Fernandez et al v. UBS AG et al
Filing
252
OPINION AND ORDER: re: 200 MOTION in Limine Notice of Defendants' Motion to Exclude the Expert Reports and Opinions of Alan J. Besnoff and Mercer E. Bullard filed by UBS A.G., UBS Trust Company of Puerto Rico, UBS Financial Services Incorpo rated of Puerto Rico, UBS Bank USA, UBS Financial Services Inc., 174 MOTION to Certify Class filed by Victor R. Vela-Diez de Andino, Eddie Toro-Velez, Esther Santana, Augusto Schreiner, Georgina Velez-Montes, Nora Fernandez, Juan Viera. For the r easons set forth above, the Court finds that the sole question of law or fact common to members of the proposed class is significantly outweighed by a number of questions affecting only individual members. Accordingly plaintiffs' motion for class certification (ECF No. 174) is DENIED, and defendants' Daubert motion (ECF No. 200) is DISMISSED as moot. SO ORDERED. (Signed by Judge Sidney H. Stein on 9/17/2018) (ama)
Case 1:15-cv-02859-SHS Document 252 Filed 09/17/18 Page 1 of 40
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NORA FERNANDEZ; AUGUSTO
SCHREINER; EDDIE TORO VELEZ;
VICTOR R. VELA DIEZ DE ANDINO;
JUAN VIERA; GEORGINA VELEZ
MONTES; and ESTHER SANTANA, on
behalf of themselves and all others
similarly situated,
Plaintiffs,
‐against‐
UBS AG; UBS FINANCIAL SERVICES,
INC.; UBS FINANCIAL SERVICES
INCORPORATED OF PUERTO RICO; UBS
TRUST COMPANY OF PUERTO RICO;
UBS BANK USA; CARLOS V. UBIÑAS;
MIGUEL A. FERRER; BANCO POPULAR
de PUERTO RICO; and POPULAR
SECURITIES, LLC,
Defendants.
SIDNEY H. STEIN, U.S. District Judge.
15‐Cv‐2859 (SHS)
OPINION & ORDER
This breach of contract action concerns investments that plaintiffs
made in one or more of twenty closed‐end mutual funds (“CEFs,” or
“Funds”), each of which contained a high percentage of Puerto Rico
government bonds. Plaintiffs are current or former clients of defendant
UBS Financial Services Incorporated of Puerto Rico. The contract at issue
is the client agreement (“Client Agreement”) between plaintiffs and the
defendants – subsidiaries of the Swiss global financial services company
UBS (collectively, “UBS”).
Plaintiffs contend that UBS – their broker‐dealer – breached the Client
Agreement by failing to perform suitability analyses in connection with
Case 1:15-cv-02859-SHS Document 252 Filed 09/17/18 Page 2 of 40
plaintiffs’ investments in the Funds. Thus, “the theory underlying
[plaintiffs’] claim is not a standard suitability claim – i.e., that an
investment was not suitable – but rather simply that defendants were
obligated to conduct a suitability analysis and failed to conduct any such
analysis, regardless of whether the investment was suitable or not.”
Fernandez v. UBS AG, 222 F. Supp. 3d 358, 389 (S.D.N.Y. 2016). A
suitability analysis, as described more fully below, is an analysis that leads
to a determination that a particular investment product is suitable for
investment generally and for a client specifically – or not.
Before the Court is plaintiffs’ motion to certify the following class:
All persons who had client agreements with UBS Financial
Services Incorporated of Puerto Rico (“UBS”) requiring UBS
to conduct suitability analyses and who purchased shares
of one or more of the Twenty CEFs1 between May 5, 2008
and May 5, 2014 (the “Class Period”).
(Pl.’s Am. Not. of Mot. for Class Cert. Modifying the Class Def’n (“Not. of
Class Def’n”), ECF No. 212.)
Whether an investment is suitable for a particular client is an
inherently individualized inquiry; it depends on the unique characteristics
of both the investor and the investment at a particular point in time.
However, plaintiffs contend that by focusing on the conduct of UBS,
together with a representative sample of client accounts, common proof
The “Twenty CEFs” are: Puerto Rico Investors Tax‐Free Fund, Inc.; Puerto Rico
Investors Tax‐Free Fund II, Inc.; Puerto Rico Investors Tax‐Free Fund III, Inc.; Puerto
Rico Investors Tax‐Free Fund IV, Inc.; Puerto Rico Investors Tax‐Free Fund V, Inc.;
Puerto Rico Investors Tax‐Free Fund VI, Inc.; Puerto Rico Investors Bond Fund I; Tax‐
Free Puerto Rico Fund, Inc.; Tax‐Free Puerto Rico Fund II, Inc.; Tax‐Free Puerto Rico
Target Maturity Fund, Inc.; Puerto Rico AAA Portfolio Target Maturity Fund, Inc.;
Puerto Rico AAA Portfolio Bond Fund, Inc.; Puerto Rico AAA Portfolio Bond Fund II,
Inc.; Puerto Rico Mortgage‐Backed & U.S. Government Securities Fund, Inc.; Puerto
Rico Fixed Income Fund, Inc.; Puerto Rico Fixed Income Fund II, Inc.; Puerto Rico
Fixed Income Fund III, Inc.; Puerto Rico Fixed Income Fund IV, Inc.; Puerto Rico
Fixed Income Fund V, Inc.; and Puerto Rico Fixed Income Fund VI, Inc.
