Kaltman v. Petroleo Brasileiro S.A.- Petrobras
Filing
374
OPINION AND ORDER re: 224 MOTION to Dismiss the Third Consolidated Amended Complaint filed by Standard Chartered Bank, Petrobras Global Finance, B.V., Petroleo Brasileiro S.A.- Petrobras, Petrobras America Inc., Morgan St anley & Co. LLC, Scotia Capital (USA) Inc., HSBC Securities (USA) Inc., Merril Lynch, Pierce, Fenner & Smith Incorporated, Banco Bradesco BBI S.A., Citigroup Global Markets Inc., Mitsubishi UFJ Securities (USA), Inc., Theodore Marshall Helms, Bank of China (Hong Kong) Limited, BB Securities Ltd., JP Morgan Securities LLC, ITAU BBA USA Securities, Inc., Banca IMI S.P.A., 349 AMENDED MOTION to Dismiss the Third Consolidated Amended Complaint and the Fourth Conso lidated Amended Complaint filed by Standard Chartered Bank, Petrobras Global Finance, B.V., Petroleo Brasileiro S.A.- Petrobras, Petrobras America Inc., Morgan Stanley & Co. LLC, Scotia Capital (USA) Inc., HSBC Securities (USA ) Inc., Banco Bradesco BBI S.A., Merril Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Mitsubishi UFJ Securities (USA), Inc., Theodore Marshall Helms, Bank of China (Hong Kong) Limited, BB Securities Ltd., JP Morgan Securities LLC, ITAU BBA USA Securities, Inc., Banca IMI S.P.A.: the Court, for the foregoing reasons, dismisses with prejudice the claims of plaintiffs Union and USS based on purchases of Notes and dismisses with prejudice the cla ims of all plaintiffs under § 11 of the Securities Act to the extent they are based on purchases of the 2014 Notes made after May 15, 2015. In all other respects, defendants' instant motion to dismiss is denied. The Clerk of Court is hereby directed to close documents numbered 224 and 349 on the docket of this case. (Signed by Judge Jed S. Rakoff on 12/20/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x
In re: PETROBRAS SECURITIES
LITIGATION
OPINION AND ORDER
-------------------------------------x
JED S. RAKOFF, U.S.D.J.
Lead Plaintiff Universities Superannuation Scheme Ltd.
("USS") brings this putative class action against Brazilian oil
company Petr6leo Brasileiro S.A. - Petrobras
of Petrobras' wholly-owned subsidiaries,
Finance, B.V.
("PGF")
1
("Petrobras"); two
Petrobras Global
and Petrobras America,
Inc.
("PAI");
various former officers and directors of Petrobras and its
subsidiaries
(the "Individual Defendants")
2;
Petrobras'
1
On February 12, 2014, PGF acquired the outstanding shares of
another wholly-owned subsidiary of Petrobras, Petrobras
International Finance Company S.A. ("PifCo").
2
Specifically, the Individual Defendants include Petrobras Chief
Executive Officer ("CEO") Maria das Gracas Silva Foster,
Petrobras CEO Jose Sergio Gabrielli, Petrobras Chief Financial
Officer ("CFO") Almir Guilherme Barbassa, Petrobras director
Paulo Roberto Costa, Petrobras director Jose Carlos Cosenza,
Petrobras director Renato de Souza Duque, Petrobras director
Guillherme de Oliveira Estrella, Petrobras director Jose Miranda
Formigli Filho; Petrobras director Josue Christiano Gomes da
Silva, Petrobras director Silvio Sinedino Pinheiro, PifCo
Chairman and CEO Daniel Lima de Oliveira, PifCo director Jose
Raimundo Brandao Pereira, PifCo CFO Servio Tulio da Rosa Tinoco,
PifCo Chief Accounting Officer Paulo Jose Alves, PGF CEO and
"Managing Director A" Gustavo Tardin Barbosa, PGF CFO and
"Managing Director B" Alexandre Quintao Fernandes, PGF "Managing
Director A" Marcos Antonio Zacarias, PGF "Managing Director B"
Cornelis Franciscus Jozef Looman, and authorized Petrobras
United States Representative Theodore Marshall Helms.
