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In re Bank of New York Mellon Corp. Forex Transactions Litigation

United States District Court, S.D. New York

May 1, 2014

In re: BANK OF NEW YORK MELLON CORP. FOREX TRANSACTIONS LITIGATION. This document relates to: Los Angeles Cty. Emp. Ret. Ass'n ex rel. FX Analytics
v.
The Bank of New York Mellon Corp., 12 Civ. 8990 (LAK), In re Bank of New York Mellon Corp. False Claims Act Foreign Exch. Litig., 12 Civ. 3064 (LAK)

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[Copyrighted Material Omitted]

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For Los Angeles Department of Water and Power Retirement Plan and Los Angeles County Employee Retirement Association, Plaintiffs: Steven N. Williams, Adam J. Zapala, Eric J. Buescher, Gene W. Kim, COTCHETT, PITRE & MCCARTHY LLP; Carmen A. Trutanich, Alan L. Manning, Marie McTeague, OFFICE OF THE LOS ANGELES CITY ATTORNEY.

For Plaintiff/Relator: Richard H. Heimann, Lexi J. Hazam, Robert L. Lieff, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP; Philip R. Michael, MICHAEL LAW GROUP; Michael P. Thornton, Michael A. Lesser, Evan R. Hoffman, THORNTON & NAUMES LLP.

For Defendants: Reid M. Figel, Rebecca A. Beynon, David L. Schwarz, Derek T. Ho, Gregory G. Rapawy, Joshua D. Branson, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C.

OPINION

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MEMORANDUM OPINION

Lewis A. Kaplan, United States District Judge.

This is yet the next chapter in the litigation regarding the standing instruction foreign exchange (" FX" ) trading service provided by Bank of New York Mellon (" BNY Mellon" )[1] to its custodial customers. In Southeast Pennsylvania Transportation Authority v. Bank of New York Mellon Corp . (" SEPTA " ),[2] this Court sustained a BNY Mellon customer's claim of breach of contract and, to a limited extent, its claim of breach of fiduciary duty. In United States v. Bank of New York Mellon (" DOJ " ),[3] it sustained in part the federal government's claims that BNY Mellon committed mail and wire fraud and is liable for civil penalties under Section 951a of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, commonly known as FIRREA.[4]

Here, a relator brings claims on behalf of four California governmental entities against BNY Mellon, its affiliates, and unnamed individuals under the California

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False Claims Act (" CFCA" ). Two of these entities have intervened to pursue their own claims. The matters are before the Court on defendants' motions to dismiss the operative complaints.

Background

I. Procedural History

Relator FX Analytics first filed a complaint against defendants under seal in Alameda County Superior Court in October 2009. It asserted CFCA claims on behalf of a number of California governmental entities including, inter alia, Los Angeles County Retirement Association (" LACERA" ), Los Angeles Department of Water & Power Employees' Retirement Plan (" LADWP" ), the Santa Barbara County Employees' Retirement System Fund (" SBCERS" ), and the Tulare County Employees' Retirement Association Fund (" TCERS" ).[5] LACERA, LADWP, and other entities not relevant here subsequently intervened in the action and asserted claims under the CFCA, the California Business and Professions Code, and the common law. In November 2011, defendants removed the case to the United States District Court for the Northern District of California and later moved to dismiss.

In March 2012, the California district court held that none of the CFCA claims stated a legally sufficient claim, upheld the legal sufficiency of all of the non-CFCA claims except that for unjust enrichment, and held that the venue was improper as to LACERA's complaint in consequence of a forum selection clause in the relevant custody agreement.[6] The court permitted plaintiffs to seek leave to amend and ruled that the dismissal of LACERA's claims was without prejudice to their being re-filed in the proper venue. In April 2012, the case was transferred to this Court by the Judicial Panel on Multidistrict Litigation (" JPML" ). Both relator and LADWP eventually filed Fourth Amended Complaints. Defendants moved to dismiss both complaints in February 2013.

Meanwhile, pursuant to the March 2012 opinion, LACERA re-filed its claims in a new complaint in the Central District of California in September 2012. That case too was transferred to this Court by the JPML, and defendants moved to dismiss in December 2012.

Following filing of the motions to dismiss in December 2012, both LACERA and LADWP filed amended complaints, LACERA's first and LADWP's fifth. As previously indicated, the Court treats the December 2012 motions as being addressed to the subsequent amended complaints in the interest of judicial economy.

