The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
I. Impact of Morrison v. National Australia Bank on Plaintiffs' Claims
C. Plaintiffs' Motion to Conform the Pleadings
II. Vivendi's Motion for Judgment as a Matter of Law Pursuant to Rule
B. Material Misstatements and Omissions
1. Statements Not Specifically Attributable to Messier or Hannezo
2. Impact of the Messier and Hannezo Verdicts
3. Whether Vivendi is Entitled to a New Trial Based on the Alleged Inconsistency in the Verdict
(a) Vivendi Waived Its Right to Object to the Verdict on Inconsistency Grounds
(b) The Verdict is Not Inconsistent
(a) Connection between the Fraud and the Events
(b) Connection between the Events and Share Price Declines
(c) Whether the Misstatements Caused Inflation
5. Effect of Jury's Finding of Zero Inflation on Certain Dates during the Class Period
6. Forward-Looking Statements
(a) The Challeged Statements Do Not Fall Within the PSLRA'S "Safe Harbor"
III. Vivendi's Motion for a New Trial Pursuant to Rule
C. Alleged Failure to Identify Misstatements until the Close of Evidence
IV. Class Plaintiffs' Motion for Entry of Final Judgment
This is a securities fraud class action brought on behalf of shareholders of a French company, Vivendi Universal, S.A. ("Vivendi") against Vivendi and its former Chief Executive Officer, Jean-Marie Messier and its former Chief Financial Officer, Guillaume Hannezo (collectively, "defendants"). The action was tried before a jury from October 2009 to January 2010. At the close of plaintiffs' case, all three defendants moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The Court reserved decision on most aspects of defendants' Rule 50(a) motions and the case was submitted to the jury.*fn1 On January 29, 2010, the jury returned its verdict. The jury found that Vivendi had violated Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and the Securities and Exchange Commission's Rule 10b-5 (collectively, "Section 10(b)"), but that neither Messier nor Hannezo had committed a primary or secondary violation of Section 10(b) or Section 20(a) of that Act. No judgment has yet been entered on the verdict.
Vivendi now renews its motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), or, in the alternative, moves for a new trial pursuant to Federal Rule of Civil Procedure 59. Plaintiffs move for the entry of judgment, for an award of pre-judgment interest, and for approval of their proposal for post-verdict class notice and claims administration. This opinion sets forth the Court's ruling on these motions. It also addresses the impact of the Supreme Court's recent decision in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010) on the action and modifies its class certification in light of that decision.
This action was originally brought in 2002 by U.S. and foreign shareholders of Vivendi who alleged that they purchased ordinary shares, or American Depository Receipts that represent those shares (hereinafter, "ADRs"),*fn2 at artificially inflated prices as a result of defendants' material misrepresentations and omissions between October 30, 2000 and August 14, 2002, inclusive (the "Class Period"), in violation of §§ 10(b) and 20(a) of the Exchange Act. 15 U. S. C. §§78j(b) and 78t(a).The ordinary shares in question traded primarily on the Paris Bourse, and did not trade on any U.S exchange. The ADRs were listed and traded on the New York Stock Exchange ("NYSE"). After the initial class action complaint was filed, a large number of related actions were filed and were consolidated by the Court into a single action, and a consolidated class action complaint was filed.
In February 2003, defendants moved to dismiss on various grounds. Of particular relevance here, defendants argued that this Court lacked subject matter jurisdiction over any claims brought by "foreign-cubed" class members-i.e., foreign shareholders who purchased their shares of Vivendi, a foreign company, on foreign exchanges. The Court, in a decision by Judge Baer, rejected that argument. In re Vivendi Universal, S.A. Sec. Litig., 381 F. Supp. 2d 158, 169-70 (S.D.N.Y. 2003) ("Vivendi I"). Judge Baer held that the Court had subject matter jurisdiction over those claims under the "conduct test" which was one of two tests-the conduct and effects tests-long in use in the Second Circuit to determine whether a court could exercise subject matter jurisdiction over foreign securities transactions. Id., see also Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 171 (2d Cir. 2008).*fn3 Under the "conduct test," subject matter jurisdiction existed "if activities in this country were more than merely preparatory to a fraud and culpable acts or omissions occurring here directly caused losses to investors abroad." Morrison, 547 F.3d at 171 (citations omitted). The determination as to whether American activities "directly" caused losses to foreigners was fact-specific, and "depend[ed] on what and how much was done in the United States and on what and how much was done abroad." Id. (citation omitted).
