assert that Credit Suisse breached the expressed terms of the contracts as well as the implied covenants and the fiduciary duties arising under those contracts. See 2/4/02 Amended Complaint ("Am.Compl.") ¶¶ 32-55. The fourth claim alleges unjust enrichment. See id. ¶¶ 56-61.

Credit Suisse now moves to dismiss the Complaint in its entirety or in part. See infra Part III.C. For the reasons discussed below, this motion is denied.


This Court has jurisdiction over the complaint because there is diversity of citizenship between the parties. See Am. Compl. ¶ 4 (citing 28 U.S.C. § 1332). Plaintiff MDCM Holdings, Inc. ("MDCM") is a Florida corporation with its principal place of business in Florida. See id. ¶ 6. Defendant Credit Suisse is a Massachusetts corporation with its principal executive office in New York. See id. ¶ 7. Credit Suisse's Technology Group, which participated in the IPOs of the putative class members, has its headquarters in San Francisco, California. See id. The Complaint seeks relief only under New York state law, as required by the underwriting contracts. See id. ¶ 33.

The original Complaint was filed on May 25, 2001, in the Southern District of Florida. On October 5, 2001, Credit Suisse and MDCM presented the Florida district court with a joint stipulation seeking a transfer to this Court. That transfer was ordered on October 10, 2001. Venue is proper in this district because Credit Suisse maintains its principal place of business in the Southern District of New York, and a substantial part of the events giving rise to the plaintiffs' claims occurred here. See 28 U.S.C. § 1391(a), (c).


Under the Federal Rules of Civil Procedure, plaintiffs need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply `give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.

Thus, when deciding a motion to dismiss, courts "must accept as true all of the factual allegations contained in the complaint." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Indeed, courts have long been required to follow "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99.


A. Allegations

Out of a desire to raise new capital, corporations often decide to sell ownership of the company to the public by issuing stock. The first step in this process requires a company to find an investment bank that will agree to underwrite its IPO.*fn1 Agreements between the company issuing the stock ("issuer") and the investment bank underwriting the IPO ("underwriter") are executed in a contract commonly referred to as an underwriting agreement.

As with most contracts between sophisticated parties, representatives of the company and the investment bank discuss many topics before signing on the bottom line. The parties generally negotiate the amount of capital that the company seeks to raise, the type of security to be issued, the price and any special features of the security, and the underwriter's compensation.*fn2 For example, the contract may "obligate the underwriter to acquire the IPO securities from the issuer at a [discounted] fixed price, and then resell the IPO securities to the public in accordance with the terms, and at a fixed offering price." Am. Compl. ¶ 15. The difference between these two prices is typically 7% of the IPO proceeds. See id. ¶ 19. The investment bank's profit in selling the issuer's stock to the public is intended to serve as compensation for its services. See id., a company that specialized in providing online mortgage services, was one of the many internet-related and high technology companies that went public in the late 1990s. In July 1999,'s Board of Directors authorized the corporation to enter into an underwriting agreement with Credit Suisse, one of the nation's leading underwriters.*fn3 See Am. Compl. ¶¶ 14, 18, 25. On August 11, 1999, and Credit Suisse executed the underwriting agreement. See 8/11/99 Underwriting Agreement at 1-17, attached as Ex. 1 to Appendix of Supplemental Materials provided by MDCM Holdings, Inc., at 1-17. The same day, shares in were issued to the public and began trading on the NASDAQ National Market under the ticker symbol "MDCM". Am. Compl. ¶ 25.

Pursuant to the underwriting agreement, sold 7,062,500 shares of common stock to Credit Suisse for $7.44 per share, exactly 7% less than the public offering price of $8.00 per share. See id. In addition, Credit Suisse exercised an option under the underwriting agreement and acquired 379,375 additional shares for the same price. See id. As a result,'s IPO generated gross proceeds of approximately $59.5 million. See id. The compensation for Credit Suisse's service was $4,167,450. See id.