II. Factual Background

LACERA, LADWP, SBCERS, and TCERS each had a custodial agreement with BNY Mellon[7] whereby BNY Mellon agreed to hold various assets, including cash and securities, on each's behalf. BNY Mellon expressly acknowledged in its agreements with LADWP and LACERA that it had assumed fiduciary obligations, at least in certain respects.[8]

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As part of their custodial relationships, each customer regularly received monthly invoices for payment in accordance with a particular fee schedule.[9] The fee schedules varied by client.[10] In each case, however, the fee schedule specified that the client was responsible for certain " custodial fees" --fees that were fixed or that varied with the value of the assets BNY Mellon held on the client's behalf.[11] Moreover, the fee schedule in each case specified certain " transaction fees" --fees that were tied to individual transactions conducted by the client with respect to its assets in BNY Mellon custody.[12]

From time to time, the clients wished to engage in FX trading, e.g., to convert foreign currency dividends into U.S. dollars. Each used BNY Mellon's standing instruction service to do so. The Court assumes familiarity with its prior opinions that lay out the details of this program.[13] As the Court recently summarized,

" In standing instruction ('SI') trading, BNY Mellon automatically converted its customers' funds from one currency to another as such needs arose, informing the customer of the executed price only after the fact. It described the service, among other things, as providing 'best execution.' Plaintiffs in this and other actions have alleged, however, that this term had an industry meaning inconsistent with the Bank's actual pricing practices. These practices, which were not disclosed to customers, were to price the trades at or near the least favorable interbank market rate of a given trading day. SI trading was highly profitable for BNY Mellon . . . as its margins well exceeded those of directly negotiated FX transactions." [14]

LACERA and LADWP allege that they or their investment managers signed certain FX procedure forms relating to the program.[15] One hyperlink on this form went to an FX policies and procedures document, and another went to the Standing Instructions Page, which contained the representation that the program provided best execution. These items are discussed in more detail in SEPTA .[16]

Each client received monthly transaction statements relating to standing instruction transactions that indicated the prices at which their currencies had been converted during the prior month.[17] These statements contained no requests for action or payment by the client, as the client's account already had been debited or credited by BNY Mellon in accordance with the conversion rate relevant to the given

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trade.[18] But plaintiffs' contracts did afford them a fixed period in which they could object to any transaction listed on the report.[19]

Aside from the FX conversion rates at which BNY Mellon executed the trades, certain clients allege that they paid separate and additional transaction fees for each standing instruction trade and that these transaction fees were billed on the custodial invoices discussed above. In particular, LACERA alleges that it was charged a fee ranging from $12 to $75 for each standing instruction trade.[20] Similarly, the relator alleges that SBCERS and TCERS paid " transaction fees for custodial standing instruction FX trades as well as 3rd party FX transactions." [21] LADWP alleges that BNY Mellon represented " that its Standing Instruction service was 'free of charge.'" [22]

Discussion

LADWP, LACERA, and relator (on behalf of TCERS and SBCERS) each brings claims under the CFCA. LADWP and LACERA bring claims also of breach of contract, breach of fiduciary duty, fraud by concealment, and violation of California Business and Professional Code Section 17200.[23]

I. Breach of Contract

LACERA and LADWP contend that defendants are liable for breach of contract on a number of grounds, including their alleged failures to (1) provide best execution, (2) net trades, (3) keep proper records, (4) provide competitive rates, (5) exercise reasonable care in the execution of duties, and (6) disclose the standing instruction pricing scheme.[24]

The Court denies defendants' motions insofar as plaintiffs advance the theory of breach of contract this Court sustained in SEPTA --that FX procedure forms relating to standing instruction incorporated a contractual best execution obligation that defendants allegedly failed to meet.[25] The Court, however, grants the motion as to all other theories of breach of contract.

Plaintiffs allege that defendants have breached a contractual obligation to net their trades based on a representation on defendants' website that they would aggregate and net trades " based on guidelines

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tailored to client needs." [26] Defendants contend that this representation did not promise netting but simply made it available to clients who negotiated customized netting arrangements. But, as this Court observed in DOJ, that understanding of the statement cannot be determined as a matter of law at this stage.[27] Nevertheless, the complaints fail to allege that this representation on the website formed part of a contract among the parties. This theory therefore is dismissed.

Plaintiffs allege also that the contracts obliged defendants " to provide extremely competitive market driven rates" and that defendants asserted that the competitiveness of their rates was ensured through a report showing rates falling outside of the daily range.[28] This theory too fails.

The Court has accepted the sufficiency of plaintiffs' " best execution" theory because plaintiffs plausibly have alleged that the term has an industry meaning inconsistent with defendants' pricing practices.[29] Plaintiffs allege nothing comparable with regard to " competitive rates." Plaintiffs do not allege that BNY Mellon's pricing was uncompetitive in the universe of similar standing instruction products. Moreover, the Court questions whether defendants' alleged pledge to " strive[]" to provide competitive rates could be an enforceable contractual promise.[30]

Nor may plaintiffs proceed on a theory that defendants' pricing breached a contractual standard of reasonable care. To be sure, plaintiffs allege that defendants assumed a contractual duty to discharge their duties " with the competence, care, skill, prudence, and diligence prevailing in the custodial industry." [31] But, as defendants point out, this is a duty of skill, distinct from a duty of loyalty.[32] Plaintiffs do not allege any facts suggestive of any failure on defendants' part to perform in a skillful, careful, or diligent manner.