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can establish whether or not UBS failed to conduct suitability analyses for
members of the proposed class.
For the reasons that follow, the Court finds that plaintiffs have not
demonstrated that the facts and allegations in this case are susceptible to
generalized proof. To the contrary, the Court finds that individual
questions overwhelm the classwide questions, thus contravening the
predominance requirement of Federal Rule of Civil Procedure 23(b)(3),
and that each proposed class member’s claim arises from a course of
events that is unique to that class member, in contravention of the
typicality requirement of Rule 23(a). Accordingly, plaintiffs’ motion for
class certification is denied.
I.
PROCEDURAL HISTORY
Plaintiffs’ Amended Complaint asserted state law claims of breach of
fiduciary duty, aiding and abetting breach of fiduciary duty, and breach of
contract, against UBS together with Banco Popular de Puerto Rico and an
affiliated LLC, and two individual defendants: Carlos Ubiñas, CEO of
UBS Puerto Rico, and Miguel Ferrer, the former Chair and CEO of UBS
Puerto Rico and the founder and former CEO of UBS Trust. (Am. Compl.,
ECF No. 68.) See Fernandez, 222 F. Supp. 3d at 363‐64. In three separate
motions, the original defendants moved to dismiss the amended complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Fernandez, 222 F. Supp. 3d at 369.
In December 2016, the Court granted in part and denied in part the
motions to dismiss, id. at 390‐91, and the reader is referred to that Opinion
for relevant background. As a result, the only claims remaining at that
time were Fernandez’s, Montes’s, and Schreiner’s breach of contract claims
against UBS and Vela’s breach of contract claim against the Banco Popular
defendants, to the extent those claims were premised on the breach of an
express provision of plaintiffs’ contracts obliging the defendants to
conduct a suitability analysis. Id.
In July 2017, the parties stipulated to the dismissal of all claims against
the Banco Popular defendants as a result of Vela – the sole remaining
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plaintiff with claims against those defendants – having passed away.
(Stip. and Order, ECF No. 157.)
Now before the Court is the motion by the remaining plaintiffs to
certify the class pursuant to Federal Rule of Civil Procedure 23(b)(3).
(Notice of Mot. for Class Cert., ECF No. 174.) On May 10, 2018, concurrent
with the filing of their reply brief, plaintiffs amended the definition of their
proposed class. (Not. of Class Def’n.) The Court then granted the parties’
joint request for supplemental briefing, and the motion was fully briefed
and ripe for decision in late June, 2018. (Pls.’ Sur‐Sur‐Reply Mem. of Law
(“Pls.’ Sur‐Reply”), ECF No. 228; see also Stip. and Order 4 (“All
submissions necessary for the Court to decide plaintiffs’ motion for class
certification must be submitted by June 25, 2018”), ECF No. 223; Letter at 1,
ECF No. 222.) The Court heard oral argument on the motion on August 8,
2018. (See Oral Arg. Tr. (“Oral Arg.”), ECF No. 249.)
Also before the Court is UBS’s motion to exclude the reports and
opinions of two of plaintiffs’ experts, Alan J. Besnoff and Mercer E.
Bullard, pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), and Federal Rule of Evidence 702. (Notice of Motion, ECF No. 200.)
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II. FACTUAL BACKGROUND2
The sole issue in this breach of contract action is whether UBS breached
its obligation to members of the proposed class by failing to perform any
suitability analyses with regard to the Funds before recommending that
class members purchase or hold the Funds.
A. The Requirement of a Suitability Analysis
UBS was bound by a common provision in the Client Agreements with
members of the proposed class that states as follows: “We must have a
reasonable basis for believing that any securities recommendations we
make to you are suitable and appropriate for you, given your individual
financial circumstances, needs, and goals.”3 (E.g., Account Application 20,
PX‐34; UBS Client Relationship Agreement and Disclosures 50, DX‐30.)
Plaintiffs’ exhibits, denoted “PX,” are attached to the Declarations of Jon T. Pearson
(ECF Nos. 175, 215, 217) and Jeremy P. Robinson (ECF No. 227). Defendants’ exhibits,
denoted “DX,” are attached to the Declarations of Jonathan K. Youngwood. (ECF
Nos. 198, 224.) Among the exhibits are two reports from each expert for each party;
the parties conceive of these as class certification reports and merits reports.
However, since all are submitted to the Court at this pre‐merits stage, the Court
considers them all to the extent they are relevant to class certification, and denotes
them “First [Expert] Report” or “Second [Expert] Report” rather than “Class” and
“Merits.” Plaintiffs’ experts’ reports are located in the record as follows: Joseph R.