Applying that test, Judge Baer concluded that the Court had subject matter jurisdiction over claims by foreign plaintiffs who purchased Vivendi shares on foreign exchanges, in large part due to the fact that Messrs. Messier and Hannezo had engaged in significant conduct in the United States related to the alleged fraud-in particular, they moved their headquarters to New York and split their time between the U.S. and France during the crucial time period in which investors claimed to have been misled. Vivendi I, 81 F. Supp. 2d at 169-70. Judge Baer's decision on subject matter jurisdiction was affirmed by this Court on reconsideration. In re Vivendi Universal, S.A. Sec. Litig., No. 02 Civ. 5571 (RJH), 2004 WL 2375830, at *3-7 (S.D.N.Y. Oct. 22, 2004) ("Vivendi II"). After defendants' motion to dismiss was denied, and after some discovery had occurred, plaintiffs moved to certify a class consisting of Vivendi shareholders from the United States and various European countries. Defendants raised numerous objections to class certification, including, most prominently, an objection to the inclusion of foreign shareholders in the class. This Court considered the requirements for class certification set forth in Federal Rule of Civil Procedure 23(b)(3) and on May 21, 2007, certified a single class consisting of "all persons from the United States, France, England, and the Netherlands who purchased or otherwise acquired ordinary shares or American Depositary Shares of Vivendi Universal, S.A. between October 30, 2000 and August 14, 2002."*fn4 In re Vivendi Universal, S.A. Sec. Litig., 242 F.R.D. 76, 109 (S.D.N.Y. 2007) ("Vivendi III"). Defendants filed a motion for partial reconsideration of the class certification opinion, which was denied on March 31, 2009. In re Vivendi Universal, S.A. Sec. Litig., No. 02 Civ. 5571 (RJH), 2009 WL 855799 (S.D.N.Y. Mar. 31, 2009) ("Vivendi IV").
Meanwhile, the parties had been conducting fact and expert discovery. In August 2008, defendants filed various motions for full or partial summary judgment on numerous grounds. A principle contention was that plaintiffs allegedly had failed to prove loss causation, a required element of plaintiffs' claims. The Court carefully considered defendants' arguments, including those relating to loss causation, and denied defendants' motion. In re Vivendi Universal S.A. Sec. Litig., 634 F. Supp. 2d 352 (S.D.N.Y. 2009) ("Vivendi V"). Thereafter, Class Plaintiffs' claims were set down for trial in the fall of 2009.
On October 5, 2009, a jury trial began in this Court on Class Plaintiffs' claims that Vivendi, Mr. Messier, and Mr. Hannezo violated Section 10(b), and that Mr. Messier and Mr. Hannezo also violated Section 20(a). During plaintiffs' direct case, the jury saw videotaped deposition testimony from over twenty fact witnesses, including employees and senior executives at Vivendi and its subsidiaries, former members of Vivendi's Board, and employees of the rating agencies whose responsibility it was to cover Vivendi. Four fact witnesses also testified live: Anne Brassens, a former member of Vivendi's finance department who left the company in May 2002; Marie-Jose Kravis, a former member of Vivendi's Board, who served on the Board throughout the Class Period; Hannezo; and Gerard Morel, who was then serving as a class representative.*fn5
Three experts testified for plaintiffs: Andrew Mintzer testified regarding generally accepted accounting principles ("GAAP") in the United States; Xavier Oustalniol testified regarding French GAAP, and Dr. Blaine Nye testified regarding loss causation and damages. Plaintiffs also introduced over five hundred documents into the record as part of their direct case. Plaintiffs rested their case on November 20, 2009.
Defendants then presented their case to the jury. Three fact witnesses testified for defendants: Messier; Hubert Dupont-L'H telain, Vivendi's Treasurer during the Class Period and through the time of the trial; and Pierre Trotot, the Senior Executive Vice President and Chief Financial Officer of Cegetel, a Vivendi affiliate, during the Class Period. Six expert witnesses testified for defendants: Christine Hammer testified regarding Vivendi's cash balances during the Class Period; Andrew Fleming testified regarding Vivendi's liquidity situation during the Class Period; James Parrish testified regarding the work of rating agencies in general and regarding communication flow between Vivendi and various rating agencies; James Milner testified regarding French and U.S. GAAP; Professor Ronald Gilson testified regarding whether the risks alleged by plaintiffs to have been concealed by defendants were known to the market during the Class Period; and Dr. William Silber testified regarding potential damages. Defendants introduced over 250 additional documents into the record and rested on December 17, 2009.
