City of Pontiac Policemen's & Firemen's Retirement System v. UBS AG

In this appeal we consider, as a matter of first impression, whether the bar on extraterritorial application of the United States securities laws, as set forth in Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), precludes claims arising out of foreign-issued securities purchased on foreign exchanges, but cross-listed on a domestic exchange (the so-called “listing theory”). We also consider whether the alleged misstatements at issue here are actionable under the securities laws.

We conclude that: (1) the Supreme Court’s decision in Morrison precludes claims brought pursuant to the Securities Exchange Act of 1934 (“Exchange Act”) by purchasers of shares of a foreign issuer on a foreign exchange, even if those shares were cross-listed on a United States exchange; (2) claims brought under the Securities Act of 1933 (“Securities Act”) based on disclosures made in connection with a UBS June 13, 2008 registered rights offering were properly dismissed because they are immaterial and/or inac-tionable “puffery,” as that term is defined in our case law; and (3) Exchange Act claims arising out of defendants’ statements regarding positions in, and valuation of, mortgage-related assets were properly dismissed for failure to adequately plead a material misrepresentation or scienter.

Accordingly, we affirm the September 13, 2011 and September 28, 2012 judgments of the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) dismissing all claims with prejudice.

BACKGROUND

Plaintiffs, a group of foreign and domestic institutional investors,1 bring this putative class action against UBS AG (“UBS”) and a number of UBS officers and directors (together with UBS, “UBS Defen*177dants”),2 alleging violations of §§ 10(b) and 20(a) of the Exchange Act3 in connection with the purchase of UBS “ordinary shares” between August 13, 2003 and February 23, 2009 (the “Class Period”). These shares were listed on foreign exchanges and the New York Stock Exchange (“NYSE”). Plaintiffs allege that the UBS Defendants violated the Exchange Act by making, in conjunction with issuance of the ordinary shares, fraudulent statements regarding: (1) UBS’s mortgage-related assets portfolio (the “CDO/RMBS Fraud”); and (2) UBS’s purported compliance with United States tax and securities laws by UBS’s Swiss-based global cross-border private banking business (the “Tax Fraud”).4

Plaintiff Alaska Laborers-Employers Retirement Fund (“Alaska Laborers”) also brings this action on behalf of a class that purchased ordinary shares of UBS in connection with the Company’s June 13, 2008 Rights Offering (the “Offering”), alleging that the UBS Defendants and a group of Underwriters5 violated §§ 11, 12(a)(2), and 15 of the Securities Act6 by making misleading statements regarding the alleged Tax Fraud in connection with the Offering.

A. The CDO/RMBS Fraud

Plaintiffs allege that UBS accumulated and overvalued $100 billion in residential mortgage backed securities (“RMBS”) and collateralized debt obligations (“CDOs” and, together with RMBS, “mortgage-related assets”)7 between February 13, 2006 and April 21, 2008, without disclosing this to shareholders and in contravention of its representations regarding its risk management policies.

The acquisition of the $100 billion portfolio began with the 2006 launch of Dillon Read Capital Management (“DRCM”), an internal hedge fund8 run by John Costas, *178the CEO of UBS’s Investment Bank (“IB”). According to plaintiffs, DRCM began acquiring billions of dollars’ worth of RMBS/CDOs, which added “pressure to grow IB Fixed Income.” Accordingly, the IB began acquiring the same types of assets on a larger scale. Following significant write-downs on DRCM’s subprime portfolio, UBS closed DRCM and reintegrated its $20 billion portfolio into the IB.

Plaintiffs allege that UBS concealed the scope of the IB’s subprime portfolio (disclosing $23 billion rather than $100 billion) and, as the subprime market began to collapse in February 2007, concealed the losses in that portfolio by failing to revalue the mortgage-related assets. Plaintiffs allege that UBS belatedly announced its first mortgage-related write-down of $4 billion on October 1, 2007, and ultimately wrote down the portfolio by $48 billion.

B. The Tax Fraud

Plaintiffs also allege that UBS made materially misleading statements regarding an alleged scheme in which UBS Swiss bankers traveled in and out of the United States to illegally advise American clients on the purchase of investments.9 Specifically, in May 2008, following the indictment of certain UBS employees in connection with the tax scheme, UBS made two disclosures, which revealed that the United States Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) were investigating UBS’s conduct with regard to the cross-border services it provided to American clients between 2001 and 2007.10

On February 19, 2009, UBS entered into a Deferred Prosecution Agreement11 with the DOJ and the Internal Revenue Service (“IRS”), which revealed that UBS had violated United States tax laws, and disclosed that UBS had paid a $780 million fine and admitted participation in a conspiracy to defraud the IRS.