Plaintiffs assert also a breach of the implied covenant of good faith and fair dealing. But as the Court explained in SEPTA, that contention is inapposite in this context.[33]

II. Breach of Fiduciary Duty

LACERA and LADWP allege that their custodial contracts created a fiduciary relationship and that defendants breached their fiduciary duties. The Court considers the two alleged breaches of breach of fiduciary duty they advance.

A. Fiduciary Obligation to Provide Best Prices

First, SEPTA alleged that BNY Mellon was acting in a fiduciary capacity

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when executing standing instruction trades. It contended that the bank therefore had a freestanding obligation to provide the best pricing it could, independent of any best execution covenant or representation. This Court disagreed, concluding that SEPTA's complaint in substance alleged that BNY Mellon acted as principal, not as a fiduciary, when executing standing instruction trades for SEPTA.

LADWP's complaint alleges little to warrant a different conclusion. It quotes a part of its custodial contract indicating that BNY Mellon " acknowledge[d] that it is a Plan fiduciary with respect to the duties undertaken pursuant to this Agreement ." [34] It alleges that BNY Mellon represented during the request for proposal (" RFP" ) process that, as custodian, it would have " a fiduciary responsibility to ensure that all of your assets are properly held in safekeeping and that all assets are accurately reported on our accounting system." [35] The RFP response, which allegedly was incorporated into the contract, said also that BNY Mellon was " able to . . . provide foreign exchange services" and explained those services in greater detail.[36] But these allegations are insufficient. An obligation to keep safe and report assets accurately does not give rise to a best pricing obligation. Moreover, the complaint's allegation that FX trading was provided as a " service" did not make it one of its BNY Mellon's " duties" as custodian of LADWP's assets under the custodial agreement.

LACERA's complaint is similarly deficient. It alleges that the contract defined " Custodian" as BNY Mellon " in its fiduciary capacity as the entity which is obligated to preserve, control and safekeep any Property" entrusted to it by LACERA.[37] It further alleges that BNY Mellon " acknowledge[d]" in the contract " that this Agreement place[d] it in a fiduciary relationship with LACERA." [38] It alleges that BNY Mellon " agree[d] to provide the custodial, accounting, and reporting services" to LACERA outlined in a document called the " Statement of Work." [39] It then quotes from a portion of the Statement of Work that obligated BNY Mellon to " make payment of funds . . . for the purchase or sale or [sic] foreign exchange of foreign exchange contracts for the Account, including transactions executed with or through [BNY Mellon] or its Agents." [40] But these allegations also fail. That BNY Mellon was obligated to make payments to facilitate trading did not give rise to a fiduciary obligation to provide the best possible trading prices.

Perhaps recognizing these deficiencies, plaintiffs rely almost entirely on supposed contractual language that appears nowhere within the four corners of the complaints. LADWP relies on language said to obligate BNY Mellon to " [t]ake actions necessary to settle transactions in . . . foreign exchange or foreign exchange contracts." [41] LACERA relies on quotations from BNY Mellon's RFP response (which it alleges also was incorporated into the contract) and a document entitled " A Guide to Trading Around the World," which allegedly was an appendix to the " Statement of

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Work" of the original contract.[42]

While the Court has discretion to consider language from documents such as these -- the documents plainly are relied on by plaintiffs and are integral to the complaint -- it declines to do so.[43] It is plaintiffs' responsibility to allege facts sufficient to make out plausible claims for relief. Plaintiffs did not quote this language in or attach the documents said to contain it to the complaints. This failure resulted in scattershot and undeveloped briefing, as defendants did not have notice of these factual allegations underlying plaintiffs' claim. This problem is particularly acute with respect to " A Guide to Trading Around the World," as LACERA and defendants each argue about what version of the document allegedly was incorporated into the contract and when.

Thus, plaintiffs' breach of fiduciary duty claim, insofar as it is premised on an alleged freestanding fiduciary obligation of BNY Mellon to provide the best possible pricing, is dismissed.

B. Alleged Misrepresentations and Nondisclosure

Despite dismissing the claim that BNY Mellon acted in a fiduciary capacity while executing SEPTA's standing instruction trades, the Court permitted SEPTA to pursue a claim for breach of fiduciary duty based on assertions that BNY Mellon misleadingly described the program as providing " best execution" [44] and failed adequately to disclose " whether the standing instruction service was part of BNY Mellon's fiduciary responsibilities." [45] Plaintiffs have indicated that they seek to advance the same theory.

