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In re Stillwater Capital Partners Inc. Litigation


March 5, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.


Master File No. 1:11-2275 (SAS)


This consolidated putative class action, which concerns only state law claims, is part of a larger multi-district litigation.*fn1 It arises out of plaintiffs' investments in the various Stillwater Funds*fn2 and Stillwater's*fn3 merger agreement with Gerova Financial Group, Ltd. ("Gerova"). Plaintiffs' amended complaint alleges, inter alia, breach of fiduciary duty; aiding and abetting breach of fiduciary duty; and breach of contract claims against SCP, Gerova, Net Five Holdings, LLC ("Net Five"), and various officers and directors of those companies. Defendants now move to dismiss all state law claims.Defendants advance three primary arguments in their motions to dismiss:*fn4 first, that the breach of fiduciary duty claims are derivative and therefore plaintiffs lack standing to bring them directly; second, that the claims are precluded by the Securities Litigation Uniform Standards Act ("SLUSA"); and third, that a corporation does not owe a fiduciary duty to its shareholders. For the following reasons the motions of SCP, Gerova, and the individual SCP and Gerova defendants are granted in part and denied in part, and the claim against Net Five is dismissed.


A. Plaintiffs

The proposed class consists of those SCP investors who received restricted, unregistered Gerova shares as part of the SCP/Gerova merger*fn6 and SCP investors who sought redemption of their SCP funds, but were not paid in full prior to the SCP/Gerova merger.*fn7

B. Defendants

There are ten named defendants in this action. SCP, Inc., is a New York corporation that acts as investment manager for the Stillwater Funds,*fn8 and

SCP, LLC, is a Delaware limited liability company that manages the business affairs of the Stillwater Funds.*fn9 Jack Doueck is a principal of SCP and sits on an investment committee that manages the Stillwater Funds under Gerova's control.*fn10

He became a director of Gerova as part of the merger with SCP.*fn11 Richard Rudy is a principal of SCP and sits on the investment committee with Doueck.*fn12 Plaintiffs allege the same six breach of fiduciary duty claims against each of these defendants: (1) imprudently investing assets and failing to properly value them; (2) failing to sell assets in a timely manner; (3) failing to pay redemptions; (4) failing to perform due diligence on Gerova prior to the merger; (5) entering into the Gerova agreement whereby SCP directors received a lucrative contract at plaintiffs' expense; and (6) failing to submit audits to Gerova so the shares could be registered (Counts I-VI).*fn13

Gerova, was a "blank check company" formerly known as Asia Special Situation Acquisition Corporation, which formed in March 2007.*fn14 The name was officially changed to Gerova in connection with its merger with SCP in 2009.*fn15 Gerova's principal offices are in Hamilton, Bermuda.*fn16 Gary Hirst was a founding director of Gerova and was appointed its president in October 2007; he resigned on February 10, 2011.*fn17 Michael Hlavsa has served as Chief Financial Officer ("CFO") and a director of Gerova since March 2007.*fn18 Keith Laslop was a Gerova director from May 2008 until his resignation on February 10, 2011. He also served as Gerova's Chief Operating Officer ("COO") during part of that time.*fn19 Joseph Bianco served as Gerova's Chief Executive Officer ("CEO") from at least April 17, 2010 until his resignation on February 10, 2011.*fn20 Plaintiffs allege the same three breach of fiduciary duty claims against each of these defendants: (1) failing to register plaintiffs' shares; (2) allowing its assets to deteriorate; and (3) transferring substantial assets to Net Five (Counts VII-IX). Plaintiffs also allege an aiding and abetting breach of fiduciary duty claim against Gerova, Hirst and Hlavsa (Count X), and a breach of contract claim against Gerova (Count XI).

Net Five was formed as a real estate joint venture between Gerova and two other non-parties; it is based in Florida.*fn21 Plaintiffs allege an aiding and abetting breach of fiduciary duty claim against Net Five (Count XII).