1
independent auditor,
Independentes
offerings
PricewaterhouseCoopers Auditores
("PwC"); and the underwriters of Petrobras's debt
(the "Underwriter Defendants") . 3 Plaintiffs allege that
Petrobras was at the center of a multi-year, multi-billion
dollar bribery and kickback scheme,
in connection with which
defendants made false and misleading statements in violation of
the Securities Act of 1933
(the "Securities Act")
Securities Exchange Act of 1934
and the
(the "Exchange Act") .
The details of this case in general are set forth in the
Court's Opinion dated July 30, 2015,
familiarity with which is
here presumed. See Opinion dated July 30,
2015, at 2-14, ECF No.
194. The Court's July 30, 2015, Opinion explained its Order
dated July 10, 2015,
granting in part and denying in part
defendants' motion to dismiss plaintiffs'
Amended Complaint
first Consolidated
(the "CAC"). See Order dated July 10, 2015,
ECF No. 189; CAC, ECF No. 110. Since the Court's July 10, 2015
Order, plaintiffs have filed,
with leave of Court, three
subsequent amended complaints, most recently the Fourth Amended
Specifically, the Underwriter Defendants are: BB Securities
Ltd., Citigroup Global Markets Inc., J.P. Morgan Securities LLC,
Itau BBA USA Securities, Inc., Morgan Stanley & Co. LLC, HSBC
Securities (USA) Inc., Mitsubishi UFJ Securities (USA), Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Standard
Chartered Bank, Bank of China (Hong Kong) Limited, Banco
Bradesco BBI S.A., Banca IMI S.p.A., and Scotia Capital (USA)
Inc.
3
2
Complaint
(the "FAC")
on November 30, 2015. See FAC, ECF No.
342. Within the confines of the Court's earlier rulings allowing
most of the case to proceed, defendants now move to dismiss
certain claims, or portions of claims,
in the FAC that raise
narrower issues than were previously dealt with.4
The first and most important of these issues, which was
initially raised in defendants' original motion to dismiss and
is now ripe for decision,
is defendants' argument that
plaintiffs' claims based on purchases of Petrobras debt
securities
(the "Notes") must be dismissed under Morrison v.
National Australia Bank Ltd., 561 U.S. 247
(2010). Under
Morrison, the federal securities laws only reach fraudulent
statements made "in connection with the purchase or sale of a
security listed on an American stock exchange, and the purchase
or sale of any other security in the United States." Morrison v.
Nat'l Austl. Bank Ltd., 561 U.S. 247, 273
(2010).
With respect to the first Morrison prong -- the purchase or
sale of a security listed on an American stock exchange -- the
parties agree that, although the Notes were listed or intended
4 The motion was originally directed at plaintiffs' Third Amended
Complaint, but following oral argument the Court allowed
plaintiffs to file the FAC, following which it received further
briefing on the motion to dismiss. See Fed. R. Civ. P. 15(a) (2)
("[A] court should freely give leave [to amend].") Nevertheless,
barring unusual circumstances, no further amendments will be
permitted.
3
to be listed on the New York Stock Exchange
(the "NYSE"), they
did not trade there. See Defendants' Reply Memorandum of Law in
Further Support of their Motion to Dismiss the Third
Consolidated Amended Complaint ("Def. Reply")
at 2, ECF No. 299;
Class Plaintiffs' Memorandum of Law in Opposition to Defendants'
Motion to Dismiss the Third Consolidated Amended Complaint
("P.
Opp.") at 19, ECF No. 268. Notwithstanding Morrison's references
to "listing," the Second Circuit has held that mere listing,
without trading, is insufficient to satisfy Morrison's first
prong. See City of Pontiac Policemen's and Firemen's Retirement
System v. UBS AG,
752 F.3d 173, 179-81 (2d Cir. 2014). This is
because the rationale of Morrison clearly focuses on the
location of actual transactions, "with the domestic listing
acting as a proxy for a domestic transaction." Id. at 180.
Plaintiffs argue, however, that although "the Notes do not
trade on a national exchange per se," they trade on what
plaintiffs call "the bond market" in New York. P. Opp. at 19.
But that market, as plaintiffs concede,
is an "over-the-counter"
market, and over-the-counter transactions are, by definition,
those that do not occur on an exchange. See BLACK'S LAW
DICTIONARY 1279 (10th ed. 2014)
(defining "over-the-counter" as
"[n]ot listed or traded on an organized securities exchange").