Defendants have not provided a reason to rule differently here. They do not argue that LADWP or LACERA's contracts warrant a different conclusion--as in SEPTA, the Court concludes that standing instruction was closely related to BNY Mellon's undisputed fiduciary duties, triggering a need for BNY Mellon not to mislead its clients when it sought further profit from the relationship. Defendants allude briefly to the fact that SEPTA was decided as a matter of Pennsylvania law, whereas California law governs the present case.[46] But they point to no California law inconsistent with the basic principles on which SEPTA relied -- that " where a fiduciary seeks to profit by acting in a principal capacity in matters sufficiently related to the subject of its fiduciary duties, the fiduciary may do so only if, at a minimum,

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it fully and fairly discloses the nature of the relationship and its duties." [47]

Indeed, if anything, California appears to recognize the same basic principles that supported SEPTA's position under Pennsylvania law. In Van de Kamp v. Bank of America ,[48] the California Court of Appeal concluded that a custodial bank's handling of cash proceeds after a sale of securities did not violate any fiduciary obligations. It reasoned that " [t]he bank's duty as agent is limited to the scope of the agency set forth in the parties' agreement" and the agreement indicated that the agency terminated upon the sale of securities.[49] At the same time, the court went on to state: " The question remains, however, whether defendant breached any duty of disclosure owed to the principals of the custodial agency accounts. As previously discussed, the agent must disclose whether it acts on its own account or adversely to the principal in a transaction connected with its agency." [50] Thus, the court recognized that an agent may have a duty of disclosure with regard to matters " connected with its agency" even when the agency relationship does not formally govern the transaction in question.[51] Other California authorities confirm the point.[52]

The Court cannot conclude as a matter of law that the duty of disclosure has been satisfied here.[53] The motion therefore is denied as to claims of breach of fiduciary

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duty based on alleged misrepresentations and nondisclosures.

III. CFCA

LACERA, LADWP, and relator (on behalf of TCERS and SBCERS) bring several claims under the CFCA, which generally proscribes, among other things, the submission of false claims for money, property, or services, to the government. It has been designed " to prevent fraud on the public treasury" [54] and " should be given the broadest possible construction consistent with that purpose." [55] As it " is patterned on similar federal legislation [the federal False Claims Act (" FCA" )][, . . . ] it is appropriate to look to precedent construing the equivalent federal act." [56]

A. The Relevant Version of the CFCA

As an initial matter, it is necessary to determine which of two versions of the CFCA applies here.

California substantially broadened potential liability under CFCA, effective in January 2010. Those changes generally conformed the CFCA to changes to the FCA in the 2009 Fraud Enforcement and Recovery Act (" FERA" ).[57] Defendants argue that the recent revisions do not apply here because the conduct at issue occurred before their January 1, 2010 effective date.[58]

Although plaintiffs'[59] complaints often quote from the 2010 version of the CFCA, neither opposition brief disputes defendants' contention that the prior CFCA version governs. The Court therefore assumes, for purposes of this motion, that the recent revisions to the CFCA do not apply.

B. Section 12561(a)(1)

Section 12651(a)(1) makes it unlawful to " [k]nowingly present[] or cause[] to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval." [60] Plaintiffs contend that defendants are liable for presenting two different kinds of false claims: (1) monthly transaction statements and (2) monthly custodial invoices.

1. Transaction Statements

Judge Alsup rejected the transaction statement theory on the ground that those statements did not constitute " claims" under the CFCA.[61] Two other state courts have reached the same conclusion with regard to parallel state false claims statutes.[62] This Court agrees.[63]

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The CFCA defines a " claim" to include any " request or demand for money, property, or services" from the state or political subdivision.[64] But the statements of transactions cannot reasonably be construed as requests or demands. They were accounting statements of past transactions that did not request or demand anything.

Plaintiffs contend principally that the statements functionally were requests or demands because plaintiffs had the right to object to the transactions and not remain liable for the trades.[65] They correctly note that the CFCA was designed " to prevent fraud on the public treasury" [66] and " should be given the broadest possible construction consistent with that purpose." [67] But even broad construction does not permit a court to ignore the text of the statute.[68] The Court cannot stretch defendants' providing plaintiffs a right to object to a transaction as a " request or demand" for money, property, or services.

