Furlong Fund LLC v. VBI Vaccines, Inc. et al
Filing
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OPINION & ORDER re: 28 MOTION to Dismiss Second Amended Class Action Complaint filed by VBI Vaccines, Inc. Defendants' motions to dismiss the Second Amended Complaint are granted with prejudice on the grounds that that adequately plead any actionable misleading statement or omission. SO ORDERED. (Signed by Judge Sidney H. Stein on 3/25/2016) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FURLONG FUND LLC on behalf of itself
and all others similarly situated,
Plaintiff,
‐against‐
VBI VACCINES, INC. formerly known as
Paulson Capital (Delaware) Corp. formerly
known as Paulson Capital Corp., CHESTER
L.F. PAULSON, CHARLES L.F. PAULSON,
PAUL F. SHOEN, DR. SHANNON PRATT,
and TRENT DAVIS,
14‐Cv‐9435 (SHS)
OPINION & ORDER
Defendants.
SIDNEY H. STEIN, U.S. District Judge.
This securities class action seeks to recover alleged losses from a
liquidating trust established by Paulson Capital Corp. (“PCC”), now
known as VBI Vaccines, Inc. (“VBI”). Plaintiff Furlong Fund LLC asserts,
on behalf of itself and similarly situated PCC shareholders who held
beneficial interests in the trust, that PCC and its directors – individual
defendants Chester L.F. Paulson, Charles L.F. Paulson, Paul F. Shoen, and
Dr. Shannon Pratt – solicited shareholder approval for the trust by
negligently misrepresenting and omitting information regarding the value
of the trust in an October 18, 2013 proxy statement, in violation of Section
14(a), Rule 14a‐9, and Section 20(a) of the Securities Exchange Act of 1934
(“Exchange Act”). 15 U.S.C. §§ 78n, 78t; 17 C.F.R. § 240.14a‐9.
After this action was filed in November 2014, VBI moved to dismiss
the complaint on the grounds, inter alia, that Furlong had failed to allege
that VBI had acted negligently with the requisite particularity. Furlong
then filed an amended complaint in February 2015. The next month, after
the Court appointed lead counsel, Furlong filed a Second Amended
Complaint, alleging essentially the same violations of law.
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VBI and the individual defendants have now moved to dismiss all
claims against them with prejudice pursuant to Federal Rule of Civil
Procedure 12(b)(6) and the Private Securities Litigation Reform Act
(“PSLRA”), 15 U.S.C. § 78u‐4. Because plaintiff has failed to plead any
false or misleading statement or omission with the particularity required
by the PSLRA and case law, the Court grants defendants’ motions and
dismisses the Second Amended Complaint with prejudice.
I.
BACKGROUND
According to the complaint, PCC was a publicly traded financial
services holding company that operated through its sole subsidiary, a
boutique investment bank and brokerage firm called Paulson Investment
Company (“PIC”). (Second Amended Complaint (“SAC”) ¶¶ 3, 33.) On
October 18, 2013, PCC filed a proxy statement soliciting votes from its
shareholders to approve a series of proposals, including Proposal 6, which
involved the formation of a liquidating trust in connection with a
proposed restructuring transaction. (SAC ¶ 5; Proxy Statement at 21–26,
Ex. E to Decl. of David B. Gordon dated May 8, 2015). Proceeds from the
liquidation of the trust’s assets would be distributed as dividends to
shareholders of PCC stock as of the record date, October 11, 2013 (“Legacy
Shareholders”), including Furlong. (SAC ¶¶ 6–7.) At the time, PCC’s
officers and directors allegedly controlled 33.5% of PCC’s outstanding
common stock and therefore the approval of the Legacy Shareholders was
required in order for PCC to establish the trust and effectuate the
restructuring. (SAC ¶¶ 6, 39–40.) On November 8, 2013 a majority of PCC
shareholders in fact voted in favor of Proposal 6, allegedly because of
representations in the Proxy Statement that Furlong claims were both
misleading and material. (SAC ¶¶ 8, 42, 60.)