Plaintiffs put on a brief rebuttal case, after which the jury was given a recess for the holiday season while counsel and the Court finalized the jury charges and the verdict form.
In early January 2010 the jury returned to hear extended closing arguments and begin its deliberations. The Court provided the jury with a copy of its instructions to review as needed during deliberations and a Verdict Form to complete. To aid in their deliberations, the jury was provided with a list prepared jointly by all counsel which identified all the documents admitted at trial (the "Exhibit List"). The Exhibit List also identified which defendants each document was admitted against, and stated whether the document was subject to any limiting instructions The seventy-two page Verdict Form identified fifty-seven sets of statements alleged by plaintiffs to have violated Section 10(b), each of which were set forth in Table A. Certain of those statements were alleged to be Section 10(b) violations by Vivendi only, and others were alleged to be Section 10(b) violations by Vivendi and Messier and/or Hannezo.*fn6 The Verdict Form asked the jury to determine whether plaintiffs had proven the elements of their Section 10(b) claim with respect to each of the fifty-seven statements for each defendant against whom that false statement was alleged. For any statement as to which the jury found a Section 10(b) violation, the Verdict Form instructed to jury to determine whether the defendant(s) who had committed the violation had acted knowingly or recklessly. The Verdict Form also instructed the jury that if they found Section 10(b) liability as to any defendant with respect to any (or all) of the fifty-seven statements, they should identify the daily inflation amount (in euros/dollars per share), if any, in the price of Vivendi's ordinary shares and ADRs that they found to have been caused by the Section 10(b) violations. Consistent with 15 U.S.C. § 78u-4(f) of the Private Securities Litigation Reform Act ("PSLRA"), the Verdict Form also asked the jury to determine the percentage of responsibility to assign to each defendant whom the jury found to have violated Section 10(b), to the extent the jury found that any of the defendants had acted recklessly with respect to any of the fifty-seven statements. Lastly, the Verdict Form asked the jury to determine whether Messier and Hannezo had violated Section 20(a) of the Exchange Act.
After fourteen days of deliberations, the jury reached its verdict. The jury found that Vivendi had violated Section 10(b) as to all fifty-seven alleged misstatements, and that it acted recklessly with respect to each statement. The jury found that Messier and Hannezo had not violated Section 10(b) or Section 20(a), thereby absolving Messier and Hannezo of liability. The jury found the daily inflation in the price of Vivendi's ordinary shares and ADRs' to be approximately half of the daily inflation amount that Dr. Nye had calculated on most days in the Class Period. However, the jury found that the inflation in Vivendi's stock prices was zero from September 11, 2001 to September 28, 2001, and also on those days between November 2001 and August 14, 2002 on which Vivendi's ordinary shares traded but Vivendi's ADRs' did not (or vice versa).*fn7 Consistent with their finding that Messier and Hannezo had not violated the securities laws, the jury found Vivendi 100% responsible for plaintiffs' losses. Once the verdict had been read, the jurors were polled in open court, and they each affirmed the verdict
Immediately after the Court had discharged the jury, Vivendi orally renewed its motion for judgment as a matter of law and also moved for a new trial. The Court approved an extended briefing schedule under which briefing on Vivendi's post-trial motions would be completed by mid-June 2010. Thereafter, plaintiffs moved for the entry of judgment, for an award of prejudgment interest, and for approval of their proposed class notice and claims administration procedures.
On June 24, 2010, the Supreme Court issued its opinion in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), holding that Section 10(b) does not apply extraterritorially. In the wake of Morrison, the Court asked Vivendi and Class Plaintiffs to submit supplemental briefs addressing the impact of Morrison on the pending motions, and seeking such other relief as might be appropriate in light of Morrison. The parties submitted simultaneous briefs on this issue on July 16, 2010. Oral argument was held on all pending motions on July 26, 2010.