The structure of the CFCA is enlightening as well. In Section 12651(a)(4), the legislature specifically contemplated the possibility that a defendant might be liable--even in the absence of a " claim" --when it " [h]as possession, custody, or control of public property or money" and fails to deliver all of that property.[69] Moreover, in Section 12651(a)(7), known as the reverse false claims provision, the CFCA permits liability in certain circumstances where a defendant unlawfully conceals, avoids, or decreases an obligation to provide money or property to the government. Thus, the legislature was well aware that liability may be appropriate even in the absence of any request or demand. But the fact that it provided for liability in certain of these circumstances under Sections 12651(a)(4) and (7) serves to confirm that no liability was intended under Section 12651(a)(1) in the absence of a claim.[70]

In so holding, the Court does not require plaintiffs to allege an explicit request or demand. Surely Sections 12651(a)(1) and (2) do not require a formal invoice for liability to attach; conduct amounting to an implicit request may be sufficient.[71]

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But that is not this case. At the time these statements were issued, the accounts already had been debited and there was nothing further to demand.

Finally, plaintiffs argue that the statements were implicit requests because " they induced [plaintiffs] to continue paying out money through the Standing Instruction service." [72] The point merits little discussion. Any behavior on plaintiffs' part the statements may have induced is irrelevant to whether the statements themselves were implicit or explicit requests or demands.

2. Custodial Invoices

The Court thus turns to plaintiffs' new theory, which has not been addressed by any other court--that their monthly custodial invoices constituted " false claims" under the CFCA.[73] In moving to dismiss the Section 12651(a)(1) count as to this theory, defendants do not dispute that these invoices constituted claims. Rather, they challenge whether (1) the alleged false claims have been alleged with particularity as required by Fed.R.Civ.P. 9(b), (2) plaintiffs sufficiently have alleged that the invoices were false, and (3) plaintiffs adequately have alleged scienter .

Plaintiffs advance four separate theories as to why the custodial invoices were false.

a. False on Their Face

Plaintiffs contend first that the custodial invoices were false on their face because they allegedly " represented to Plaintiff[s] a flat-fee for [BNY Mellon's] services but failed to disclose the significant amount of additional moneys Plaintiff[s] paid over to the Bank through Standing Instruction FX services." [74] Furthermore, plaintiffs allege that the invoices were false on their face " because they led [plaintiffs] to believe that these were the complete and total amounts billed to Plaintiff." [75]

Under Rule 9(b), " a party must state with particularity the circumstances constituting fraud." [76] This requires a plaintiff to " adequately specify the statements it claims were false or misleading, give particulars as to the respect in which the plaintiff contends the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." [77] Plaintiffs do not dispute that Rule 9(b) applies here.[78]

Plaintiffs' pleadings as to this theory fall well short. Plaintiffs allege substantially nothing about the text of the custodial invoices. They fail to identify a single statement in any of the invoices that arguably was false or even misleading. Given that plaintiffs allege that they received

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these invoices regularly, it is particularly reasonable to have expected more here.

Plaintiffs' inadequate pleadings would warrant dismissal under Rule 8 as well. Plaintiffs' allegations do not explain how defendants' invoicing of a flat custodial fee plausibly could have misled plaintiffs into believing that defendants were forswearing the ability to make additional compensation from the relationship. Plaintiffs' subjective beliefs are irrelevant absent a plausible basis to conclude that the beliefs were reasonable and induced by the statements in question.

b. Underpinned by Fraud

Plaintiffs' failure to allege any falsity on the face of the invoices does not end the matter. Some California courts have recognized that " the claim itself need not be false but only need be underpinned by fraud." [79] For example, liability exists when the government pays on a claim under a contract that " 'was originally obtained based on false information or fraudulent pricing.'" [80] These CFCA cases draw directly from federal cases recognizing a " fraud-in-the-inducement" theory of false claims liability.[81] The underlying principle is that fraud inducing a contract does " 'not spend itself with the execution of the contract.'" [82] Rather, the " 'taint'" of the fraud enters into each subsequent claim for payment the fraudster thereafter makes upon the government.[83] The Fourth Circuit has synthesized this theory as requiring proof of four elements: " (1) whether there was a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to pay out money or to forfeit moneys due ( i.e., that involved a 'claim')." [84]

Plaintiffs allege a number of different fraud theories. The Court takes them in turn.[85]

i. Best Execution

The Court considers first whether plaintiffs adequately have alleged that the custodial invoices were underpinned by fraud due to defendants' " best execution" representations--a theory sustained under the federal mail and wire fraud statutes in DOJ. Defendants principally challenge this theory for failing to allege inducement or reliance.[86]

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Each plaintiff alleges that " [h]ad Plaintiff known of Defendants' real conduct with respect to executing FX transactions, Plaintiff would not have continued to vest Defendants with the heightened level of trust exhibited in its custodial relationship and carried out through Standing Instruction." [87] Each plaintiff further alleges that defendants' false and fraudulent representations--including its statements about best execution--" induced Plaintiff to maintain the status quo with respect to its custodial relationship with Defendant and induced it to continue utilizing Standing Instruction as part of this relationship." [88]

Defendants argue that these allegations are insufficient because plaintiffs nowhere allege that the fraud induced the original contract--they contend that " [p]laintiffs must allege that BNYM made misrepresentations about [the] standing instruction service which caused the Funds to retain BNYM as custodian ." [89] Because plaintiffs do not allege that the representations at issue were even made before they first initiated their custodial relationships with BNY Mellon, defendants continue, the allegations are insufficient.

