The opinion of the court was delivered by: Laura Taylor Swain United States District Judge
This Document Relates To: All Actions
MEMORANDUM OPINION AND ORDER
Lead Plaintiff State of Michigan Retirement Systems ("Lead Plaintiff"), brings this action on behalf of a putative class of investors ("Plaintiffs") who purchased or otherwise acquired publicly traded securities issued by American International Group, Inc. ("AIG" or the "Company"), between March 16, 2006, and September 16, 2008 (the "Class Period").*fn1 Plaintiffs principally allege that the Defendants AIG officers, directors, accountants and securities underwriters*fn2 ("Defendants") violated federal securities laws by materially misstating the extent to which AIG had accumulated exposure to the subprime mortgage market through its securities lending program and its credit default swap ("CDS") portfolio. As relevant to the current motion, Plaintiffs assert claims against AIG, PricewaterhouseCoopers LLP ("PwC"), the Director Defendants, and the Signing Executive Defendants for alleged violations of Section 11 of the Securities Act of 1933 ("Securities Act"), 15 U.S.C. § 77k ("Section 11"), and against the "Underwriter Defendants" for alleged violations of Section 11 and Section 12(a)(2) of the Securities Act, 15 U.S.C. § 77l(a)(2) ("Section 12(a)(2)"). PwC has moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure to dismiss all of the Securities Act claims against it, and AIG, the Director Defendants, the Signing Executive Defendants, and the Underwriter Defendants have moved for partial dismissal of the Securities Act claims against them.*fn3 The Moving Defendants argue that the Complaint fails to allege that they disbelieved the allegedly actionable misrepresentationsand omissions at the time they were made, as required by the recent holding of the United States Court of Appeals for the Second Circuit in Fait v. Regions Financial Corporation, 655 F.3d 105 (2d Cir. 2011). The Court held oral arguments on the motion on April 2, 2013. For the following reasons, the Moving Defendants' motion is granted.
Plaintiffs' 284-page Complaint details Plaintiffs' allegations as to the causes of AIG's liquidity crisis and the attendant material misstatements and omissions on Defendants' part. The Court assumes the parties' familiarity with the record and limits the following summary of Plaintiffs' factual allegations to matters that are material to the Court's legal conclusions.
A preliminary word about the structure of the Complaint is helpful in understanding the Court's disposition of this motion. Plaintiffs' Complaint is divided into two parts. The first part contains the claims, and supporting factual allegations, brought pursuant to the Securities Exchange Act of 1934 ("Exchange Act"). (Compl. ¶¶ 1-576.) The second part of the Complaint contains the claims, and supporting factual allegations, brought pursuant to the Securities Act. (Id. ¶¶ 577 - 701.) The Securities Act section of the Complaint "expressly exclude[s] and disclaim[s] any allegation that could be construed as alleging or sounding in fraud or intentional or reckless misconduct" and, with a few exceptions (explained further below), the Securities Act section "do[es] not incorporate . . .any allegations of fraud in connection with [the Securities Act claims]." (Id. ¶¶ 607, 621, 639, 684).
Plaintiffs allege that the Moving Defendants are liable under the Securities Act because certain SEC filings contained "untrue statements of material fact and material omissions," including that: "(a) [the filings] failed to disclose . . . the decision to stop writing CDS [Credit Default Swap] contracts on multi-sector CDOs [collateralized debt obligations], and . . . the reasons for that decision . . . ; (b) they failed to disclose the decision made by AIG Investments in late 2005 to change the mix of investments for the securities lending program to contain 75 percent RMBS and other ABS [Asset-Backed Securities] . . . and failed to disclose (and materially misrepresented) . . . the concentration of investments in RMBS and other ABS that was made through the securities lending program; (c) they failed to disclose that the CDS contracts frequently provided that AIGFP's [American International Group Financial Products Corporation] CDS counterparties were the presumptive prevailing party in settling the value of the multi-sector CDOs underlying AIGFP's CDS contracts . . . ; (d) they misrepresented . . . the actual cash collateral payment requirement for the securities lending program . . . ; and (e) they failed . . . to adequately set forth AIG's concentration of credit risk in the U.S. residential and mortgage market, including the subprime market . . . ." (Compl. ¶ 594.)
The Complaint alleges that AIG's securities offering materials "failed to disclose the material fact that many of the underwriters of securities and notes issued by AIG during the Class Period were also counterparties of AIG with respect to its CDS portfolio and securities lending program, and therefore, that significant portions of the sums raised through the Offerings by the Underwriters would or could be used to post collateral for the benefit of the Underwriters, or to make payments to the Underwriters." (Id. ¶ 597.) The Complaint additionally alleges that the "financial statements, including the footnotes thereto, included and/or incorporated by reference within the Offering Materials were materially false and misleading . . . because they were in violation of GAAP [(generally accepted accounting principles)]." (Id. ¶ 606.)
Plaintiffs' GAAP-related contentions are addressed more fully in the Exchange Act section of the Complaint, wherein the Plaintiffs allege that the Section 10(b) Defendants violated the following Financial Account Standards ("FAS"): (1) FAS 107, 133 and 157, which required that AIG's CDS portfolio be reported at fair value (id. ¶¶ 426-29, 432-33); (2) FAS 5, which required AIG to disclose losses incurred and loss contingencies in connection with its credit default swaps (id. ¶¶ 430-33); and (3) FAS 107, which allegedly required AIG to disclose, among other things, the fact that AIG had taken "significant concentrations, or group concentrations, of credit risk" by investing 75 percent of its securities lending portfolio in residential mortgage-backed securities, (Id. ¶ 434). The Complaint also alleges that AIG violated its obligation under Financial Accounting Standards Board Interpretations ("FIN") 45 to disclose certain guarantees -- specifically, the full amount of AIG's obligations to post collateral under its credit default swaps. (Id. ¶¶ 441-42.) Plaintiffs have since clarified, in connection with this motion practice, that the only GAAP-related allegations they are pursuing against the Moving Defendants under the Securities Act are those pertaining to FAS 107 and FIN 45.
Plaintiffs allege that PwC violated Section 11 by falsely certifying that (1) AIG's financial statements were prepared in conformity with GAAP, and (2) that PwC's audit was performed in accordance with Generally Accepted Auditing Standards ("GAAS"). (Id. ¶¶ 645- 46.) Plaintiffs allege that PwC was "in a unique position to identify, and to cause the Company to remedy, the omission of both (a) the recognition of incurred losses from required fair value adjustments and (b) required disclosures in the Company's financial statements and SEC filings discussed herein." (Id. ¶ 644.) According to Plaintiffs, had PwC conducted a proper audit, it would have learned of -- and required AIG to disclose -- the flaws in AIG's internal controls and the risks posed by the CDS portfolio, the securities lending program, and the concentration of exposure to the subprime mortgage market. (Id. ¶¶ 646, 649, 667-72.) Plaintiffs assert that PwC's failure to conduct a proper audit resulted in its signing unqualified opinions (included in the Company's 2005 and 2006 Forms 10-K) that did not disclose adequately any of these flaws.
In considering a motion pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, the Court applies the same standards used for the determination of a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss a complaint for failure to state a claim. Cortes v. City of New York, 700 F. Supp. 2d 474, 480-81 (S.D.N.Y. 2010); see also LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009). Thus, the Court accepts as true the non-conclusory factual allegations in the complaint and draws all inferences in the Plaintiffs' favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009).
To survive a Rule 12(b)(6) motion, a complaint must "plead enough facts to state a claim that is plausible on its face." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotation marks omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to ...