Two weeks after the IPO,'s stock had almost doubled in value. See id. ¶ 26. On August 26, the stock price hit $22-3/4 per share, closing at $15-3/8 per share. See id. Such an increase was not unusual during the late 1990s: was one of many issuers whose shares dramatically increased in value after being issued to the public. See id. ¶ 22. "In 1998 and 1999," for example, "the value of IPO shares frequently surged 400-500% during the first day of trading." Andres Rueda, "The Hot IPO Phenomenon and the Great Internet Bust," 7 Fordham J. Corp. & Fin. L. 21, 23 (2001). "Indeed, data published by Professor Jay Ritter of the University of Florida notes that the 10 biggest first-day IPO percentage increases in history all took place within the Class Period herein."*fn4 Am. Compl. ¶ 28.

The complaint alleges that Credit Suisse used this phenomenon to enrich itself by requiring that customers who wanted to purchase IPO shares pay it the prospectus price plus, directly or indirectly, a share of profits that the customers realized.*fn5 See id. ¶¶ 37, 40. Credit Suisse's actual compensation was thus far greater than the amount agreed upon by the issuers in the underwriting agreements. See id. ¶¶ 30, 37, 40. Moreover, the Complaint asserts that Credit Suisse purposefully underpriced certain securities in order to guarantee that those shares would rise in value once issued to the public. See id. ¶¶ 2224. From the issuers' perspective, there was "money left on the table" because of this underpricing. Id. ¶ 22. For example, if's original offering price had been somewhere between the high and low price of August 26, 1999, the company would have realized additional gross proceeds of $54 million to $109 million. See id. ¶ 25.

B. MDCM's Class Action

On May 25, 2001, the corporation formerly known as, now called MDCM Holdings, Inc.,*fn6 sued Credit Suisse on behalf of issuers that had used the investment bank to underwrite their IPOs from January 1, 1998, to October 31, 2000. See Am. Compl. ¶ 1. The putative class is limited to companies whose securities "increased in value 15% or more above their original offering price within 30 days following the IPO."*fn7 Id. ¶ 1.

Count I of the Complaint alleges that Credit Suisse breached the explicit terms of the underwriting agreements in two ways. First, Credit Suisse did not sell the IPO shares to the public as the contract requires, but instead directed shares to favored customers. See id. ¶¶ 29, 39. Second, Credit Suisse did not sell the IPO shares for the price provided in the prospectus, but instead required purchasers to pay a higher price.*fn8 See id. ¶¶ 19, 36, 37. See also supra note 5.

Count II alleges that Credit Suisse violated implied covenants of good faith and fair dealing that accompanied its performance of the underwriting agreements. Credit Suisse allegedly violated these covenants by underpricing the IPO shares so that it could allocate undervalued shares to favored clients and receive additional compensation. See id. ¶ 49. As a result, the issuers received deficient and overpriced underwriting services. See id.

Count III alleges that Credit Suisse owed fiduciary duties of loyalty, due care and fair dealing to the issuers. These duties arose because Credit Suisse was the underwriter of the IPOs and had superior knowledge and expertise, receipt of confidential information, and acted as an agent and advisor to the issuers. See id. ¶¶ 52-53. According to the Complaint, Credit Suisse violated those duties by allocating shares to favored customers and sharing in the profits made by those customers. See id. ¶¶ 54-55.

Count IV is brought in the alternative to Counts I through III.*fn9 See id. ¶ 58. It asserts a claim of unjust enrichment against Credit Suisse on the ground that the issuers "conferred benefits upon Defendant in connection with their IPOs which, in the circumstances . . . would be inequitable for Defendant to retain." Id. ¶ 58. Count IV further alleges that the profit-sharing compensation from favored customers unjustly enriched Credit Suisse. See id. ¶¶ 60, 61.