Accordingly, plaintiffs' allegations do not satisfy Morrison's
first prong.
4
Of course, over-the-counter purchases or sales made in the
U.S. might seemingly satisfy Morrison's second prong: "the
purchase or sale of any [non-listed]
States." Morrison,
security in the United
561 U.S. at 273. But, again, the Second
Circuit has construed the Morrison test narrowly, in line with
its underlying rationale. Specifically, the Second Circuit has
held that the second prong of Morrison is satisfied only "when
the parties incur irrevocable liability to carry out the
transaction within the United States or when title is passed
within the United States." Absolute Activist Value Master Fund
Ltd. v.
Ficeto,
677 F. 3d 60,
69
(2d Cir. 2012). Moreover,
conclusory assertions that irrevocable liability has been
incurred or that title has passed are insufficient. The parties
must allege more specific facts,
"including, but not limited to,
facts concerning the formation of the contracts, the placement
of purchase orders, the passing of title, or the exchange of
money." Id. at 70.
With respect to irrevocable liability, two of the named
plaintiffs, North Carolina Department of State Treasurer ("North
Carolina") and Employees' Retirement System of Hawaii
("Hawaii"), have adequately pleaded domestic incurrence of such
liability. Specifically,
~~
539-43 of the FAC describe how North
Carolina's traders in Raleigh, North Carolina purchased Notes on
May 13, 2013, and March 10, 2014,
5
from underwriters in New York,
New York,
5
and~~
545-50 of the FAC describe how Hawaii's
investment managers in Newport Beach, California and Los
Angeles, California purchased Notes on Hawaii's behalf from New
York-based underwriters on May 13, 2013, and March 10, 2014.6
Plaintiffs do not, however, adequately allege that the two
other named plaintiffs, Union Asset Management Holding AG
("Union") and USS, satisfy the irrevocable liability prong of
Absolute Activist. With respect to Union, the FAC alleges that
"three funds affiliated with Union
Note]
in the United States." FAC
assertion that transactions
~
. purchased [a Petrobras
551. However, "the mere
'took place in the United States' is
insufficient to adequately plead the existence of domestic
transactions." Absolute Activist,
677 F.3d at 70.
The FAC does plead more specific allegations with respect
to two of the funds affiliated with Union.
alleges that UIN Fonds Nr.
Citigroup Global Markets,
First, the FAC
618 purchased Petrobras Notes from
Inc., an underwriter located at 390-
388 Greenwich St, New York, New York.
FAC
~
552. The Court,
however, need not reach the question of whether this allegation
With respect to North Carolina, the FAC includes the kinds of
facts required by Absolute Activist, including New York area
code phone numbers on the confirmations sent by representatives
of the underwriters. FAC ~~ 540, 542.
5
6 The FAC also includes facts, such as the area codes from which
purchase confirmations were sent, to indicate that Hawaii's
transactions occurred in the United States. FAC ~ 549.
6
satisfies Absolute Activist, because, as the FAC itself states,
UIN Fonds Nr.
618 made minor gains in connection with this
purchase. FAC
~
551 n.65. Union and UIN Fonds Nr.
618 are
distinct entities, and Union can base its claim on UIN Fonds Nr.
618's purchase only because UIN Fonds Nr.
618 assigned its claim
to Union. See Declaration of Rebecca M. Katz in Support of
Motion of the Institutional Investors Group for Consolidation,
Appointment as Lead Plaintiff, and Approval of Selection of
Counsel, Ex. E at 6, ECF No. 19. However, because UIN Fonds Nr.
618 made gains in connection with the only Notes it purchased
that the FAC sufficiently alleges were purchased in the United
States, it has no claim to assign. Losses are an essential
element of any federal securities claim. See Dura
Pharmaceuticals,
Inc. v. Broudo,
544 U.S. 336, 342
(2005).
The FAC also alleges that another fund affiliated with
Union,
DEVIF-Fonds Nr. 81, purchased Notes on the March 10, 2014
offering date in U.S. dollars and that the Notes were held in
"[s]afekeeping of securities abroad, depository country: U.S.A."