I.Impact of Morrison v. National Australia Bank on Plaintiffs' Claims
Vivendi and plaintiffs disagree over the impact of the Supreme Court's recent decision in Morrison on this action. Plaintiffs contend that Morrison has no impact on this case because all of Vivendi's ordinary shares are listed on the New York Stock Exchange in connection with its ADR program and, therefore, ordinary share purchasers satisfy Morrison's bright line test that limits Section 10(b) claims to "securities listed on domestic exchanges, and domestic transactions in other securities . . . ." Morrison, 130 S. Ct. at 2884. Vivendi points out that while some ordinary shares were listed on the NYSE they were not listed for trading purposes and served only as backup to the ADRs that were traded domestically. Moreover, actual transactions in Vivendi ordinary shares only took place on foreign exchanges, such as the Bourse, on which the shares were listed for trading. If anything is clear, Vivendi argues, it is that Morrison excludes from Section 10(b) "transactions conducted upon foreign exchanges," id. at 2882 (emphasis deleted), because the Exchange Act was not "intended to 'regulate' foreign securities exchanges," id. at 2884 (emphasis deleted).
Morrison was a case brought by Australian citizens who purchased ordinary shares of an Australian bank, National Australian Bank ("NAB") on foreign exchanges.
NAB's ordinary shares were traded on the Australian stock exchange and other foreign exchanges, but not on any exchange in the United States. 130 S. Ct. at 2875. However, NAB did list ADRs, which represent the right to receive a specific number of NAB ordinary shares, on the New York Stock Exchange. Id.The plaintiffs in Morrison sought to bring claims against NAB in the United States under Section 10(b), alleging that a Florida-based subsidiary of NAB had falsified financial data, which was then forwarded to and disseminated by NAB as part of its public filings.
The defendants moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim under Rule 12(b)(6). The district court granted the motion to dismiss for lack of subject matter jurisdiction, In re National Australia Bank Sec. Litig., No. 03 Civ. 6537 (BSJ), 2006 WL 3844465, at *8 (S.D.N.Y. Oct. 25, 2006), and the Second Circuit affirmed, Morrison, 547 F.3d at 176. The Second Circuit reasoned that under the circuit's "conduct" test for assessing subject matter jurisdiction, the court lacked jurisdiction over the claims in question because the actions taken at NAB in Australia were more central to the fraud than the alleged manipulation of numbers at the Florida subsidiary, there was no allegation that the fraud had any impact on America or Americans, and the chain of causation between the Florida subsidiary's actions and the statements that reached investors was lengthy. Morrison, 547 F.3d at 176-77.
On appeal, the majority of the Supreme Court, in an opinion written by Justice Scalia, framed the question before it as follows: "[W]hether §10(b) of the Securities Exchange Act of 1934 provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges;" that is, whether the "F-cubed" claims could be asserted under the securities laws. Morrison, 130 S. Ct. at 2874. However, the Supreme Court-unlike the Second Circuit-did not consider this to be a question of subject matter jurisdiction. Id. at 2877. Rather, the Supreme Court explained that "to ask what conduct §10(b) reaches is to ask what conduct §10(b) prohibits, which is a merits question." Id.
Turning to that merits question, the majority in Morrison concluded that Section 10(b) does not apply extraterritorially, applying a presumption that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none." Id. at 2878. In so holding, the Supreme Court rejected the Second Circuit's longstanding "conduct and effects" tests, which focused on whether the wrongful conduct had a substantial effect on United States markets or citizens or occurred in the United States. Id. at 2881; Cornwell v. Credit Suisse Group, 729 F. Supp. 2d 620, 622 (S.D.N.Y. 2010)("In Morrison, the Supreme Court roundly (and derisively) buried the venerable 'conduct or effect' test the Second Circuit devised and for years had employed to determine whether the protections and remedies contained in § 10(b) of the Exchange Act apply extraterritorially to reach fraudulent securities transactions abroad . . . .") The majority found that the "conduct and effects" tests lacked any textual basis, were "not easy to administer," and yielded inconsistent and unpredictable results. Id. at 2879-80.