Defendants' narrow understanding of the fraud-in-the-inducement theory has little to recommend it, and the Court rejects it. As the Fourth Circuit has described it, the critical question is whether the fraudulent conduct " caused the government to pay out money." [90] It is axiomatic that Section 12651(a)(1) " attaches liability, not to the underlying fraudulent activity, but to the claim for payment ." [91] Plaintiffs may hold defendants liable if defendants fraudulently induced the payment of individual custodial invoices, even if the representations postdated the original relationship.

In assessing whether the fraud induced payment of the invoices to create CFCA liability, it is natural to consider California's " actual reliance" standard for common law fraud in the inducement claims.[92] The misrepresentation need not be " the sole or even the predominant or decisive factor in influencing [plaintiff's] conduct." [93] It is sufficient if a misrepresentation is a " substantial factor" in the decision.[94] An inference of reliance arises if the misrepresentation was material.[95] Moreover, when plaintiff " alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements." [96] Finally, where

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the fraud is an omission, " [o]ne need only prove that, had the omitted information been disclosed one would have been aware of it and behaved differently." [97]

Defendants therefore overreach in arguing that plaintiffs' payment of custodial fees after the alleged fraud was revealed forecloses inducement as a matter of law. This argument may persuade at summary judgment or trial, but does not carry the day now. Moreover, at least certain plaintiffs allegedly were billed individual transaction fees for each standing instruction trade.[98] Plaintiffs allege that they stopped using standing instruction once they learned about defendants' practices.[99] Plaintiffs may seek to establish that payment of these individual transaction fees, even if not that of the overall custodial fees, was induced by fraud.

Nevertheless, plaintiffs' allegations are conclusory and insufficient. Nowhere do plaintiffs allege that they or their agents reviewed the web page on which the " best execution" representation was made[100] or even that they or their agents otherwise were aware that defendants had been representing their service as providing best execution.[101] Plaintiffs allege that they would have acted differently had they known of defendants' conduct. But this allegation would answer the wrong question if plaintiffs had no right to know about defendants' pricing practices in the first place. Absent adequate pleading of a duty to disclose independent of the " best execution" representation,[102] plaintiffs must allege at a minimum some ex ante awareness of the representation that could permit the inference that it was a substantial factor in their payment of the invoices.[103]

ii. Fraudulent Omissions

Plaintiffs next allege that defendants fraudulently omitted their markups and time stamps on trades.[104] In DOJ, this Court made clear that such a theory is deficient in the absence of any fiduciary relationship; defendants were under no

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obligation to disclose such information in an arm's-length transaction.[105] This is dispositive as to TCERS and SBCERS, which nowhere allege the existence of a fiduciary relationship with defendants.

Nor have LACERA or LADWP alleged facts sufficient to establish such a duty to disclose. They were not acting in a fiduciary capacity as to standing instruction trades. While the Court has allowed them to proceed on claims of breach of fiduciary duty with respect to certain alleged misrepresentations and nondisclosures, neither LACERA nor LADWP has sought to explain how that would give rise to a duty to disclose the omissions of which they complain--markups and time stamps.

iii. Remaining Theories

Plaintiffs allege that defendants fraudulently " assign[ed] fictitious FX rates to currency trades as exhibited in reports and statements." [106] This is not a viable independent theory of fraud. Asserting that the rates are " fictitious" merely begs the question--as opposed to what allegedly " real" rates? " The Bank did not misrepresent the rates for the FX transactions. It is conceded that the rates [BNY Mellon] charged were accurately reflected on monthly account statements." [107] Perhaps plaintiffs mean that the rates were represented to be best execution rates but were not. In such a case, the fraud would be the " best execution" representation, not the rates.

Plaintiffs allege that defendants fraudulently represented that they would offer competitive rates.[108] This Court already has concluded this allegation fails to state a breach of contract claim. It certainly does not state a claim for fraud.