C. Credit Suisse's Motion to Dismiss

Credit Suisse argues that MDCM's complaint should be dismissed, in its entirety or in part, for five reasons. "First, MDCM's state law claims are barred by the Securities Litigation Uniform Standards Act of 1998 (`SLUSA'), Pub L. No. 105-353, 112 Stat. 3227 (codified at 15 U.S.C. § 77p, 78bb(f))." Memorandum of Law in Support of Defendant Credit Suisse First Boston's Corporation's Motion to Dismiss the Amended Complaint ("Def.Mem.") at 2. "Second, MDCM lacks standing to assert these claims." Id. "Third, claims for breach of contract and the implied covenant of good faith and fair dealing are deficient because MDCM does not and cannot identify any contractual provision that has been breached." Id. "Fourth, MDCM cannot claim that CSFB was unjustly enriched because . . . the doctrine of unjust enrichment cannot be used here to create new contract obligations where a valid written agreement already exists." Id. "Finally, the claim for breach of fiduciary duty is preempted under New York's Martin Act, N.Y. Gen. Bus. Law § 352 [New York's securities statute], et seq." Id.


A. Statutory Framework and Purpose

When Congress enacted the Private Securities Litigation Reform Act of 1995 ("PSLRA"), it sought to raise the bar for bringing class actions under the Securities Act of 1933 and Securities Exchange Act of 1934. Among other things, the PSLRA heightened pleading standards, generally required courts to stay discovery pending resolution of a motion to dismiss, and placed limits on recovery. See 15 U.S.C. § 77z-1 to-2 (Securities Act of 1933); 15 U.S.C. § 78u-4 to -5 (Securities Exchange Act of 1934). In the aftermath of the PSLRA, however, plaintiffs increasingly filed securities class actions in state courts under state law theories of liability.*fn10

Congress responded in 1998 by enacting SLUSA, which aims to "prevent plaintiffs from seeking to evade the protections that Federal law provides against abusive litigation by filing suit in State court, rather than Federal court." H.R.Rep. No. 105803 (1998). The purpose of SLUSA was to make federal court the exclusive venue, and federal law the exclusive remedy, for most securities class actions. SLUSA provides in pertinent part:

No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging —

(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or

(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.

15 U.S.C. § 77bb(f)(1).

SLUSA thus provides for federal preemption of any claim that meets four prerequisites. The lawsuit must be: (1) a "covered class action"; (2) based on state law; (3) in which the plaintiff has alleged either a "misrepresentation or omission of a material fact" or "any manipulative or deceptive device or contrivance;" (4) "in connection with the purchase or sale of a covered security." Id. See also Green v. Ameritrade, Inc., 279 F.3d 590, 596 (8th Cir. 2002) (outlining four elements of SLUSA) (citations omitted). Because plaintiffs do not allege the third element of SLUSA — misrepresentations or omissions — the statute does not preempt their class action.*fn11

B. MDCM's Complaint Does Not Allege Any Misrepresentations or Omissions

When determining whether SLUSA preempts a lawsuit, a court is directed to look at what the "private party [is] alleging." 15 U.S.C. § 78bb(f)(1) (emphasis added).*fn12 MDCM only alleges than that Credit Suisse signed numerous contracts in which it promised to do one thing but then did another. "The failure to carry out a promise made in connection with a securities transaction is normally a breach of contract. It does not constitute fraud unless, when the promise was made, the defendant secretly intended not to perform or knew that he could not perform." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1176 (2d Cir. 1993). MDCM has not alleged that Credit Suisse had such an intent and, to prevail on its breach of contract claims, MDCM need not offer any evidence about Credit Suisse's mental state. Under its current claims, it only needs to prove that Credit Suisse did not satisfy the requirements laid out in the underwriting agreements. Therefore, the contract claims do not involve allegations of misrepresentation or omissions by Credit Suisse.*fn13

Credit Suisse argues that "courts . . . have disregarded state law labels and dismissed [such] claims under SLUSA." Def. Mem. at 8 (citations omitted). The cases relied on by Credit Suisse, however, involve plaintiffs who made explicit allegations of misrepresentation or material omission.*fn14 In none of those cases was it necessary for the court to rewrite the plaintiffs allegations by adding misrepresentation or fraud to the complaint, or for the court to speculate about the defendant's intent at the time it signed a contract.