FAC
~
553. But the FAC does not allege that this DEVIF-Fonds Nr.
81 purchase occurred in the United States.
Indeed, the FAC's
language suggests that the purchase occurred outside the United
States because it refers to the United States as "abroad." Id.
Accordingly, plaintiffs have failed to allege that Union or its
7
counterparties incurred irrevocable liability in the United
States.
With respect to the final named plaintiff, USS,
alleges that Legal & General Investment Management
located in the United Kingdom,
located in Chicago,
USS,
the FAC
("LGIM"),
instructed its U.S. affiliate,
Illinois, to transfer Petrobras Notes to
located in the United Kingdom.
FAC
~
SSS. These allegations
fail to include the specific facts related to a domestic
purchase required by Absolute Activist.
rather than a purchase,
Indeed, a "transfer,"
is all that is alleged. Moreover,
the
allegations suggest that irrevocable liability was incurred in
the United Kingdom, where USS and LGIM are both located,
rather
than the United States. Accordingly, the FAC fails to adequately
allege that USS satisfied the irrevocable liability prong of
Absolute Activist.
Plaintiffs argue that Union and USS nonetheless satisfy
Absolute Activist's alternative requirement that transfer of
title occurred in the United States. But plaintiffs do not claim
that legal title in the Petrobras Notes was transferred in the
United States. Class Plaintiffs'
Supplemental Memorandum of Law
in Opposition to Defendants' Motion to Dismiss the Complaint on
Morrison Grounds at 8, ECF No.
3SO.
Instead, they allege that
beneficial ownership was transferred in the United States
because their Notes purchases settled through the Depository
8
Trust Company (the "OTC")
in New York, New York, and that this
is the functional equivalent of transfer of title.
The Notes Prospectuses explain that the "OTC was created to
hold securities for its participants and to facilitate the
clearance and settlement of securities transactions between
participants through electronic book-entry changes to accounts
of its participants." FAC
~
531. The OTC, or its nominee Cede &
Co., holds legal title to the vast volume of securities, and
Cede & Co.'s name is listed as the registered owner of these
securities. Nevertheless, to reflect that investors,
such as the
plaintiffs here, are usually the beneficial owners of such
securities, an investor's brokerage firm name is also listed in
OTC's ownership records, and an investor's name,
in turn,
is
listed on the brokerage's own records as the ultimate beneficial
owner.
In these circumstances, plaintiffs contend that when OTC
adjusts its books to settle an investor's trade,
it is the
functional equivalent of transfer of title.
Plaintiffs are correct that global financial markets could
not properly function without the OTC or similar depository
institutions and that the chain reaction of adjustments to book
entries set off by a securities transaction is necessary to
complete a purchase. However,
the operations of the OTC are
insufficient to satisfy Absolute Activist, even assuming that
DTC's bookkeeping affects a change in beneficial ownership in
9
New York. Quite apart from Absolute Activist's clear language
requiring a transfer of [legal] title, Absolute Activist,
677
F.3d at 68, the Second Circuit has elsewhere indicated that
domestic "actions needed to carry out .
. transactions, and
not the transactions themselves[,]" are insufficient to satisfy
Morrison. Loginovskaya v. Batratchenko, 764 F.3d 266, 275
(2d
Cir. 2014). The mechanics of OTC settlement are actions needed
to carry out transactions, but they involve neither the
substantive indicia of a contractual commitment necessary to
satisfy Absolute Activist's first prong nor the formal weight of
a transfer of title necessary for its second.
Moreover, assuming the parties are correct that most
securities transactions settle through the OTC or similar
depository institutions, the entire thrust of Morrison and its
progeny would be rendered nugatory if all OTC-settled
transactions necessarily fell under the reach of the federal
securities laws. The laws would reach most transactions, not
because they occurred on a domestic exchange but because they
settled through the OTC. This result cannot be squared with the
plain language and careful reasoning of Morrison and Absolute
Activist.