LACERA and LADWP, but not relator, allege that BNY Mellon fraudulently represented during the RFP process that it would act as a fiduciary and safekeep and accurately report the fund's assets.[109] Even assuming that plaintiffs allege a breach of any of these duties, they fail to allege that these representations knowingly were false when made, in 1994 for LACERA and in 2004 for LADWP.[110]

Finally, plaintiffs fail to allege that defendants' representations regarding netting amounted to fraud for the reasons explained in DOJ .[111]

c. Implied Certification

Under this theory, a contractor's submission of a claim for payment is understood to be an implicit certification that it has complied with certain contractual or regulatory requirements.[112] Accordingly, courts have held that a contractor may be held liable for submission of a false claim if it " submit[s] claims for payment while knowing that it has violated contractual provisions that are material to the government's decision to pay." [113] As a California intermediate court has explained, " [i]t is reasonable for governmental entities to assume

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that contractors seeking payment are in compliance with the material terms of their contracts." [114] If the contractor cannot comply and informs the government, then CFCA liability is unwarranted. " But if that same contractor is aware of the noncompliance and chooses to seek payment without informing the government, then it is a fraud appropriately within the scope of the CFCA." [115]

Plaintiffs contend that in submitting the custodial invoices, defendants impliedly and falsely certified that they complied with alleged contractual obligations to (1) provide best execution, (2) provide competitive rates, (3) provide netting, and (4) generally act for the benefit of its custodial clients.

Plaintiffs' allegations fail.[116] In these cases, the defendant's submission of a claim is wrongful because it seeks payment which it knows it does not deserve, as the defendant failed to comply with material contractual conditions. The problem here is that plaintiffs have not alleged that defendants knew, or were reckless in not knowing, that they were obligated contractually to provide best execution, let alone that this condition was material. The Court upheld plaintiffs' breach of contract claims in SEPTA and in this case only because, after a careful reading, it was plausible that language on certain forms incorporated into the contract a webpage promising best execution. It is at least equally plausible that the best execution representation was not incorporated. What exactly was incorporated is the " imprecise contractual provision" [117] prompting " differences in interpretation growing out of a disputed legal question" [118] that courts have held cannot be the basis of liability under the federal FCA.[119]

Thus, even assuming that plaintiffs adequately have alleged that defendants knowingly failed to provide best execution contrary to their representations, they have not alleged that defendants knowingly failed to provide best execution contrary to their material contractual obligations. The difference is critical. In the former case, defendants may be liable for common law fraud and breach of fiduciary duty. They may even be liable under Section 12651(a)(1) if the fraud was part of a wrongful scheme to induce the government to pay on a claim. But only in the latter case would the defendants' submission of a claim constitute a wrongful implied certification.

None of plaintiffs' other purported breach of contract claims warrants a different conclusion. The netting provision theory suffers the same defect as best execution. The Court has rejected outright a breach of contract claim predicated on " competitive rates." Finally, the Court rejects plaintiffs' implied certification claim

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premised on defendants' alleged failure to act in their best interests. The extent to which defendants were obligated to do so is a disputed legal question, and plaintiffs have not alleged that defendants knew that their conduct violated their contractual obligations.

d. Fraudulent Underbidding

LACERA and LADWP contend that the custodial invoices were false on a theory of " fraudulent underbidding." [120]

In Hooper v. Lockheed Martin Corp .,[121] the Ninth Circuit recognized that a contractor can be liable under the federal FCA when it knowingly underestimates the potential cost of a project in order to win the business and then charges more for the work once completed. The initial underbid is deemed a false claim.

Plaintiffs here allege that BNY Mellon reduced its fees for custodial services to win the business, anticipating that it could make much more from plaintiffs through standing instruction FX trades.[122] Plaintiffs thus allege that the custodial invoices were false because " the [d]efendants' proposal d[id] not disclose the amount the Defendants intend to secretly earn from [plaintiffs]." [123]

The analogy to Hooper is not apt. A critical component of liability in Hooper was that the initial bid was supposed to reflect the contractor's good-faith estimate of the cost of the project. The contractor was liable because it knowingly understated this amount. But this case is more analogous to United States ex rel. Bettis v. Odebrecht Contractors of Cal., Inc .[124] There, the D.C. Circuit rejected an underbid theory because " [t]he disputed bid in this case did not purport to be an opinion or an estimate; rather, [the] bid was merely an offer to enter into a contract" at a certain price. A razor company may lower the price of its razor to sell high-priced blades. A smart phone maker may reduce the price of its phones and then charge for an expensive data plan. A company does not commit fraud merely by lowering its prices to develop customer relationships in anticipation of further business in the future.

C. Section 12651(a)(2)

Plaintiffs' Section 12651(a)(2) count also requires that they allege that defendants' submitted a false claim. As discussed above, plaintiffs have failed to do so.[125]

D. Section 12651(a)(4)

Section 12651(a)(4) renders liable one who " [h]as possession, custody, or control of public property or money used or to be used by the state or by any political subdivision and knowingly delivers or causes to be delivered less property than the amount for which the person receives a certificate or receipt ." [126] Defendants move to dismiss on the ground that plaintiffs have failed to allege any " certificate or receipt" within the meaning of the provision. Plaintiffs rejoin that when they paid the custodial invoices, they " submitted money

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to the Bank confirming the total amount of money to which the Bank was entitled. These payments were certificates and/or receipts to the Bank because they demonstrated the total amount of money owed to the Bank." [127]

Plaintiffs' argument borders on the nonsensical. The " certificate or receipt" quantified property in the " custody" of BNY Mellon in order to judge whether the amount of property returned by BNY Mellon to plaintiff was proper.[128] It plainly was not a quantification of what plaintiffs think BNY Mellon's fee should be.