Indeed, in the one case that this Court has found that squarely addresses whether SLUSA preempts class actions that are explicitly based on contract law, the court concluded it did not. See Green v. Ameritrade, 120 F. Supp.2d 795, 796 (Neb. 2000), aff'd on other grounds, 279 F.3d 590, 597-99 (8th Cir. 2002). In Green, the plaintiff brought a class action against Ameritrade, a provider of online securities price information and stock brokerage services. The amended complaint alleged that Ameritrade breached its contracts with subscribers who used the company "to obtain last sales information or real time market quotes for stocks or options via the internet." Id. at 796. Because the amended complaint alleged "nothing other than a claim for breach of express agreements by Ameritrade," the plaintiffs claim required no proof as to whether Ameritrade misrepresented or committed fraud about its intent to satisfy its contracts and SLUSA was not applicable. Id. at 799 (citing Burns v. Prudential Secs., 116 F. Supp.2d 917 (N.D.Ohio 2000)).

Here, it would be inappropriate to transform MDCM's contract claims into fraud claims because New York law would require dismissal of such claims. "Under New York law, a fraud claim is precluded where it relates to a breach of contract." Trepel v. Abdoulaye, 185 F. Supp.2d 308, 310 (S.D.N.Y. 2002) (applying New York law). "[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated." Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987) (emphasis added). "This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract." Id.

Most courts that have considered the issue have held that, under New York law, a contract claim cannot be converted into a fraud claim merely by adding "`an allegation that the promisor intended not to perform when he made the promise.'" Shred-It, USA, Inc. v. Mobile Data Shred, Inc., 202 F. Supp.2d 228, 237 (S.D.N.Y. 2002) (quoting Papa's-June Music, Inc. v. McLean, 921 F. Supp. 1154, 1160 (S.D.N.Y. 1996)). Rather, to sustain a fraud claim arising out of a contractual relationship a plaintiff must:

(i) demonstrate a legal duty separate from the duty to perform under the contract;

(ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or

(iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages.

Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir. 1996) (citations omitted). See also Papa's-June Music, Inc., 921 F. Supp. at 1160-61 (collecting cases). These elements have not been alleged by MDCM, and neither this Court nor the defendant have the right to redraft the complaint to include new claims.*fn15 See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) (Holmes, J.) ("Of course, the party who brings a suit is master to decide what law he will rely upon. . . ."); see also Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., ___ U.S. ___, 122 S.Ct. 1889, 1894, 153 L.Ed.2d 13 (2002) (same). Accordingly, SLUSA does not preempt plaintiffs' contract-related claims against Credit Suisse.


A. MDCM Has Standing to Bring this Class Action

Credit Suisse's second argument in support of its motion to dismiss is that MDCM lacks standing because:

[e]ach of MDCM's legal claims is founded on the same core theory of injury — namely that [Credit Suisse] deliberately and secretly "underpriced" stock in the "hot" IPOs of unwitting putative class members, thereby depriving them of "millions of dollars" in IPO proceeds. But, MDCM cannot claim to have suffered this injury because the IPO was indisputably neither hot nor underpriced.

Def. Mem. at 11. Credit Suisse then proffers "judicially noticeable facts" to support its claim that was not a "hot" stock.*fn16 See id.

Even if this argument has merit, it cannot be considered on a motion to dismiss because it contests the facts alleged by MDCM in its Amended Complaint. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (alteration in original) (emphasis added).

It is undisputed that Credit Suisse entered into underwriting agreements with, now known as MDCM, and other internet-related and high technology companies that issued stock in the late 1990s. In its Amended Complaint, MDCM has alleged that Credit Suisse violated those agreements. This allegation, regardless of its validity, gives MDCM standing because "[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (emphasis added). See also Connecticut v. Physicians Health Servs. of Connecticut, Inc., 287 F.3d 110, 114 (2d Cir. 2002) (same).*fn17

B. MDCM Has Alleged Viable Claims of Breach of Contract, Breach of Good Faith, and Breach of Fiduciary Duty

Credit Suisse's third argument is that "[n]owhere does MDCM identify any express term of the Underwriting Agreement that has been breached. For this fundamental reason, MDCM's claims for breach of contract and breach of the implied covenant of good faith and fair dealing must be dismissed."*fn18 Def. Mem. at 14. This argument fails because all that is required at this stage of the proceedings is "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). As the Supreme Court recently emphasized: "Such a statement must simply `give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Swierkiewicz, 122 S.Ct. at 998 (quoting Conley v. Gibson, 355 U.S. at 47, 78 S.Ct. 99). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.