On July 27, 2014, PCC announced that its merger with VBI had closed.
(SAC ¶ 49.) At the time of the merger, defendants allegedly created the
trust with assets “valued at approximately $9.8 million.” (SAC ¶¶ 13, 50.)
Plaintiff claims that the Proxy Statement contained three specific “material
misleading statements” that “coerced” the Legacy Shareholders to
approve the restructuring: namely, that the Proxy Statement (1)
“misrepresent[ed] the fact that 25% of PIC would be contributed to the
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Liquidating Trust”; (2) “misrepresent[ed] the fact that the Trust Assets
would be irrevocably placed in trust”; and (3) “fail[ed] to disclose that
[PCC] was going to delay the creation of the Trust until almost one (1) year
later.” (SAC ¶¶ 15, 55). The 25% interest in PIC allegedly “appears to have
vanished” from the trust. (SAC ¶¶ 16, 51.) Assets that were represented
to be “irrevocably placed in Trust” were purportedly used instead to
indemnify PCC’s merger partner, VBI, (SAC ¶¶ 16, 48), and defendants’
purported delay in forming the trust significantly reduced, allegedly, the
amount of cash contributed to the trust (SAC ¶¶ 14, 51).
The complaint also alleges that on November 21, 2013 – a day after
NASDAQ halted all trading in PCC stock – PCC received a letter from
NASDAQ stating that PCC failed to notify NASDAQ of the proposed trust
distributions ten days prior to the October 11, 2013 record date in violation
of NASDAQ Listing Rule 5250(e)(6). (SAC ¶ 43.) After receiving the letter,
the Board allegedly failed to act and continued to violate the NASDAQ
listing rules. (SAC ¶ 12.) On February 19, 2014, NASDAQ distributed a
public reprimand letter to PCC stating that PCC “ha[d] been remiss in
failing to provide timely notifications in accordance with NASDAQ Listing
Rule 5250(e)(6) and SEC Rule 10b‐17, to ensure clear and complete
disclosure with respect to shareholder rights to the Paulson Liquidating
Trust and non‐trust assets, and regarding plans for [PIC].” (SAC ¶¶ 12,
45.)
Furlong claims, on behalf of itself and a proposed class of
shareholders holding PCC stock as of October 11, 2013, that defendants
violated Section 14(a) and SEC Rule 14a‐9 by soliciting votes from Furlong
and other class members through a proxy statement containing negligently
misleading misrepresentations and omissions of material fact. (SAC ¶¶
31, 58.) The complaint further alleges that the individual defendants are
liable for violating Section 14(a) as control persons pursuant to Section
20(a) of the Exchange Act. (SAC ¶¶ 67, 70.) In March 2015, the Court
granted Furlong’s unopposed motion to be the lead plaintiff to represent
the interests of the putative class. The Court also appointed Andrews &
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Springer LLC as lead counsel for the class. The individual defendants1 and
VBI itself have now both moved to dismiss the Second Amended
Complaint for failing to state claims upon which relief can be granted.
II. DISCUSSION
A. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the complaint must
“state a claim to relief that is plausible on its face.” Emps.’ Ret. Sys. of V. I.
v. Blanford, 794 F.3d 297, 304 (2d Cir. 2015) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). At this stage, “we accept only [the complaint’s]
factual allegations, and the reasonable inferences that can be drawn
therefrom, as true.” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014).
Nevertheless, the Court “may consider any written instrument attached to
the complaint, statements or documents incorporated into the complaint
by reference, legally required public disclosure documents filed with the
SEC, and documents possessed by or known to the plaintiff and upon
which it relied in bringing the suit.” ATSI Commcʹns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). If the complaint’s allegations “conflict
with the plain language of the publicly filed disclosure documents, the
disclosure documents control, and the court need not accept the
allegations as true.” Sedighim v. Donaldson, Lufkin & Jenrette, Inc., 167 F.