C. Procedural History

On September 13, 2011, the District Court dismissed the claims of foreign and domestic plaintiffs who purchased the UBS shares on foreign exchanges.12 On September 28, 2012, the District Court dis*179missed all remaining claims against the UBS Defendants under the Exchange Act for failure to adequately plead the elements of fraud, and dismissed Alaska Laborers’ claims under the Securities Act for failure to adequately allege a material misstatement and for lack of statutory standing under § 12(a)(2) of the Securities Act.13

This timely appeal followed.

DISCUSSION

We review de novo a district court judgment granting a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations in the complaint as true.14 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”15 In making this determination, we may consider “any written instrument attached to [the Complaint] as an exhibit or any statements or documents incorporated in it by reference, as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.”16

A. Viability Under Morrison v. National Australia Bank of Claims Based on Foreign Shares Purchased on a Foreign Exchange

Three foreign institutional investors— plaintiffs Union, IFM, and ATP — and one domestic investor — plaintiff OPEB — purchased their UBS (foreign-issued) ordinary shares on a foreign exchange. The District Court, relying on the Supreme Court’s decision in Morrison v. National Australia Bank, dismissed these claims. We address the claims of the foreign and domestic plaintiffs separately.

1. “Foreign Cubed” Claims17

Morrison answered in the negative the question “whether [§ 10(b) ] provides a cause of action to foreign plaintiffs suing foreign [] defendants for misconduct in connection with securities traded on foreign exchanges.” 18 It held instead that § 10(b) only provided a private cause of action arising out of “[1] transactions in securities listed on domestic exchanges, and [2] domestic transactions in other securities.” 19

Plaintiffs argue that, by its express terms, the Morrison bar is limited to claims arising out of securities “[not] listed on a domestic exchange.”20 Under plaintiffs’ so-called “listing theory,”21 the fact *180that the relevant shares were cross-listed on the NYSE brings them within the purview of Rule 10(b), under the first prong of Morrison — “transactions in securities listed on domestic exchanges.” We conclude that, while this language, which appears in Morrison and its progeny, taken in isolation, supports plaintiffs’ view, the “listing theory” is irreconcilable with Morrison read as a whole.

Morrison emphasized that “the focus of the Exchange Act is ... upon purchases and sales of securities in the United States.”22 As the District Court recognized, this evinces a concern with “the location of the securities transaction and not the location of an exchange where the security may be dually listed.”23 Morrison’s emphasis on “transactions in securities listed on domestic exchanges,”24 makes clear that the focus of both prongs was domestic transactions of any kind, with the domestic listing acting as a proxy for a domestic transaction. Indeed, the Supreme Court explicitly rejected the notion that the “national public interest pertains to transactions conducted upon foreign exchanges and markets.”25 Furthermore, in Morrison, although the Ordinary Shares at issue were not traded on any domestic exchange, the Court noted that “[tjhere are listed on the [NYSE], however, [defendant’s American Depositary Receipts (ADRs), which represent the right to receive a specified number of [its] Ordinary Shares.”26 This did not affect the Court’s analysis of the shares that were purchased on foreign exchanges.

Perhaps most tellingly, in rejecting this Circuit’s “conduct and effects” test in favor of a bright-line rule, Morrison rejected our prior holding that “ ‘the Exchange Act [applies] to transactions regarding stocks traded in the United States which are effected outside the United States....’”27

*181In sum, Morrison does not support the application of § 10(b) of the Exchange Act to claims by a foreign purchaser of foreign-issued shares on a foreign exchange simply because those shares are also listed on a domestic exchange. Accordingly, we affirm the judgment of the District Court insofar as it dismissed the claims of Union, IFM, and ATP.