C. Stillwater Funds Management and the Gerova Merger

Plaintiffs were investors in the Stillwater Funds, which were managed by SCP and contained "overvalued troubled assets."*fn22 As investors sought to redeem their funds, the Stillwater Funds experienced liquidity issues and SCP was unable to pay out the redemptions.*fn23 In an attempt to solve the illiquidity of their assets, SCP sought a merger with Gerova.*fn24

As part of the merger agreement, Gerova acquired all of SCP's assets and liabilities.*fn25 The investor plaintiffs received "restricted convertible Preferred Stock of Gerova"*fn26 and those who sought redemptions were to be paid by Gerova.*fn27 As part of the merger, SCP received 266,667 Gerova ordinary shares, approximately $12 million in cash,*fn28 and the SCP directors - including Doueck and Rudy - received $24 million in unpaid management fees*fn29 and quarterly management fees going forward.*fn30 Doueck became a Gerova director as part of the merger,*fn31 and both he and Rudy sat on a three-person "investment committee"; the third person was appointed by Gerova.*fn32 Plaintiffs allege that this merger was not only ill-advised, but that Doueck entered into it "for his own benefit, without even performing any due diligence"*fn33 and that it was done at plaintiffs' expense.*fn34

D. Gerova Management

Plaintiffs fared no better after the merger. Even though the Amended Registration Rights Agreement ("Am. RRA") required Gerova to register Plaintiffs' shares, the shares were never registered*fn35 and plaintiffs' redemption requests were not honored.*fn36 Because of this, plaintiffs argue that they have been forced to "hold virtually worthless restricted shares," which have "declined more than 77 percent" in value.*fn37 Plaintiffs allege that life insurance settlement policies and corporate loans defaulted as a result of Gerova's failure to pay premiums,*fn38 adding to the devaluation of Gerova assets. On May 26, 2010, Gerova formed Net Five as part of a real estate joint venture with two non-parties.*fn39 Under that agreement, Gerova transferred "all of the owned real estate properties and real estate loan assets acquired from the Stillwater Funds" to Net Five.*fn40 Gerova received a 49 percent equity interest in the joint venture.*fn41

Between January 20, 2010 and February 15, 2011, Gerova experienced high management turnover, including three different CEOs during that time.*fn42 On February 24, 2011, the New York Stock Exchange ("NYSE") ceased trading of Gerova stock and Gerova securities were delisted on April 18, 2011.*fn43

Gerova terminated its stock registration on June 15, 2011.*fn44 SCP and Gerova are in negotiations to unwind the SCP/Gerova merger,*fn45 however plaintiffs assert that this will not allow SCP to recoup all the assets that it originally contributed to Gerova.


A. Motion to Dismiss

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court "accept[s] all factual allegations in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor."*fn46 The court

evaluates the sufficiency of the complaint under the "two-pronged approach" advocated by the Supreme Court in Ashcroft v. Iqbal.*fn47 First, "[a] court 'can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'"*fn48 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to withstand a motion to dismiss.*fn49 Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."*fn50 To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of "plausibility."*fn51 A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."*fn52 Plausibility "is not akin to a probability requirement;" rather, plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."*fn53

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint."*fn54 However, the court may also consider a document that is not incorporated by reference, "where the complaint 'relies heavily upon its terms and effect,' thereby rendering the document 'integral' to the complaint."*fn55 The court may also consider "legally required public disclosure documents filed with the SEC."*fn56


A. Personal Jurisdiction

On a motion under Rule 12(b)(2), when the issue of personal jurisdiction "is decided initially on the pleadings and without discovery, the plaintiff need show only a prima facie case."*fn57 Plaintiffs "can make this showing through [their] own affidavits and supporting materials containing an averment of facts that, if credited . . . would suffice to establish jurisdiction over the defendant."*fn58 Thus, a court may consider materials outside the pleadings,*fn59 but must credit plaintiffs' averments of jurisdictional facts as true.*fn60 "[A]ll allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party."*fn61 Nonetheless, where a "defendant rebuts plaintiffs' unsupported allegations with direct, highly specific, testimonial evidence regarding a fact essential to jurisdiction - and plaintiffs do not counter that evidence - the allegation may be deemed refuted."*fn62

1. Specific Jurisdiction Under CPLR 302(a)(1)

Under section 302(a)(1) a court may exercise specific jurisdiction over a non-domiciliary, provided that two conditions are met: the non-domiciliary defendant transacts business within New York and the claim against the nondomiciliary defendant arises directly out of this activity.*fn63 Section 302(a)(1) "is a single-act statute requiring but one transaction - albeit a purposeful transaction - to confer jurisdiction in New York."*fn64

"New York courts define 'transact[ing] business' as purposeful activity - 'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'"*fn65 There is no definitive test to determine if a defendant has purposefully availed itself of the privilege of conducting activities in New York. Rather, the totality of the defendant's contacts must be reviewed to determine whether jurisdiction is proper.*fn66