E. Section 12651(a)(7)

As relevant here, Section 12651(a)(7) imposes liability on one who " [k]nowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or to any political subdivision." [129] In particular, plaintiffs allege that " [t]he Bank utilized fictitious FX pricing in their statements and reports to Plaintiff[s] in order to conceal an obligation to remit moneys due and owing to [Plaintiffs]." [130]

The Court assumes, contrary to defendants' contentions, that the term " obligation" encompasses defendants' alleged contractual obligation to provide best execution in this case.[131] Nevertheless, plaintiffs' allegations fall short. Plaintiffs must allege that defendants " knowingly" engaged in the conduct proscribed by Section 12651(a)(7). It is natural to read this provision as therefore requiring that defendants have known, or have been reckless in not knowing, that they had such a contractual obligation in the first place. As discussed in the context of implied certification, plaintiffs have not done so.[132]

IV. Fraud by Concealment

The allegations of LACERA and LADWP regarding their fraud by concealment counts could not be more general.[133] They allege that defendants failed to disclose " important facts" and disclosed " some facts" while failing to disclose " other important facts," making the disclosure deceptive.[134]

The Court recognizes that " Rule 9(b) does not require that the complaint explain the plaintiff's theory of the case, but only that it state the misrepresentation, omission or other action or inaction that plaintiff

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claims was fraudulent." [135] Nevertheless, it is not at all apparent what specific " facts" plaintiffs contend they should have been told or which disclosed facts made the failure to disclose other unstated facts deceptive. While plaintiffs enumerated specific representations and omissions in the context of the CFCA counts, their common law fraud counts are separate bases of liability. The Court and defendants are entitled to specific notice as to the facts underlying plaintiffs' common law claims. In any event, plaintiffs' claims fail for the same reasons as the CFCA fraud-in-the-inducement claims failed.

V. Section 17200

Defendants may be held liable under Section 17200 if their actions were unlawful, unfair, or fraudulent.[136] The complaints allege only that defendants' actions were unlawful for violating the CFCA. As plaintiffs have failed to allege such a violation, plaintiffs do not state a claim under this prong.[137] Similarly, plaintiffs fail to allege a claim under the fraudulent prong.[138]

Finally, plaintiffs contend that defendants' practices were unfair. As a number of courts have recognized, California law regarding what constitutes an " unfair" practice under this statute is in considerable disarray.[139] Plaintiffs concede that the " unfair" prong is " tethered to some legislatively declared policy" and assert that defendants' conduct violates the policy against committing fraud against the government.[140]

A practice need not violate another law to be deemed unfair.[141] Plaintiffs, however, provide no framework for this Court to assess whether defendants' conduct may have been unfair even if it fell short of being fraudulent. In light of the disposition of the rest of these motions, the Court concludes that it would not be an efficient use of judicial resources to determine whether defendants' practices could be deemed unfair if not unlawful or fraudulent. For now, it suffices to note that plaintiffs contend only that the practices were unfair because they were fraudulent, but they have failed to allege that the practices are fraudulent. The claim is dismissed.

VI. Claims Against BNY Mellon Corp.

Defendants move to dismiss claims against BNY Mellon Corp., contending

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that plaintiffs have not alleged that they had any relationship with BNY Mellon Corp., as opposed to its subsidiaries like BNY Mellon and BNY Mellon Trust Company. Plaintiffs respond only that every allegation in the complaint includes BNY Mellon Corp. as well as its subsidiaries and its affiliates. This is insufficient. Plaintiffs may not evade their obligation to plead specific claims against specific defendants by generalized pleading. All claims against BNY Mellon Corp. will be dismissed.

Conclusion

For the foregoing reasons, defendants' motions to dismiss [12 MD 2335 DI 167, 12 Civ. 8990 DI 4; 12 MD 2335 DI 213, 12 Civ. 3064 DI 108] are granted in all respects as to BNY Mellon Corp. and granted in all respects as to the other defendants save, with respect to the other defendants, that they are denied insofar as LACERA and LADWP assert the claims sustained in SEPTA --that is, claims for (1) breach of contract premised on defendants failure to provide " best execution," and (2) breach of fiduciary duty premised on certain alleged misrepresentations and nondisclosures. LACERA, LADWP, and relator may move for leave to amend provided that any such motion shall be filed no later than June 15, 2014

SO ORDERED.


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