Having roundly rejected the "conduct and effects" tests, and having concluded that Section 10(b) does not apply extraterritorially, the Supreme Court went on to consider whether to dismiss the claims of the plaintiffs before it. Many essentially foreign transactions have some domestic aspect so the issue remained where to draw the line in particular cases. Id. 2884. The plaintiffs in Morrison argued that they were seeking only domestic application of Section 10(b) because Florida was where NAB's subsidiary had engaged in the challenged financial manipulation. But the Supreme Court rejected plaintiffs' suggestion that the deceptive conduct in Florida brought plaintiffs' claims within the ambit of Section 10(b). Id. at 2883-84. In reaching that conclusion, the Supreme Court did not confine its discussion to the particular fact pattern before it. See id. at 2884-88. Instead, it "went out of its way to fashion a new rule designed to correct the enumerated flaws the Court found in the Second Circuit's tests" and made clear that it sought to replace the Second Circuit's unpredictable jurisprudence with a new, bright-line rule that would yield consistent, certain results. Cornwell, 729 F. Supp. 2d at 625.
That new rule is as follows: "[I]t is in our view only transactions in securities listed on domestic exchanges, and domestic transactions in other securities, to which §10(b) applies." Morrison, 130 S. Ct. at 2884. Justice Scalia repeated that rule using different, but presumably equivalent language, at the end of his majority opinion: "Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States." Id. at 2888. The Court reasoned that in addition to bringing clarity and certainty to the securities law field, the rule it was announcing would avoid conflicts with foreign securities laws. "The transactional test we have adopted-whether the purchase or sale is made in the United States, or involves a security listed on a domestic exchange," the Supreme Court explained would avoid "the problem of interference with foreign laws that application of §10(b) abroad would produce." Id. at 2886.Applying its newly enunciated rule to the facts before it, the Supreme Court held that plaintiffs failed to state a claim upon which relief could be granted under Section 10(b) because the purchase or sale of NAB ordinary shares in Australia "involve[d] no securities listed on a domestic exchange, and all aspects of the purchases complained of by those petitioners who still have live claims occurred outside the United States."*fn8 Id. at 2888. It should be noted that the Court was never presented with and did not consider the arguments plaintiffs make here, that the listing of NAB's ADRs on the NYSE required the simultaneous listing of its ordinary shares (albeit not for trading purposes) and, therefore, that NAB's ordinary shares actually met the test enunciated.
Though the Supreme Court purported to lay out a bright-line rule regarding the extraterritorial application of Section 10(b), Morrison's impact on this case is far from clear. The parties agree that Morrison has no impact on the claims of ADR purchasers since Vivendi's ADRs were listed and traded on the NYSE. However, the parties disagree over Morrison's impact on the claims of foreign and American purchasers of ordinary shares, transactions that necessarily took place on foreign exchanges.
As noted, plaintiffs contend that Vivendi's ordinary shares were, in fact, "listed on a domestic exchange," such that Section 10(b) claims by ordinary share purchasers (whether foreign of American) meet the second prong of the Morrison test. Plaintiffs' line of argument in this regard is straightforward yet complex. It begins with the undisputed fact that Vivendi listed and sold ADRs on the NYSE. Vivendi's ADRs were sold in the United States as part of a U.S. public offering in 2000, making them "level 3" ADRs-indicating the highest level of issuer involvement.*fn9 Because Vivendi chose to sell its ADRs in the U.S. through a public offering, Vivendi was required to register under the '33 Act a corresponding number of its ordinary shares with the SEC. SeeSEC Release, 1991 SEC LEXIS 936, at *35 ("[W]hen there is a public offering of securities in ADR form, both the ADRs and the deposited securities must be registered."); id. at n.47 ("ADRs are registered on Form F-6 and the deposited securities are usually registered on Form F-1, F-2, F-3 or F-4."). Consistent with those requirements, Vivendi deposited the ordinary shares underlying its ADR offering with a French bank, registered those shares with the SEC on Form F-4, and also listed them on the NYSE-albeit not for trading purposes.*fn10 Relying on 17 C.F.R. § 240.12d1-1(a), plaintiffs then argue that the registration of the ordinary shares underlying Vivendi's ADR issuance caused the entire class of Vivendi's ordinary shares (including those ordinary shares that did not underlie any ADRs') to be registered with the SEC.*fn11 Vivendi also was required to register its ordinary shares pursuant to Section 12(b) of the Exchange Act and did so.*fn12
Consequently, plaintiffs' contend, all of Vivendi's ordinary shares were registered or listed-plaintiffs claim the terms are interchangeable-on a U.S. exchange.*fn13 Thus, plaintiffs contend, all purchasers of ordinary shares (whether foreign or American) can bring Section 10(b) claims under the test announced in Morrison even though their shares were traded aboard not in the U.S. Simply put, Justice Scalia stated that Section 10(b) applies to "securities listed on domestic exchanges" and, plaintiffs contend, Vivendi's ordinary shares meet that test. P.Supp.Br. at 10; Morrison,130 S. Ct. at 2884, 2888. This argument is not unmoored from all policy considerations. When a foreign issuer decides to access U.S. capital markets by listing and trading ADRs, it subjects itself to SEC reporting requirements, and it would not be illogical to subject that company to the antifraud provisions of the Exchange Act at least where there is a sufficient nexus to the United States. Indeed, that premise underlies both the conduct and effects tests and the Morrison bright line test. Although these standards diverge on the issue of extraterritoriality, as Justice Scalia noted, transnational transactions have both domestic and foreign aspects and the issue becomes one of line-drawing under either test.