B. Standing

SCP, Gerova, and the directors and officers of SCP and Gerova argue that plaintiffs lack standing to assert direct claims for breach of fiduciary duties, aiding and abetting breach of fiduciary duties, and breach of contract, because any injuries were sustained by the Funds, the only entities that may bring suit.*fn67

Under New York law,*fn68 a claim is direct if "'the wrongdoer has breached a duty owed to the shareholder independent of any duty owing to the corporation wronged.'"*fn69 "Allegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually."*fn70 Furthermore, "New York courts have consistently held that diminution in the value of shares is quintessentially a derivative claim."*fn71 Even though decreased share value harms the individual shareholder, it "is said to derive from the harm suffered principally by the corporation and only collaterally to shareholders, and thus is derivative in nature."*fn72

C. SLUSA Preclusion*fn73

"SLUSA was enacted in 1998 to prevent class action plaintiffs from circumventing the heightened pleading requirements under the [Private Securities Litigation Reform Act] through artful pleading."*fn74 SLUSA states:

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 (A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or (B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.*fn75

A complaint triggers SLUSA when it alleges "'(1) an explicit claim of fraud or misrepresentation (e.g., common law fraud, negligent misrepresentations, or fraudulent inducement), or (2) other garden-variety state law claims that sound in fraud.'"*fn76 "'A claim sounds in fraud when, although not an essential element of the claim, the plaintiff alleges fraud as an integral part of the conduct giving rise to the claim.'"*fn77

Courts "'look beyond the face of the complaint to analyze the substance of the allegations made,'"*fn78 to identify plaintiffs who attempt to avoid SLUSA preclusion through artful pleading. Therefore, "[r]egardless of the words used by plaintiffs in their complaints and regardless of the labels they paste on each claim, the question is whether a material misstatement or omission in connection with the purchase or sale of a covered security is a necessary component of the claim."*fn79

To qualify as a covered class action, the suit must be one in which "damages are sought on behalf of more than fifty persons or prospective class members."*fn80 Additionally, plaintiffs must allege a misrepresentation or omission of a material fact in connection with a covered security.*fn81 A "'covered security is one traded nationally and listed on a regulated national exchange or issued by an investment company that is registered, or files registration statements, under the Investment Company Act of 1940.'"*fn82 The Supreme Court has shown a preference for "interpret[ing] the phrase 'in connection with' broadly."*fn83 In determining whether the "in connection with" requirement is met, a court looks at whether the covered securities are "at the heart of th[e] case."*fn84

D. Breach of Fiduciary Duty Claims

Under New York law, "[t]he elements of a claim for breach of a fiduciary obligation are: (i) the existence of a fiduciary duty; (ii) a knowing breach of that duty; and (iii) damages resulting therefrom."*fn85 Generally, "'a corporation does not owe fiduciary duties to its members or shareholders,'"*fn86 because recognizing such a duty "would lead to the confounding possibility that a shareholder of a corporation could bring a derivative action on behalf of the corporation against the corporation itself."*fn87 In New York, a director is required to "perform his duties . . . in good faith and with that degree of care which an ordinarily prudent person in a like position would use under similar circumstances"*fn88 and owes this "obligation to [the] corporation and its shareholders."*fn89

Although Gerova is a Bermuda corporation, the analysis of the breach of fiduciary duty claims against Gerova is substantively the same under Bermuda law - which "follows English law"*fn90 - and New York law.*fn91 "In the absence of substantive difference . . . a New York court will dispense with choice of law analysis; and if New York law is among the relevant choices, New York courts are free to apply it."*fn92

E. Aiding and Abetting Breach of Fiduciary Duties Claims

"A claim for aiding and abetting a breach of fiduciary duty [under New York law] requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach."*fn93

F. Breach of Contract Claim

"In order to state a claim of breach of contract, the complaint must allege: (i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform; and (iv) damages."*fn94 "Under New York law, a party's performance under a contract is excused where the other party has substantially failed to perform its side of the bargain or, synonymously, where that party has committed a material breach."*fn95 However, "[a] party cannot 'elect to continue with the contract, continue to receive benefits from it, and thereafter bring an action for rescission or total breach.'"*fn96