2. “Foreign Squared” Claims

Plaintiff OPEB is a U.S. entity that purchased some of its UBS shares on a foreign exchange by placing a so-called “buy order” in the United States, which was later executed on a Swiss exchange. In addition to advocating the “listing theory,” OPEB argues that its purchase satisfies the second prong of Morrison because it constitutes a “purchase ... of [a] security in the United States.”28

In our decision in Absolute Activist Value Master Fund Ltd. v. Ficeto (“Absolute Activist ”) we explained that “ ‘[a] securities transaction is domestic [for purposes of Morrison’s second prong] when the parties incur irrevocable liability to carry out the transaction within the United States or when title is passed within the United States.’ ”29 We must now decide— as an issue of first impression — whether the mere placement of a buy order in the United States for the purchase of foreign securities on a foreign exchange is sufficient to allege that a purchaser incurred irrevocable liability in the United States, such that the U.S. securities laws govern the purchase of those securities. We conclude that it is not.

Plaintiffs argue that “[w]hen a purchaser is a U.S. entity, ‘irrevocable liability’ is not incurred when the security is purchased on a foreign exchange^ rather it is incurred] in the U.S. where the buy order is placed.”30 As an initial matter, we have made clear that “a purchaser’s citizenship or residency does not affect where a transaction occurs.”31 Accordingly, the fact that OPEB was a U.S. entity, does not affect whether the transaction was foreign or domestic.32 Nor does the allegation that OPEB placed a buy order in the United States that was then executed on a foreign exchange, standing alone, establish that OPEB incurred irrevocable liability in the United States.33

*182Accordingly, we affirm the judgment of the District Court dismissing the claims of OPEB, a domestic purchaser, insofar as its claims were based on purchases of foreign shares on foreign exchanges.34

B. Securities Act Claims

Alaska Laborers alleges that the offering materials35 distributed in connection with the June 13, 2008 Offering were materially false inasmuch as they stated that UBS held its employees to the highest ethical standards and complied with all applicable laws, and that UBS’s wealth management division did not provide services to clients in the United States when, in fact, UBS was engaged in the cross-border tax scheme.36 Plaintiffs allege further that the offering materials were materially incomplete inasmuch as they disclosed the DOJ investigation but concealed that the cross-border activities under investigation were ongoing, and concealed the magnitude of UBS’s exposure to liability and reputational damage.

The District Court dismissed Alaska Laborers’ claims under §§ 11 and 12(a)(2) of the Securities Act for, among other reasons, failure to allege material misrepresentations.37 Section 11 establishes liability on the part of issuers of registration statements if

any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.38

Plaintiffs need not allege scienter, reliance, or causation.39 The standard is the same for claims pursuant to § 12(a)(2), which *183covers prospectuses and oral communications.40

In assessing § 11 claims, we “conduct a preliminary inquiry into whether plaintiffs’ allegations are premised on fraud,” or merely on negligence, to determine the appropriate pleading standard.41 Where, as here, the claims sound in fraud — indeed, they are identical to plaintiffs’ tax fraud claims under § 10(b) — the heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies, requiring that the circumstances of the alleged fraud be set forth in the complaint with particularity.42

First, plaintiffs allege that UBS’s involvement in the Tax Fraud rendered UBS’s statements in the offering materials about compliance, reputation, and integrity materially misleading. It is well-established that general statements about reputation, integrity, and compliance with ethical norms are inactionable “puffery,” meaning that they are “too general to cause a reasonable investor to rely upon them.”43 This is particularly true where, as here, the statements are explicitly aspirational, with qualifiers such as “aims to,” “wants to,” and “should.” Plaintiffs’ claim that these statements were knowingly and verifiably false when made does not cure their generality, which is what prevents them from rising to the level of materiality required to form the basis for assessing a potential investment.44

Second, plaintiffs argue that defendants’ failure to disclose the tax scheme violated Regulation S-K, Item 503(c), which requires registrants to include in offering materials “a discussion of the most significant factors that make the offering specu*184lative or risky,”45 and rendered materially incomplete those disclosures UBS made concerning the DOJ investigation.

The offering materials disclosed that the DOJ was investigating whether, from 2000-2007, UBS client advisors entered the United States to help U.S. clients evade their tax obligations, in violation of U.S. law. Plaintiffs argue, in effect, that, in addition to disclosing the existence of an investigation, defendants were required to disclose that UBS was, in fact, engaged in an ongoing tax evasion scheme.

As we have explained, “[disclosure is not a rite of confession,”46 and companies do not have a duty “to disclose uncharged, unadjudicated wrongdoing.”47 By disclosing its involvement in multiple legal proceedings and government investigations and indicating that its involvement could expose UBS “to substantial monetary damages and legal defense costs,” as well as “injunctive relief, criminal and civil penalties[,] and the potential for regulatory restrictions,” UBS complied with its disclosure obligations under our case law.