That being said, there appears to be a technical flaw in plaintiffs' argument. It is true that the registration of any shares under Section 12 of the Exchange Act extends registration to the entire class of securities. And when a foreign company registers ADRs with the SEC, it must also register the underlying ordinary shares, necessarily resulting in the registration with the SEC of all ordinary shares. But registration with the SEC is not the same as listing (registering) on an exchange. The sample NYSE listing application provided to the Court at argument indicates that only a discrete number of ordinary shares are listed; this being the number of ordinary shares needed to back-up the ADRs being listed. Thus while all ordinary shares of a foreign issuer are deemed to be registered with the SEC, a lesser fixed amount of shares are actually listed with the Exchange. And ordinary shares that are not listed on an exchange (for any purpose) would fall outside plaintiffs' literalist reading of the Morrison bright-line test as well as the underlying language of Section 10(b).
While the record is sketchy, it appears that Vivendi separately registered with the SEC approximately 500 million ADRs and a roughly equivalent number of ordinary shares in connection with the three-way merger of Vivendi, Seagram and Canal Plus in November, 2000. (Margolis Decl. in Supp. of Pls.' Suppl. Br., Exs. 6, 7.) Seagram shareholders had the right to receive approximately 400 million Vivendi ADRs in exchange for their Seagram stock. (Id.) Vivendi's listing application with the NYSE is not before the Court, but it would likely have listed the 500 million ADRs that had just been registered (with the SEC), as well as the ordinary shares registered (with the SEC) to back up the newly-issued ADRs.*fn14
At this point, the fact that approximately 500 million ordinary shares of Vivendi were listed on the NYSE (not for trading purposes) would not appear to affect the analysis since an equal number of ADRs represented those ordinary shares. The ADRs were both listed and traded on the NYSE, and thereby fall within any reading of Morrison. This would render moot the issue of whether the simultaneous listing of the underlying ordinary shares (not for trading purposes) would itself meet the Morrison test. But there appears to be a wrinkle. According to Vivendi's Form 20-F filed on July 2, 2001, there were only 122 million outstanding ADRs as of December 31, 2000. This appears to reflect a significant migration of the ADRs issued in the November 2000 merger back to European markets. Unless Vivendi amended its listing agreement with the NYSE, up to 378 million ordinary shares would still be listed with the NYSE despite the fact that many ADRs appear to have been exchanged by the Depository for ordinary shares and, therefore, are no longer outstanding.
Assuming, arguendo, that there were ordinary shares of Vivendi that remained "listed" but were un-tethered to any ADRs, would a purchase of such shares by a foreign purchaser trading on a foreign exchange satisfy the Morrison test, as plaintiffs claim?*fn15
That is, do "foreign cubed" transactions actually survive Morrison where ordinary shares are listed but not traded on a domestic exchange as a result of a foreign issuer's ADR program. All the courts who have directly or indirectly addressed this issue have dismissed the argument as a technical one that is contrary to the "spirit" of Morrison. In re Royal Bank of Scotland Group PLC Securities Litigation, No. 09 Civ. 300(DAB), 2011 WL 167749, at *7 (Jan. 11, 2011); In re Alstom SA Securities Litigation, No. 03 Civ. 6595 (VM), 2010 WL 3718863, at *2-3 (S.D.N.Y. Sept. 14, 2010); Sqalambo v. McKenzie, No. 09 Civ. 10087 (SAS), 2010 WL 3119349, at *17 (S.D.N.Y. Aug. 6, 2010). These decisions focus, as is appropriate, on the Morrison opinion as a whole, which can be read as adopting a test that turns on the territorial location of the subject transaction. E.g., In re Royal Bank, 2011 WL 16779, at *8.This focus is consonant with the express view of the Supreme Court, which "reject[ed] the notion that the Exchange Act reaches conduct in this country affecting exchanges or transactions abroad . . . ." Morrison,130 S. Ct. at 2885. As the Court observed "no one . . . thought that the Act was intended to 'regulate' foreign securities exchanges," id. at 2884, and furthermore, there is no "national public interest" in "transactions conducted upon foreign exchanges and markets," id. at 2882.