A. Personal Jurisdiction over Hirst

Plaintiffs assert personal jurisdiction over Hirst*fn97 citing his position as president of Gerova during the time of the alleged breaches of fiduciary duty.*fn98

Hirst does not dispute that he was involved in decisions regarding the SCP/Gerova merger and the he attended two meetings in New York regarding the merger, but presents evidence that undermines plaintiffs' allegations of jurisdiction. Hirst maintains - and plaintiffs do not contest - that he has no real property in New York, does not maintain a bank account in New York, and has never been employed or compensated by a New York corporation.*fn99 However, plaintiffs assert that Hirst, as Gerova's president at the time of SCP/Gerova merger, had sufficient ties to New York by negotiating the merger agreement in New York with SCP, a New York corporation.*fn100

Construing the allegations in the light most favorable to the plaintiffs and resolving all doubt in plaintiffs' favor, I conclude that plaintiffs have provided sufficient evidence to demonstrate a prima facie case of specific personal jurisdiction over Hirst based on his involvement in the SCP/Gerova merger. However, Hirst's assertions undermine plaintiffs' allegations such that it would be premature to determine conclusively that personal jurisdiction does, in fact, exist. Therefore, I conclude that limited discovery into the issue of personal jurisdiction over Hirst is appropriate.*fn101

B. Standing

Counts I-VI concern plaintiffs' breach of fiduciary claims against SCP and the SCP directors.*fn102 Plaintiffs have adequately pled the existence of a fiduciary duty, knowing breach of that duty, and damages arising therefrom. However, under New York law, two of these claims are derivative and therefore plaintiffs lack standing to bring them directly. Count I, failure to properly invest and value the assets is "'a classic claim of fund mismanagement that belongs to the Fund, and is therefore derivative.'"*fn103 Similarly, Count II, the alleged failure to sell the assets in a timely manner, is also a mismanagement claim that belongs to the Fund and not to plaintiffs individually.

Counts VIII and IX allege the following breach of fiduciary duty claims against the Gerova officers and directors (Doueck, Bianco, Hirst, Hlavsa, and Laslop): (1) allowing its assets to deteriorate and (2) transferring substantial assets to Net Five.*fn104 These mismanagement claims are derivative in nature and "'[d]erivative claims against corporate directors belong to the corporation itself.'"*fn105 Because plaintiffs lack standing to pursue these claims, they are dismissed.*fn106


Counts IV, V, and VI, which allege that SCP breached its fiduciary duty regarding the merger agreement with Gerova, are precluded by SLUSA and must be dismissed.*fn107 First, it is undisputed that Plaintiffs are a "covered class."

Second, the shares that plaintiffs received as part of the SCP/Gerova merger were not listed on a national exchange or traded nationally, however, they were "issued by" a registered investment company, and therefore qualify as covered securities.*fn108

Even though the Amended Complaint expressly disclaims that it sounds in fraud,*fn109 plaintiffs' complaint rests on the fact that the merger benefitted SCP to the plaintiffs' detriment. The merger required approval by at least fifty percent of the domestic SCP investors,*fn110 which was obtained. Unless plaintiffs were misled by misrepresentations or by material omissions, it is impossible to understand why they would approve a merger that provided such lucrative management fees at plaintiffs' expense. Because of this, a material misrepresentation or omission in connection with the merger is a "necessary component" of plaintiffs' claim*fn111 and such a claim is precluded by SLUSA.

Count X alleges that Gerova and its officers aided and abetted SCP's breaches of fiduciary duty through their direct participation in the SCP/Gerova merger and "substantially assisted" the breaches by: negotiating the merger terms; acquiring the assets and liabilities of SCP even though they knew SCP had not performed due diligence; and agreeing to pay SCP large management fees.*fn112

Because this claim is predicated on the same facts as the related breach of fiduciary duty claim alleged against SCP (Count V), it is also precluded by SLUSA.*fn113

Count XI, plaintiffs' breach of contract claim against Gerova, is not precluded by SLUSA as defendants suggest. The Am. RRA was entered into as part of the SCP/Gerova merger and was the contract governing the shares plaintiffs received from the merger.*fn114 As discussed previously, the plaintiffs are a "covered class" and the Gerova shares at issue in the Am. RRA are "covered securities," because they were "'issued by an investment company that [was] registered, or file[d] registration statements, under the Investment Company Act of 1940.'"*fn115

However, "[b]reaches of contract generally fall outside the scope of the securities laws,"*fn116 because failing "'to carry out a promise made in connection with a securities transaction . . . does not [constitute fraud] unless, when the promise was made, the defendant secretly intended not to perform or knew that he could not perform.'"*fn117 Even though breach of contract does not require fraud as a necessary component, contract claims that are an integral part of an alleged fraudulent scheme may be precluded by SLUSA,*fn118 but plaintiffs do not allege, and the pleading does not support, any misrepresentation or omission of material fact regarding the Am. RRA. Without such fraudulent conduct, the breach of contract claim is not precluded by SLUSA.