Supp. 2d 639, 646–47 (S.D.N.Y. 2001); see also Kleinman v. Elan Corp., PLC,
706 F.3d 145, 153 (2d Cir. 2013) (finding no actionable misstatement given
language in disclosure document). “But the court may not choose among
plausible interpretations of the disclosure documents—if a trier of fact
could agree with plaintiff[‘s] interpretation of the relevant language, the
motion to dismiss must be denied.” Sedighim, 167 F. Supp. 2d at 647.
The SAC contains two claims for relief: (1) a Section 14(a) claim
against all defendants for soliciting proxies from the members of the
putative class by means of a proxy statement that “through Defendants’
negligence contained statements which, at the time and in light of the
In June 2015, the parties stipulated to the dismissal of Trent Davis as an
individual defendant.
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circumstances under which they were made, were false and misleading
with respect to material facts, and omitted to state material facts necessary
in order to make the statements therein not false or misleading” (SAC ¶
58) and (2) a Section 20(a) claim against the individual defendants on the
grounds that they are liable under Section 20(a) because they had the
ability to control those who violated Section 14(a) (SAC ¶¶ 67–71). The
Court turns to each claim in turn.
B. Section 14(a) Claim
Section 14(a) of the Exchange Act states that “[i]t shall be unlawful for
any person . . . in contravention of such rules and regulations as the
Commission may prescribe . . . to solicit or to permit the use of his name to
solicit any proxy or consent or authorization in respect of any security.” 15
U.S.C. § 78n(a)(1). Rule 14a‐9 prohibits any solicitation “made by means of
any proxy statement . . . containing any statement which, at the time and
in the light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or which omits to state any
material fact necessary in order to make the statements therein not false or
misleading.” 17 C.F.R. § 240.14a‐9(a).
To state a claim under Section 14(a) and Rule 14a‐9, plaintiffs must
show that “(1) the proxy statement contained a material misstatement or
omission, which (2) caused plaintiffʹs injury, and (3) that the proxy
solicitation itself, rather than the particular defect in the solicitation
materials, was an essential link in the accomplishment of the transaction.”
In re JP Morgan Chase Sec. Litig., 363 F. Supp. 2d 595, 636 (S.D.N.Y. 2005)
(citing Bond Opportunity Fund v. Unilab Corp., No. 99‐cv‐11074, 2003 WL
21058251, at *3 (S.D.N.Y. May 9, 2003), aff’d, 87 F. App’x 772 (2d Cir. 2004)).
The complaint must also allege “that defendants acted at least with
negligence in making the misrepresentation or omission.” In re JP Morgan
Chase, 363 F. Supp. 2d at 636.
The PSLRA plainly states that in any private action based on the
Exchange Act in which the plaintiff alleges a materially misleading
statement or omission – as is the case here – the complaint must “specify
each statement alleged to have been misleading, the reason or reasons why
the statement is misleading, and, if an allegation regarding the statement
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or omission is made on information and belief, the complaint shall state
with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u‐
4(b)(1). The PSLRA’s pleading requirements as to misleading statements
and omissions apply to Section 14(a) claims sounding in negligence, such
as those here. See In re Bank of Am. Corp. Sec., Derivative, & ERISA Litig.,
757 F. Supp. 2d 260, 286 (S.D.N.Y. 2010); In re JP Morgan Chase, 363 F. Supp.
2d at 636; Bond Opportunity, 2003 WL 21058251, at *5. Even where a
Section 14(a) claim sounds in negligence, plaintiffs “would still have had
to plead facts indicating why the alleged misrepresentations were
misleading.” In re JP Morgan Chase, 363 F. Supp. 2d at 636; see 15 U.S.C. §
78u‐4(b)(1).
When tested against the PSLRA pleading requirements, the Second
Amended Complaint fails to plead properly any misleading statements or
omissions. The “central issue is not whether the particular statements,
taken separately, were literally true, but whether defendantsʹ
representations, taken together and in context, would have misled a
reasonable investor about the nature of the securities.” Olkey v. Hyperion
1999 Term Trust, Inc., 98 F.3d 2, 5 (2d Cir. 1996) (alterations and quotations
omitted). Plaintiff’s alleged misrepresentations “taken together and in
[the] context” of the Proxy Statement would not have misled a reasonable
investor. Id.