Read in this context, perhaps Justice Scalia simply made a mistake. He stated the test as being whether the alleged fraud concerned the purchase or sale of a security "listed on an American stock exchange," id. at 2888, when he really meant to say a security "listed and traded" on a domestic exchange. Perhaps so, but then there is the question of the actual language of the statute, as well as Justice Scalia's interpretation thereof in footnote 10 of Morrison.
By its terms, Section 10(b) applies to the "purchase or sale of any security registered [listed] on a national securities exchange or any security not so registered [listed]." Justice Scalia points out in footnote 10 that the second phrase regarding unregistered securities is exclusively focused on domestic transactions in securities (as opposed, one presumes, to both domestic and foreign). This is so, Justice Scalia explains, because if the phrase referred to "all" purchases and sales of unregistered securities (domestic and foreign, presumably), the phrase would have been at best surplusage:
[T]he only alternative to that reading [that only domestic transactions in unregistered securities are proscribed] makes nonsense of the phrase, causing it to cover all purchases and sales of registered securities, and all purchases and sales of nonregistered securities-a thought which, if intended, would surely have been expressed by the simpler phrase "all purchases and sales of securities."
Id. at 2885 n.10. If this is so, the first phrase referring to the "purchase or sale of any security registered on a national securities exchange" logically refers to both domestic and foreign transactions in registered securities, (that is, all purchases and sales of registered securities as opposed to only domestic purchases and sales of unregistered securities).
Morrison's footnote 10 gives this Court pause, but ultimately the Court concludes that it cannot carry the freight that plaintiffs ask it to bear. There is no indication that the Morrison majority read Section 10(b) as applying to securities that may be cross-listed on domestic and foreign exchanges, but where the purchase and sale does not arise from the domestic listing, particularly where (as here) the domestic listing is not even for trading purposes.*fn16 Indeed, even under the old conduct and effect tests similar cross-listing scenarios would not by themselves support a Section 10(b) claim. It is unlikely that the Morrison court in any way intended to broaden Section 10(b)'s reach when it replaced the conduct and effects tests with its new transactional standard. This is not to say that this Court's reading of Morrison is free from doubt, or that Morrison's reading of Section 10(b) is free of potential inconsistency, only that resolution of these issues is fairly the province of the Supreme Court or Congress.
The next issue is whether Morrison also requires the Court to dismiss the claims of American purchasers of Vivendi's ordinary shares. A threshold question is whether Vivendi's request that the Court dismiss the claims of American ordinary shareholders is timely.*fn17 Plaintiffs contend that Vivendi waived any right to challenge the claims of American purchasers of ordinary shares by failing to argue at an earlier stage of this litigation that the Court lacked subject matter jurisdiction over these claims. Plaintiffs are correct that Vivendi never previously challenged the claims of American, as opposed to foreign, ordinary share purchasers for lack of subject matter jurisdiction. However, one reason for that failure was that until the Supreme Court's recent decision in Morrison, it was well-settled under Second Circuit precedent that American purchasers of a foreign company's shares could bring Section 10(b) claims. Indeed, Morrison repudiated the Second Circuit's longstanding jurisprudence to a degree "that would surprise . . . generations of American investors-and . . . the Congress that passed the Exchange Act." Id. 130 S. Ct. at 2895 (Stevens' concurrence.)