In sum, plaintiffs have not pleaded any misstatements in the Offering that give rise to a cause of action under the Securities Act. Accordingly, we affirm the judgment of the District Court dismissing the claims of Alaska Laborers under §§ 11 and 12(a)(2) of the Securities Act.

C. Claims Under Section 10(b) of the Exchange Act

The District Court dismissed plaintiffs’ § 10(b) claims for failure to plead materiality or scienter with respect to the CDO/ RMBS Fraud, and failure to plead materiality as to the Tax Fraud.

A complaint alleging securities fraud under § 10(b) of the Exchange Act must satisfy the heightened pleading requirements of Rule 9(b) and the Private Securities Litigation Reform Act of 1995 (the “PSLRA”).48 These well-known standards require, in relevant part, that “securities fraud complaints specify each misleading statement ... [and] state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.”49

Scienter may be established by facts “(1) showing that the defendants had both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness.”50 We have defined recklessness as a state of mind “approximating actual intent,” which can be established by “conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.”51 *185The requisite “strong inference” of scien-ter is one which is “at least as likely as any plausible opposing inference.”52

1. CDO/RMBS Fraud Claims

Plaintiffs plead two categories of misstatements comprising the alleged CDO/ RMBS fraud: (1) statements that UBS avoided “asset concentrations” as a “key pillar” of its risk management strategy; and (2) statements regarding UBS’s valuation of its mortgage-related assets. We address each in turn.53

a. Avoidance of undue concentrations of risk

Plaintiffs allege that the UBS Defendants represented that “UBS, inter alia: (1) avoided ‘concentrated positions’ of assets; (2) implemented asset portfolio limits, and (3) engaged in limited ‘proprietary’ investing.... ” at a time when they “knew of and had access to information concerning the $100 billion RMBS/CDO portfolio” and knew “that UBS had no portfolio limits.” Plaintiffs aver that these facts support the inference that defendants “knew, or recklessly disregarded, that their representations to investors were materially false and misleading.”54 We disagree.

As a preliminary matter, plaintiffs do not plausibly allege that UBS’s representations regarding asset concentrations were materially misleading. Plaintiffs contend that these statements are material “[because [UBS] represented that the avoidance of asset concentrations was vital to [its] business and success.” But while importance is undoubtedly a necessary element of materiality,55 importance and materiality are not synonymous.56 To be “material” within the meaning of § 10(b), the alleged misstatement must be sufficiently specific for an investor to reasonably rely on that statement as a guarantee of some concrete fact or outcome which, when it proves false or does not occur, forms the basis for a § 10(b) fraud claim.57

*186UBS’s representations that it prioritized “adequate diversification of risk” and “avoidance of undue concentrations,” are too open-ended and subjective to constitute a guarantee that UBS would not accumulate a $100 billion RMBS portfolio, comprising 5% of UBS’s overall portfolio, or 16% of its trading portfolio.58 Plaintiffs do not allege that UBS represented that it had specific risk limits59 on its acquisition of mortgage-related securities, that the $100 billion portfolio contravened.60

Moreover, UBS did disclose that it was “seeking to expand [its] fixed income business further by pursuing opportunities in ... asset-backed securities,” and disclosed, for example, increases in the portfolio of as much as 69 billion Swiss francs (“CHF”)61 in 2006. As the District Court recognized, these specific disclosures by UBS about its accumulation of mortgage-related securities undercut the inference that defendants knew or recklessly disregarded that their accumulation of the RMBS portfolio was inconsistent with their representations about risk management, much less that they intended to conceal or recklessly concealed that accumulation.62

In sum, plaintiffs have not plausibly alleged that UBS’s representations regarding asset concentrations and risk diversification were materially misleading or that defendants were consciously reckless in making such representations in light of their accumulation of asset-backed securities.

b. Valuation of and disclosures regarding UBS’s mortgage-related assets

The second category of alleged misrepresentations relates to UBS’s statements regarding its valuation of its mortgage-related assets. UBS represented that it employed “mark-to-market accounting,” meaning that it valued its mortgage-relat*187ed assets based on the price at which similar assets were trading in the market, ie., “observable market prices.”63

The crux of plaintiffs’ argument is that the sale by UBS of certain assets held by its internal hedge fund, DRCM, reflected the need to reduce the stated market value of, or “write down,” that class of assets, and that this should have raised “red flags” that the IB’s “similar securities” might be at risk. Instead, plaintiffs allege, UBS “disregarded ... observable market inputs and red flags demonstrating that [its] mortgage-related asset portfolio was materially impaired.” The District Court found deficient plaintiffs’ allegations that the UBS defendants were “reckless” in ignoring these purported red flags. We agree.