Plaintiffs raise one final argument that they satisfy
Absolute Activist. They argue that allegations that a plaintiff
purchased Notes "on the offering date and at the offering price"
10
are sufficient to demonstrate irrevocable liability because all
the underwriters who sold in the initial offerings only did so
in the United States. FAC
~
551. However, although plaintiffs
cite provisions in the Supplemental Prospectuses that indicate
that some Notes were initially offered in the United States, the
actual Supplemental Prospectuses referenced in the FAC do not
state that the Notes were exclusively initially offered in the
United States. See P. Opp. at 16-17; Declaration of Emma Gilmore
in Support of Plaintiffs' Memorandum of Law in Opposition to
Defendants' Motion to Dismiss the Third Consolidated Amended
Complaint Ex. 5, Ex. 6, ECF No. 269.
Indeed, the Supplemental
Prospectuses imply that some underwriters did initially offer
the Notes outside the United States. See,
48, Ex.
6 at S-72
~'
id. Ex. 5 at S-
("Standard Chartered Bank will not effect any
offers or sales of any notes in the United States unless it is
through one or more U.S. registered broker-dealer
.")
("BB
Securities Ltd. is not a broker-dealer registered with the SEC
and therefore may not make sales of any notes in the United
States or to U.S. persons except in compliance with applicable
U.S laws and regulations."). Accordingly, even if plaintiffs had
adequately alleged that they purchased the Notes only in initial
offerings, this alone would not be sufficient to satisfy
Absolute Activist.
11
For the foregoing reasons, the claims of Union and USS
based on Notes purchases must be dismissed under Morrison. The
Notes claims of North Carolina and Hawaii remain, as do the nonNotes claims of Union and USS.
The second of the issues raised in defendants'
instant
motion to dismiss is defendants' objection to the FAC's fourmonth extension of the Class Period of plaintiffs' Exchange Act
claims, such that the Class Period now begins on January 22,
2010 and ends on July 28, 2015. FAC
~
17. This extension is
based on allegedly misleading financial statements Petrobras
released on April 22, 2015 and May 15, 2015. FAC
~~
354-57.
Specifically, Petrobras reported total overcharges of around
$2.5 billion related to the scandal. FAC
169. Plaintiffs claim
~
this figure and the accompany statements were a "whitewash," FAC
~
167-68, and that the true figure,
of which the Petrobras Board
was aware, was closer to $30 billion, FAC
~
446. Plaintiffs
allege that, after this whitewash, corrective disclosures were
made to the market through July 28, 2015, and the prices of
Petrobras securities declined.
FAC
~~
469-82.
Defendants first object to the extension of the Class
Period on reliance grounds. The FAC invokes the fraud-on-themarket doctrine to plead reliance. FAC
Inc. v. Levinson,
that plaintiffs'
485 U.S. 224, 246-47
~~
484-87. See Basic,
(1988). Defendants argue
fraud-on-the-market theory cannot extend past
12
March 27, 2015, when plaintiffs filed the Consolidated Amended
Complaint, alleging that the fraud had diverted "up to or even
more than $28 billion from Petrobras's coffers." CAC
~
5
(emphasis omitted). Defendants argue that the Consolidated
Amended Complaint's allegations were based on publicly available
information, so it would be unreasonable for plaintiffs or the
market to thereafter rely on the earlier fraudulent statements
or the alleged whitewash.
In effect,
Petrobras is arguing (rather remarkably)
that
its own estimate of $2.5 billion in losses was so outlandishly
incorrect that the market and investors in its securities should
have known better than to rely on it. But this argument is factbased and not cognizable on a motion to dismiss. See DeMarco v.
Lehman Bros.,
Inc.,
309 F. Supp. 2d 631,
636
(S.D.N.Y. 2004).
Accordingly, plaintiffs have adequately pleaded reliance for the
Class Period.
Defendants also object to the extension of the Class Period
on loss causation grounds. They claim that plaintiffs have
failed to allege that any new corrective disclosures were made
during the extended Class Period. They argue that the post-April
2015 disclosures are speculative or merely "negative
characterization[s] of already-public information." In re
Omnicom,
Inc. Securities Litigation, 597 F.3d 501, 512
(2d Cir.
2010). In re Omnicom, however, concerned a motion for summary
13
judgment. On a motion to dismiss, all that is required is "some
indication of the loss and the causal connection that the
plaintiff has in mind." Dura Pharmaceuticals, Inc. v. Broudo,
544 U.S. 336, 347
(2005).