In this context, Vivendi did not waive its right to seek dismissal of the claims of American purchasers of ordinary shares for failure to state a claim under Rule 12(h)(2), a defense that arose from intervening Supreme Court authority. See Holzager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981) ("In any event a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made, especially when it does raise the objections as soon as their cognizability is made apparent.") (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 143, 145 (1967)). The Circuits have recognized that "[a]n exception to normal law of the case and waiver rules is recognized when an intervening decision from a superior court changes the controlling law." Beazer E. v. Mead Corp., 525 F.3d 255, 263 (3d Cir. 2008). In such contexts, the Circuits will allow parties, for example, to raise arguments that they did not raise in their opening briefs. E.g., West v. Ortiz, 2007 WL 706924, at *5 (10th Cir. Mar. 9, 2007) (allowing an appellant to raise an issue made viable by intervening Supreme Court case law for the first time on reply); DSC Commc'ns Corp. v. Next Level Commc'ns, 107 F.3d 322, 326 n. 2 (5th Cir.1997) (party that waived an issue by failing to include it in its opening brief could raise the issue in a supplemental brief based on an intervening change of law). It would be curious indeed if Vivendi would be allowed to raise an argument on appeal that it could not assert before this Court. While the language of Rule 12(h)(2) provides that a failure to state a claim defense may be raised "in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c) [for judgment on the pleadings]; or (C) at trial," and does not expressly contemplate motions made after trial but before entry of judgment, the Court concludes that under the circumstances here-in which judgment has yet to be entered and will not be entered for quite some time since the damages phase of this case has yet to occur-it is appropriate to permit Vivendi to bring a motion pursuant to Rule 12(h)(2).*fn18
Turning to the substance of the issue, the Court finds that American ordinary share purchasers cannot bring Section 10(b) in the wake of Morrison. In reaching this conclusion, the Court joins other lower courts that have rejected the argument that a transaction qualifies as a "domestic transaction" under Morrison whenever the purchaser or seller resides in the United States, even if the transaction itself takes place entirely over a foreign exchange. See Cornwell, 729 F. Supp. 2d at 627; Harry Stackhouse v. Toyota Motor Co., et al.,No. 10 Civ. 0922 (DSF), 2010 WL 3377409, at *1 (C.D. Cal. July 16, 2010; In re Royal Bank, 2011 WL 167749, *7-8.
Though the Supreme Court in Morrison did not explicitly define the phrase "domestic transactions," there can be little doubt that the phrase was intended to be a reference to the location of the transaction, not to the location of the purchaser and that the Supreme Court clearly sought to bar claims based on purchases and sales of foreign securities on foreign exchanges, even though the purchasers were American.
As Judge Marrero has pointed out, reading Morrision to permit Section 10(b) claims "based strictly on the American connection of the purchaser or seller . . . simply amounts to a restoration of the core element of the effects test." Cornwall, 729 F. Supp. 2d at 624. The Morrison Court made clear that it did not believe that the American citizenship of the plaintiff was itself sufficient to give rise to Section 10(b) claims when it analogized the citizenship of securities purchasers to the American plaintiff in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) (hereinafter "Aramco"), who sought to assert discrimination claims arising out of his employment abroad:
[T]he presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case. The concurrence seems to imagine just such a timid sentinel, but our cases are to the contrary. In Aramco, for example, the Title VII plaintiff had been hired in Houston, and was an American citizen. The Court concluded, however, that neither that territorial event nor that relationship was the 'focus' of congressional concern, but rather domestic employment.
Applying the same model of analysis here, we think that the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States.
Morrison, 130 S. Ct. at 2884 (citing Aramco, 499 U.S. at 255). Just as the plaintiff in Aramco's American citizenship was not enough to render his employment "domestic employment" subject to Title VII, the American citizenship of a person who purchase a foreign company's shares on a foreign exchange does not render that a "domestic transaction."
Finally, it simply blinks reality to ignore Justice Stevens' concurring opinion in Morrison which underscored the stark impact of the majority's opinion on American investors who purchased shares abroad and fell victim to securities fraud:
Imagine, for example, an American investor who buys shares in a company listed only on an overseas exchange. That company has a major American subsidiary with executives based in New York City; and it was in New York City that the executives masterminded and implemented a massive deception which artificially inflated the stock price-and which will, upon disclosure, cause the price to plummet. Or imagine that those same executives go knocking on doors in Manhattan and convince an unsophisticated retiree, on the basis of material misrepresentations, to invest her life ...