1.
Furlong has failed to plead any misrepresentation that “25%
of PIC would be contributed to the Liquidating Trust”
Furlong alleges that defendants made misrepresentations that a 25%
interest in PIC would be contributed to the trust. Plaintiff fails to identify
any such statement for the simple reason that the Proxy Statement
contained no such affirmative representation. The covering letter to the
Proxy Statement stated that “[t]he trust will hold the majority of the assets
currently held by [PIC], primarily consisting of underwriter warrants,
trading and investment securities, and cash and accounts receivables.”
(SAC ¶ 35; Covering Letter to Proxy Statement, Ex. E to Gordon Decl.) The
Proxy Statement represented that,
[a]s part of the restructuring, it is contemplated that the broker‐
dealer operations will be initially owned 25% by [PCC] and 75% by
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management of PIC and outside investors, the 25% retained
interest is expected to be sold and the proceeds added to the Trust.
The Financing is intended to be the first step in a process of
redirecting [PCC]’s focus to a business model that [PCC] believes
will generate better returns for shareholders.
(SAC ¶ 36; Proxy Statement at 25, Ex. E to Gordon Decl.) Contrary to
plaintiff’s allegation (see SAC ¶ 41), a reasonable investor could not
plausibly consider the “contempl[ation]” and “expect[ation]” set forth in
the Proxy Statement as a guarantee that the 25% interest in PIC would be
added to the trust.
In the analogous Section 10(b) and Rule 10b‐5 context, “[s]tatements
regarding projections of future performance may be actionable . . . if they
are worded as guarantees or are supported by specific statements of
fact . . . or if the speaker does not genuinely or reasonably believe them.”
In re IBM Corp. Sec. Litig., 163 F.3d 102, 107 (2d Cir. 1998) (citing Raab v.
Gen. Physics Corp., 4 F.3d 286, 290 (4th Cir. 1993)). By contrast, statements
expressing optimism about future events – including merger completions
– have been found to lack the factual support necessary to render the
statements guarantees. See In re Sanofi‐Aventis Sec. Litig., 774 F. Supp. 2d
549, 565–66 (S.D.N.Y. 2011) (“[W]e are still planning and we continue to
plan for a launch also in the U.S. in the second half of 2006.”); Faulkner v.
Verizon Commc’ns, Inc., 156 F. Supp. 2d 384, 388, 397–98 (S.D.N.Y. 2001)
(merger “expected to . . . close by mid–2001”). PCC’s statement that it
“contemplated . . . initially own[ing] 25% of PIC” and “expected” to
contribute that interest to the trust cannot plausibly be interpreted as a
guarantee and lacks the necessary supporting statements of fact.
Even if the Proxy Statement had affirmatively represented that the
trust was to receive a 25% interest in PIC, the complaint fails to allege facts
supporting plaintiff’s position that the representation was false or
misleading at the time it was made. The Proxy Statement disclosed that
“[t]he Trust Assets will vary substantially, depending on factors such as
economic and market conditions.” (Proxy Statement at 25, Ex. E to
Gordon Decl.). There are no allegations that defendants did not intend to
place the 25% interest in PIC in the trust at the time of the Proxy
Statement. In addition, a claim by plaintiff that the 25% interest in PIC
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was “completely extinguished” (SAC ¶ 51) and never received by the trust
is not supported by any fact and implausible because the complaint
incorporates a trust document listing as part of the trust’s initial assets an
“Investment in PIC” of $500,000. (Compare SAC ¶ 16 (“The 25% interest in
PIC . . . appears to have vanished”), ¶ 51 (the “25% interest in PIC appears
to have been completely extinguished”) with Attach. B to Trust Agreement,
Ex. C to SAC (listing 500,000 investment in the trust from PIC)).
2.