As we have explained, to qualify as “reckless conduct” within the meaning of our securities laws, “the decision not to [write down the IB’s mortgage-related securities portfolio] must have been highly unreasonable, representing an extreme departure from the standards of ordinary care.”64 In essence, plaintiffs allege that defendants should have predicted the impairment of the highly-rated {ie., AAA-rated) assets held by the IB, which were collateralized by lower-rated assets, based on their knowledge of the write-downs in certain lower-grade (BBB-to B-rated), higher risk, mortgage-related assets held by DRCM.65

Assuming arguendo that plaintiffs are correct about what defendants should have been doing, this does not create a strong inference that the UBS defendants were reckless in failing to write down the IB’s assets, in light of what it knew about DRCM’s assets and the subprime market generally. The central premise of these securitized structures was that highly-rated tranches would withstand the devaluation of lower-rated tranches.66 Indeed, the higher-rated assets held by the IB continued to trade at par value through mid-2007. See 2012 Op. at *16-17.

Plaintiffs have alleged that there was uncertainty and disagreement, within UBS and in the market at large, about the valuation and risk exposure of mortgage-related assets. See, e.g., Joint App’x 101 (an April 2007 UBS internal investigation concluded that “valuation uncertainties in [the] IB ... were not sufficiently transparent and inherent risks not adequately analyzed”). However, the Complaint fails to create a strong inference that the UBS defendants recklessly disregarded known facts contradicting their public valuation of their highly-rated RMBS/CDO assets, or that their behavior represented an extreme departure from the ordinary standards of care.

While the collapse in the entire sub-prime market revealed UBS’s failure to recognize the vulnerability of all its mortgage-related assets to have been poor *188judgment, poor business judgment — even if attributable to monetary incentives— does not establish an inference of recklessness that is “cogent and compelling [and] thus strong in light of other explanations.” 67We do not recognize allegations of “fraud by hindsight.”68

2. Tax Fraud Claims

We have held that the definition of “materiality” under § 11 of the Securities Act is the same as under § 10(b) of the Exchange Act.69 Accordingly, we affirm dismissal of the § 10(b) claims based on tax fraud for the reasons stated in Discussion Part B, ante.

D. Denial of Leave to Amend

Plaintiffs contend, finally, that the District Court erred in dismissing their Amended Complaint with prejudice because they have not yet amended directly in response to specifically identified pleading defects. We review a district court’s denial of leave to amend for abuse of discretion, unless the denial was based on futility, in which case we review that legal conclusion de novo.70

Plaintiffs have already had one opportunity to amend their complaint. Although that amendment was not in response to a motion to dismiss identifying particular deficiencies in the pleadings, it is unlikely that the deficiencies raised with respect to the Amended Complaint were unforeseen by plaintiffs when they amended. Moreover, plaintiffs have identified no additional facts or legal theories — either on appeal or to the District Court — they might assert if given leave to amend.71 We conclude that, in the circumstances presented, the District Court did not err in denying leave to amend.

CONCLUSION

To summarize, we hold that:

(1) Morrison precludes foreign plaintiffs’ claims under § 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) arising out of the purchase of foreign-issued securities on a foreign exchange, even where the securities are cross-listed on a domestic U.S. exchange.

(2) The fact that a U.S. entity places a buy order in the United States for the purchase of foreign securities on a foreign exchange is insufficient to *189incur irrevocable liability, as set forth in Absolute Activist, in the United States.

(3) Plaintiffs’ claims under §§ 11 and 12(a) of the Securities Act of 1933 were properly dismissed for failure to plead an actionable misstatement.

(4) Plaintiffs’ claims under § 10(b) of the Exchange Act based on the alleged Tax Fraud were properly dismissed for failure to plead an actionable misstatement.

(5) Plaintiffs’ § 10(b) claims based on the alleged CDO/RMBS Fraud were properly dismissed for failure to plead materiality or a strong inference of scienter.

(6) The District Court did not err in denying plaintiffs leave to amend a second time.

Accordingly, we AFFIRM the September 13, 2011 and September 28, 2012 judgments of the District Court.