"The essential elements to pleading a breach of contract under New York law are the making of an agreement, performance by the plaintiff, breach by the defendant, and damages suffered by the plaintiff." Startech, Inc. v. VSA Arts, 126 F. Supp.2d 234, 236 (S.D.N.Y. 2000). See also Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994). In this case, MDCM has alleged the following elements of a breach of contract claim:

(1) Credit Suisse entered into a contract to underwrite MDCM's IPO, see Am. Compl. ¶¶ 36-38, 46-48;

(2) MDCM complied with the contract, see id. ¶ 42;

(3) Credit Suisse breached that contract by, for example, failing to sell the stock to the public as set forth in the Prospectus and failing to sell it at the agreed upon price, see id. ¶¶ 38-39;

(4) MDCM was damaged by those breaches, see id. ¶¶ 41, 44, 49-50.

These allegations, along with the numerous other factual allegations contained in the Complaint, give Credit Suisse fair notice of the claims that are brought against it. See Conley, 355 U.S. at 47, 78 S.Ct. 99. A review of the Amended Complaint shows that the same is true of MDCM's claims that Credit Suisse breached implicit covenants of good faith and fair dealing and breached certain fiduciary duties. Nothing more is required of MDCM at the pleading stage. See Swierkiewicz, 122 S.Ct. at 998; see also Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (Posner, J.) ("All that's required to state a claim in a complaint filed in a federal court is a short statement, in plain (that is, ordinary, non-legalistic) English, of the legal claim.")

C. MDCM Has Properly Alleged a Claim of Unjust Enrichment

Credit Suisse's fourth argument is that "[b]ecause the [underwriting] [a]greement directly controls the consideration that was to receive from CSFB for its shares, MDCM cannot now recover what it believes to be the real worth of its shares through a claim for unjust enrichment."*fn19 Def. Mem. at 21. It is true that "unjust enrichment is a quasi-contractual remedy imposed only in the absence of an express contract and is not available `when a valid and enforceable written contract governing the same subject matter exists.'" Id. (quoting Granite Partners, L.P. v. Bear Stearns & Co., 17 F. Supp.2d 275, 311 (S.D.N.Y. 1998)). Nevertheless, MDCM's claim of unjust enrichment survives at the pleading stage because a party may plead in the alternative.

"Under Rule 8(e)(2) of the Federal Rules of Civil Procedure, a plaintiff may plead two or more statements of a claim, even within the same count, regardless of consistency." Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d Cir. 1994). Whether the contracts at issue, in fact, cover the subject matters in controversy has not been determined. If "[this] Court ultimately finds that the subject matter of the contract includes CSFB's distribution of MDCM's shares to the public, then MDCM concedes [that its unjust enrichment claim] should be dismissed." MDCM Holdings Inc.'s Memorandum of Law In Opposition to Credit Suisse's Motion to Dismiss at 31. But should this Court find otherwise, and therefore dismiss MDCM's three contract claims, MDCM will be allowed to proceed on its unjust enrichment claim. Either way, it is not appropriate to dismiss the unjust enrichment claim at this time.

D. The Martin Act Does Not Preempt MDCM's Claim of Breach of Fiduciary Duty

Credit Suisse's final argument is that MDCM's claim of breach of fiduciary duties falls within the scope of the Martin Act, New York's securities statute.*fn20 See N.Y. Gen. Bus. Law §§ 352 to 359-h. This claim is without merit because the Amended Complaint does not allege violations of any securities law — state or federal. This lawsuit involves a contract dispute, not a securities action. See supra Part IV.B. "[T]here is nothing in . . . the New York Court of Appeals cases [cited by the defendants] or in the text of the Martin Act itself to indicate an intention to abrogate common law causes of action." Cromer Finance Ltd. v. Berger, No. 00 Civ. 2498, 2001 WL 1112548, at *4 (S.D.N.Y. Sept. 19, 2001).


For the reasons given above, Credit Suisse's motion to dismiss is denied.*fn21 A conference is scheduled for July 2, 2002, at 3:30 p.m.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.