Furlong has failed to plead any misrepresentation that “the
Trust Assets would be irrevocably placed in trust”
The complaint falls short of pleading any misrepresentation that
certain assets would be irrevocably placed in trust. The Proxy Statement
stated
[b]ecause the Trust Assets were irrevocably placed in trust at a time
when [PCC] could have distributed them as dividends to the
Legacy Shareholders under state law, we believe . . . that the
ultimate distribution of the sale proceeds to the Legacy
Shareholders should not be restricted if [PCC] would not be
permitted to pay a dividend at that time due to state law
limitations.
(Proxy Statement at 26, Ex. E to Gordon Decl.; SAC ¶¶ 5, 37.) When read
in complete isolation, the phrase “were irrevocably placed in trust” might,
as plaintiff alleges here, lead a Legacy Shareholder to infer that certain
trust assets had already been “irrevocably” set aside on October 18, 2013,
the date of the Proxy Statement, for eventual contribution to the trust. (See
SAC ¶ 16.)
But such a conclusion would be implausible when reading the Proxy
Statement as a whole. The statement was contained in a paragraph
concerning state law issues ending a section that began: “. . . our Board of
Directors has approved a plan whereby prior to the release of the escrow,
an irrevocable liquidating trust (the “Trust”) will be created and the
[Legacy Shareholders] will be given non‐transferable beneficial interests in
the Trust . . . .” (Proxy Statement at 25, Ex. E to Gordon Decl.; SAC ¶ 36.)
The Proxy Statement repeatedly referred to the future creation of the
proposed trust, using verbs in the future tense and phrases such as “[o]nce
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the Trust Assets are transferred to the Trust,” (Proxy Statement at 25, Ex. E
to Gordon Decl.). In addition, the covering letter to the Proxy Statement
states clearly that “a liquidating trust will be created.” (Covering Letter to
Proxy Statement, Ex. E to Gordon Decl., emphasis added.) As noted
above, the “Trust Assets” were disclosed to be “the majority of [PIC’s]
assets (or the proceeds derived therefrom), currently consisting primarily
of underwriter warrants, trading and investment securities, an insurance
policy on the life of the founder of [PCC], and cash and accounts
receivables.” (Proxy Statement at 25, Ex. E to Gordon Decl.) At most, the
Proxy Statement represented that an inchoate majority of PIC’s assets
would be placed in the trust (SAC ¶ 35), and, even as alleged by the
complaint, the trust received exactly that (SAC ¶ 50). No reasonable
shareholder could have plausibly inferred from the Proxy Statement that
specific assets had already been irrevocably designated to constitute the
“majority of [PIC’s] assets” prior to the formation of the trust.
The allegation that Legacy Shareholders were misled because assets
that should have been “irrevocably placed in trust” were instead used to
indemnify VBI, PCC’s merger partner, is similarly implausible. (SAC ¶¶
16, 48.) The Proxy Statement made a pellucid disclosure that
indemnification obligations, if any, were to be paid out of indemnification
coverage paid for in turn by trust assets. It clearly disclosed that “PIC
shall pay or set aside a sufficient portion of the Trust Assets or pay directly
from the Liquidating Trust” to secure indemnification coverage. (Proxy
Statement at 26, Ex. E to Gordon Decl.)
3.
Furlong has not pled any actionable failure “to disclose that
[PCC] was going to delay the creation of the Trust until
almost one (1) year later”
The complaint also pleads, to no avail, that defendants had a duty to
disclose the alleged nine‐month delay in forming the trust after the
shareholder vote. An omission violates Rule 14a‐9 “if either the SEC
regulations specifically require disclosure of the omitted information in a
proxy statement, or the omission makes other statements in the proxy
statement materially false or misleading.” Resnik v. Swartz, 303 F.3d 147,
151 (2d Cir. 2002). Plaintiff has neglected to identify any SEC regulation
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imposing a duty on defendants to disclose the alleged delay. As
important, the complaint does not identify any representation in the Proxy
Statement rendered false or misleading by this omission, nor does the SAC
contain any allegation that defendants planned at the time the Proxy
Statement was issued to delay the formation of the trust. NASDAQ’s
letters, which reprimanded PCC for violating NASDAQ listing rules and
SEC Rule 10b‐17, are also irrelevant to whether defendants omitted
material facts in the Proxy Statement.