D. Breach of Fiduciary Duty

Counts VII, VIII, and IX against Gerova allege breach of its fiduciary duty by: 1) failing to register plaintiffs' shares; 2) allowing its assets to deteriorate; and 3) transferring substantial assets to Net Five. Plaintiffs claim that Gerova owed them a fiduciary duty because plaintiffs' interests were "directly and disproportionately tied to [the SCP/Gerova] assets,"*fn119 but cite no case law to support this proposition. This conclusory argument, without more is not sufficient to survive a motion to dismiss.

Courts have held that corporate directors owe a fiduciary duty to shareholders where there exists a "special relationship," such as "holding themselves out as agents"*fn120 or when they are "shareholder[s], officer[s], and director[s] of a closely held corporation,"*fn121 but there is no precedent finding such a "special relationship" between a corporation and its shareholders. A corporation does not owe a fiduciary duty to its shareholders;*fn122 for this reason, plaintiffs' breach of fiduciary duty claims against Gerova are dismissed for failure to state a claim.

Count III concerns SCP's failure to pay investors who sought redemptions. Even though this failure arguably stemmed from SCP's mismanagement of the Funds, the claim is direct and therefore appropriately pleaded. The failure was not felt by all SCP investors, but only those who sought such redemptions. Therefore, the failure to pay redemptions was independent of any duty owed to the corporation,*fn123 and survives SCP's motion to dismiss.

Count VII, as against the Gerova officers and directors, alleges breach of their fiduciary duty by failing to register plaintiffs' shares. As with Count III, the failure to register the shares was not felt by all Gerova shareholders, but only by those individuals who received the unregistered shares as part of the SCP/Gerova merger. Because of the "asymmetrical injury," felt by some, but not all, of the shareholders, this claim survives the Gerova officers' and directors' motions to dismiss.*fn124

E. Aiding and Abetting Breach of Fiduciary Duty

Count XII alleges that Net Five*fn125 substantially assisted Gerova's breach of fiduciary duty by negotiating the terms of the asset transfer, acquiring the assets, and allowing Gerova to keep the assets out of reach.*fn126 Because the underlying claim against Gerova for breach of fiduciary duty (Count IX) is dismissed for failure to state a claim, the related aiding and abetting claim against Net Five is also dismissed.

F. Breach of Contract

Count XI alleges that Gerova breached the Am. RRA. This agreement was made for "the benefit of Gerova Shareholders"*fn127 and provided that Gerova would "prepare and file with the [SEC] a 'Shelf' Registration Statement covering the resale of the Registrable Securities."*fn128 The parties agree that the Registration Statement was never filed with the SEC*fn129 and the shares were therefore never registered.*fn130

Gerova claims that it failed to register the shares because SCP did not provide it with the audits required for the filing. However, the parties agree that all of the required audits were delivered to Gerova by November 2010.*fn131 Whether the audits were filed too late for Gerova to register the shares has not been sufficiently established and remains a question of fact ill-suited for decision at the motion to dismiss stage. Because of this, plaintiffs have sufficiently pled a breach of contract claim against Gerova.


For the foregoing reasons, Counts I, II, and VIII-IX (as relating to the Gerova officers and directors) are dismissed as derivative; Counts IV-VI and X are dismissed as precluded by SLUSA; and Counts VII-IX (as relating to Gerova) and XII are dismissed for failure to state a claim. Counts III (breach of fiduciary duty against SCP for failing to pay redemptions), VII (as relating to the Gerova officers and directors), and XI (breach of contract against Gerova) survive defendants' motions to dismiss. Hirst's motion to dismiss for lack of personal jurisdiction is denied with leave to renew after the completion of limited discovery. The Clerk of the Court is directed to close these motions [Docket Nos. 60, 62, 64, 69, 96].


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