The FAC alleges fourteen different disclosures between
April 22, 2015, and July 28, 2015. FAC
~~
469-82. Each of these
disclosures are described as "news," see id.; some involve
details and developments, such as criminal convictions, that
could not have been known before they occurred, see FAC
~
478;
and at least one pertains directly to whether Petrobras's loss
estimates were too low, see FAC
~
475. Moreover, the FAC alleges
that the price of Petrobras securities declined in response to
each disclosure.
FAC
~~
469-82. At a later stage, defendants may
challenge the novelty and accuracy of plaintiffs' alleged news
and its impact on the market, but plaintiffs have adequately
alleged loss causation.
As the third issue raised in their instant motion to
dismiss, defendants correctly note that plaintiffs cannot assert
claims under
§
11 of the Securities Act based on purchases after
May 15, 2015 of the Notes initially offered on March 10, 2014
(the "2014 Notes"). Petrobras filed Forms 20-F and 6-K on May
15, 2015, covering the twelve-month period following the
effective date of the 2014 Notes' offering. See Declaration of
Jared Gerber in Support of Defendants' Motion to Dismiss the
14
Third Consolidated Amended Complaint Ex.
6, Ex.
7, ECF No.
225.
A plaintiff bringing a § 11 claim must prove reliance on a
misrepresentation in a registration statement if the plaintiff
"acquired the security after the issuer has made generally
available to its security holders an earning statement covering
a period of at least twelve months beginning after the effective
date of the registration statement." 15 U.S.C.
§
77k(a).
Plaintiffs do not plead that they relied on the original
registration statements for purchases made after the issuance of
the earnings statements, nor do they respond to defendants'
argument in their briefing. Accordingly, plaintiffs' § 11 claims
based on purchases of the 2014 Notes made after May 15, 2015
must be dismissed.
Next, defendants argue that plaintiffs'
§
15 control person
claims against PAI must be dismissed because they fail to plead
that PAI engaged in "meaningful culpable conduct." Pub. Emps.'
Ret. Sys. of Miss. v. Merrill Lynch & Co.
475,
485
(S.D.N.Y.
Inc.,
714 F. Supp. 2d
2010). The FAC alleges that "[b]y virtue of
its power to control public statements by Defendant Helms,
[PAI]
had the power and ability to control the actions of Defendant
Helms." FAC
~
674. The FAC also alleges that PAI lists Helms as
a Consultant and as the contact person for its New York
financial office.
FAC
~
560. Helms allegedly signed Petrobras's
2012 Registration Statement. FAC
~
15
574. These allegations
satisfy Fed. R. Civ.
P.
8's standard of notice pleading because
they provide defendants with "with fair notice of [plaintiffs']
theory of control" and allege that a person controlled by PAI
signed a Registration Statement containing material
misrepresentations.
1097786 at *3
In re WorldCom,
Inc.
Sec. Litig.,
2004 WL
(S.D.N.Y. May 18, 2004). Although defendants also
challenge the details and extent of PAI's alleged control over
Helms,
these are not a proper subject of a motion to dismiss.
Finally, defendants argue that Union's claims must be
dismissed because Union lacks standing.
Plaintiffs respond that
Union has properly demonstrated its standing through filing
assignments. See Declaration of Rebecca M. Katz in Support of
Motion of the Institutional Investors Group for Consolidation,
Appointment as Lead Plaintiff,
Counsel,
Ex. E,
ECF No.
and Approval of Selection of
19. Defendants do not respond to this
point in their reply papers and wisely so: "an assignment of
claims .
fulfills the constitutional requirement of an
"injury-in-fact." W.R. Huff Asset Management Co., LLC v.
Deloitte & Touche LLP,
In sum, the Court,
549 F.3d 100, 108
(2d Cir. 2008).
for the foregoing reasons, dismisses
with prejudice the claims of plaintiffs Union and USS based on
purchases of Notes and dismisses with prejudice the claims of
all plaintiffs under § 11 of the Securities Act to the extent
they are based on purchases of the 2014 Notes made after May 15,
16
2015.
In all other respects, defendants'
instant motion to
dismiss is denied.
The Clerk of Court is hereby directed to close documents
numbered 224 and 349 on the docket of this case.
SO ORDERED.
Dated:
New York, NY
December J6, 2015
17
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