The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
This document relates to: 04 MD 1653 (LAK)
This is a purported class action on behalf of purchasers of securities of the international dairy conglomerate Parmalat Finanziaria S.p.A. and its subsidiaries and affiliates (collectively "Parmalat"). The Court assumes familiarity with its prior opinions.*fn1 The case is before the Court on a motion for summary judgment dismissing the Section 10(b)*fn2 and Rule 10b-5*fn3 claims against defendants Bank of America Corporation, Bank of America, N.A., and Banc of America Securities Limited (collectively "BoA"), Citigroup Inc., Citibank, N.A., and Eureka Securitisation plc (collectively "Citi"), and Pavia e Ansaldo ("Pavia") in the Third Amended Consolidated Class Action Complaint.
In a previous decision, In re Parmalat Sec. Litig., 376 F. Supp.2d 472 (S.D.N.Y. 2005), this Court upheld on a motion to dismiss the first amended complaint the legal sufficiency of some, but not all, of plaintiffs' Section 10(b) claims against Citi and a number of other banks. It held that plaintiffs could have prevailed against those defendants under Rule 10b-5(a) and 10b-5(c) with respect to some (but not all) of the challenged transactions, assuming that they proved their allegations notwithstanding their lack of any actionable misrepresentations or omissions by them. The moving defendants now seek summary judgment of dismissal on the ground that Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 128 S.Ct. 761 (2008), forecloses this theory of liability.
In Stoneridge, the Supreme Court held that "[r]eliance by the plaintiff upon the defendant's deceptive acts is an essential element of the §10(b) private cause of action." 128 S.Ct. at 769 (emphasis added). Although it recognized that reliance may be presumed where (1) a party omits a material fact in breach of a duty to disclose or (2) a party's deceptive acts are communicated to the public, the Court, in holding that neither presumption applied, rejected the proposition "that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect." Id. at 769-70. It then determined that where "[n]o member of the investing public had knowledge, either actual or presumed," of a defendant's "own deceptive conduct," a plaintiff could not "show reliance . . . except in an indirect chain . . . too remote for liability." Id. Plaintiffs argue that Stoneridge does not preclude a finding of Section 10(b) liability here because they can establish reliance with respect to all three movants.
Plaintiffs contend first that reliance should be presumed with respect to both BoA and Pavia because each breached a duty of disclosure. They claim that BoA, as a placement agent, breached a duty to disclose "the true facts about the BoA Brazilian transaction" to investors who purchased securities from BoA in private placements. Pls. Mem. at 9-10. And they contend that Pavia breached a duty, allegedly imposed by Rule 4.1 of the Model Rules of Professional Conduct, to disclose Parmalat's allegedly fraudulent conduct with respect to its divestiture of certain brands and trademarks pursuant to an order from the Italian antitrust authority. Id. at 16. Plaintiffs' arguments, however, are unpersuasive.
The fundamental problem with plaintiffs' argument with respect to BoA is flows from the fact that the duty of disclosure that BoA allegedly breached was a duty owed only to purchasers from BoA in private placements. While plaintiffs maintain that some members of the alleged class bought from BoA in private placements, they concede that none of the named plaintiffs themselves did so. See BoA Rule 56.1 Statement ¶ 164. This is fatal to plaintiffs' argument. Although reliance is presumed where a defendant seller breaches a duty of disclosure, only investors to whom the duty was owed may avail themselves of that presumption. See Stoneridge, 128 S.Ct. at 769 ("[I]f there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance.") (emphasis added). Thus, reliance is not presumed merely because named plaintiffs in a purported class action allege that a duty was owed to other members of the proposed class. Accord In re Initial Pub. Offering Sec. Litig., 341 F. Supp.2d 328, 343-44 (S.D.N.Y. 2004).
Plaintiffs' only argument with respect to Pavia is that Pavia breached a duty to disclose by violating Rule 4.1 of the Model Rules of Professional Conduct. Pls. Mem. at 16. But even assuming arguendo the applicability of the Model Rules*fn4 and that Pavia violated Rule 4.1, it would not follow that Pavia breached a legal duty to the plaintiffs. See MODEL RULES OF PROF'L CONDUCT, Preamble and Scope ("Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . The Rules . . . are not designed to be a basis for civil liability.").
Plaintiffs next attempt to show reliance by arguing that the public was made aware of the allegedly deceptive transactions in which each defendant was involved. Specifically, they contend that Parmalat (1) issued press releases, bond prospectuses, and offering memoranda in which it discussed the Brazilian transaction*fn5 and named BoA as the leader of "a Group of North American investors" involved in the deal, see Pls. Mem. at 7, (2) discussed in its financial statements, bond prospectuses, and private placement memoranda its securitization operations, which were transactions that to some extent involved Citi, see id. at 11-13, and (3) discussed in bond prospectuses and press releases an allegedly fraudulent transaction -- the Nulait transaction*fn6 -- that was structured and implemented by Pavia in response to an order from the Italian antitrust authority. See id. at 14-15. Plaintiffs attempt to distinguish Stoneridge on the ground that these disclosures led investors to rely on the deceptive transactions themselves, not merely on financial statements that were impacted by those transactions. This argument too is unconvincing.
Stoneridge made plain that investors must show reliance upon a defendant's own deceptive conduct before that defendant, otherwise a secondary actor, may be found primarily liable. Plaintiffs' evidence falls well short of this standard. Nothing about Parmalat's disclosures describes any defendant's own conduct, much less conduct that was deceptive. Indeed, the only defendant even named in any of Parmalat's public statements -- BoA -- was involved in a transaction that was not in itself deceptive. See In re Parmalat Sec. Litig., 414 F. Supp.2d at 433-34. In consequence, even assuming the truth of plaintiffs' factual allegations and granting every reasonable inference therefrom, plaintiffs' evidence would establish only that investors relied on Parmalat's deceptive disclosures concerning transactions to which defendants were parties. It would not establish reliance on any defendant's own deceptive conduct except "in an indirect chain" the type of which the Supreme Court found "too remote for liability." Stoneridge, 128 S.Ct. at 769.*fn7
As plaintiffs have failed to establish the reliance element of their Section 10(b) claims against BoA, Citi, and Pavia, the Court need not address defendants' additional grounds for summary judgment. Moreover, plaintiffs' Section 20(a)*fn8 claims with respect to BoA, Citigroup Inc., and Citibank, N.A.,*fn9 which are predicated upon primary violations of Section 10(b), fail as a matter of law because they have not made out a prima facie case of any such violations by any of those defendants. See In re Pfizer, Inc. Sec. Litig., 538 F. Supp. 2d 621, 637 (S.D.N.Y. 2008) ("Section 20(a) claims are necessarily predicated on a primary violation of securities law . . . ."), citing Rombach v. Chang, 355 F.3d 164, 177-78 (2d Cir. 2004).*fn10
For the foregoing reasons, Bank of America Corporation, Bank of America, N.A., Banc of America Securities Limited, Citigroup Inc., Citibank, N.A., Eureka Securitisation plc, and Pavia e Ansaldo's motion for summary judgment dismissing the Third Amended Class Action Complaint as against them [04 MD 1653, docket item 1579; 04 Civ. 0030, docket item 982] is granted. As this ruling disposes of all claims against these defendants and there is no just reason for delay, the Clerk is directed, pursuant to Fed. R. Civ. P. 54(b), to enter final judgment with respect to these defendants.