Furlong counters that defendants had a duty to be both accurate and
complete once they spoke about contributing assets to the trust. However,
the complaint does not identify a single representation or any
particularized facts that would have led a reasonable shareholder to
conclude that the trust would be formed immediately. Indeed, the Proxy
Statement stated that rather than knowing exactly what PCC would do in
the future, the Board of Directors had “not yet identified the specific
direction [PCC] will take” and that “[t]he proposals to be voted upon, in
particular Proposal 4, 5, and 6, are designed to provide [PCC] with
flexibility for future corporate action, including . . . possible acquisitions of
or mergers with other companies in various industries.” (Proxy Statement
at 25, Ex. E to Gordon Decl.) Furlong has not cited any case law
supporting the broad proposition that a proxy statement must disclose the
timing of future trust formations, or that it was unreasonable for a trust
proposed in connection with a business restructuring to be formed nine
months after a Proxy Statement, particularly in the absence of any
allegation that, at the time of the alleged omission, defendants knew the
trust’s formation would not be immediate.
Having concluded that Furlong has failed to sufficiently allege the
falsity or misleading nature of any statement or omission by defendants,
the Court need not address defendants’ additional arguments as to why
the SAC fails to state a Section 14(a) claim.
C. Section 20(a) Claim
The complaint alleges that the individual defendants are liable for the
misrepresentations in the Proxy Statement because they are control
persons within the intendment of Section 20(a) of the Exchange Act.
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Section 20(a) imposes joint and several liability on “[e]very person who,
directly or indirectly, controls any person liable under any provision of
this chapter or of any rule or regulation thereunder.” 15 U.S.C. § 78t(a).
To plead a Section 20(a) claim, a plaintiff must show “(1) a primary
violation by the controlled person, (2) control of the primary violator by
the defendant, and (3) that the defendant was, in some meaningful sense, a
culpable participant in the controlled person’s fraud.” ATSI Commc’ns, 493
F.3d at 108. Thus, the claim against the individual defendants “is
necessarily predicated on a primary violation of securities law.” Rombach
v. Chang, 355 F.3d 164, 177–78 (2d Cir. 2004); see SEC v. First Jersey Sec., Inc.,
101 F.3d 1450, 1472–73 (2d Cir. 1996); Shields v. Citytrust Bancorp., Inc., 25
F.3d 1124, 1132 (2d Cir. 1994). Having failed to plead a primary violation
of securities law in its Section 14(a) claim, there is no basis for control
person liability, and the Second Amended Complaint therefore fails to
state a Section 20(a) claim against the individual defendants.
Even had a viable claim under Rule 14a‐9 been pled, plaintiff has not
sufficiently pled a Section 20(a) claim. The SAC lumps the individual
defendants together and states that
[b]y virtue of their positions as officers and/or directors of PCC, and
participation in and/or awareness of [PCC]’s operations and/or
intimate knowledge of the false statements contained in the [Proxy
Statement], they had the power to influence and control and did
influence and control . . . the decision making of [PCC], including
the content and dissemination of the [false and misleading]
statements and omissions.
(SAC ¶ 67.)
Plaintiff has utterly failed to identify the role of each individual
defendant in PCC or the Proxy Statement. The simple allegation that each
was an officer or director of PCC is an insufficient allegation of control or
of culpable participation in the alleged Section 14(a) violation. See First
Jersey, 101 F.3d at 1472–73; Bond Opportunity, 2003 WL 21058251, at *11; In
re Deutsche Telekom AG Sec. Litig., No. 00‐cv‐9475, 2002 WL 244597, at *6–7
(S.D.N.Y. Feb. 20, 2002).
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Ill. CONCLUSION
Defendants' motions to dismiss the Second Amended Complaint are
granted with prejudice on the grounds that that complaint fails to
adequately plead any actionable misleading statement or omission.
Dated: New York, New York
March 25, 2016
SO ORDERED:
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