Mason (PX‐26 and PX‐70A), Mercer E. Bullard (PX‐27 and PX‐67), Alan J. Besnoff (PX‐
28 and PX‐68), and David Madigan (PX‐29 and PX‐69). Defendants’ experts’ reports
are located in the record as follows: Christopher Laursen (DX‐1 and DX‐66), John
Davenport Maine (DX‐2 and DX‐67), Chudozie Okongwu (DX‐3 and DX‐68), and
David E. Paulukaitis (DX‐69).
2
The precise language of this provision was not identical among the Client
Agreements, but the parties do not contend that any minor variation is material to this
action. (See Pls.’ Mem. of Law in Supp. of Mot. for Class Cert. (“Pls.’ Mem.”) 17, ECF
No. 176; Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for Class Cert. (“Defs.’ Opp’n”) 1,
ECF No. 199.) In addition, some UBS clients had Client Agreements that omitted this
provision altogether; those clients are expressly excluded from the class proposed by
plaintiffs. (See Not. of Class Def’n.) See also Fernandez, 222 F. Supp. 3d at 389
(dismissing claims by plaintiffs whose Client Agreements did not include this
provision).
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The Client Agreement itself does not elaborate on this provision or the
duties it imposes on UBS.
Separate and apart from the Client Agreements, UBS was obligated to
perform suitability analyses by Financial Industry Regulatory Authority
(FINRA) regulations, as well as UBS’s own internal policies. FINRA’s
suitability rule – FINRA Rule 21114 (“Rule 2111,” or the “Suitability Rule”)
– comes with a well‐developed body of guidance, and plaintiffs contend
that the duties imposed by the Client Agreement are either informed by
Rule 2111 and the related guidance, or coextensive with them. Although
UBS does not concede that the contract should be interpreted in line with
Rule 2111,5 it nonetheless frames its arguments around Rule 2111 and its
related guidance, as do plaintiffs.
Rule 2111 provides that UBS
must have a reasonable basis to believe that a
recommended transaction or investment strategy involving
a security or securities is suitable for the customer, based on
the information obtained through the reasonable diligence
of [UBS] to ascertain the customer’s investment profile. A
customer’s investment profile includes, but is not limited to,
the customer’s age, other investments, financial situation
and needs, tax status, investment objectives, investment
experience, investment time horizon, liquidity needs, risk
tolerance, and any other information the customer may
disclose to [UBS] in connection with such recommendation.
FINRA Rule 2111(a).
FINRA Rule 2111 became effective in the middle of the Class Period, on July 9, 2012,
when FINRA succeeded the National Association of Securities Dealers (NASD) as
UBS’s self‐regulatory organization. (First Bullard Report ¶ 7; Second Besnoff Report
8‐10; First Laursen Report ¶¶ 38‐44; First Maine Report 6.) Prior to that, UBS was
subject to NASD Rule 2310, an analogue to FINRA Rule 2111. (Id.)
4
(See Oral Arg. 31:6‐12 (“[I]t is unclear whether or not the FINRA suitab[ility] rules
themselves . . . apply to this case.”).)
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FINRA elaborates on Rule 2111 in “Supplementary Materials” to the
rule, which explain that the Suitability Rule requires UBS to make a
determination that any securities it recommends are (1) suitable for
investment generally, and (2) suitable for the particular client to whom it is
being recommended for investment. Here, the parties refer to these
obligations, respectively, as (1) “product‐focused suitability,” or
“suitability per se” or “reasonable‐basis suitability,” and (2) “client‐
focused suitability” or “customer‐specific suitability.”6
According to the Supplementary Materials, the product‐focused
suitability analysis required UBS and its financial advisors to determine
“that the recommendation is suitable for at least some investors.” FINRA
Rule 2111 supp. mat. 05(a) (emphasis in original). Of particular relevance
to this action, the parties dispute the role of a product’s stated investment
objective in a product‐focused suitability analysis. Although a product’s
investment objective is not mentioned in Rule 2111 or the Supplementary
Materials, there is some evidence that FINRA deems it to be at least
relevant to the product‐focused suitability analysis. (See Second Bullard
Report ¶¶ 29, 31; see also Corr. Reply Mem. of Law in Supp. of Pls.’ Mot.
for Class Cert. (“Pls.’ Reply”) 7 n.21, ECF No. 218.)
A client‐focused suitability analysis required UBS and its financial
advisors to make a highly individualized determination “that the
recommendation is suitable for a particular customer based on that
customer’s investment profile.” FINRA Rule 2111 supp. mat. 05(b). The
investment profile “includes, but is not limited to, the customer’s age,
other investments, financial situation and needs, tax status, investment
objectives, investment experience, investment time horizon, liquidity
needs, risk tolerance, and any other information the customer may disclose
to [UBS] in connection with such recommendation.” FINRA Rule 2111(a).
For example, depending on the circumstances, a recommendation might
be unsuitable for a client if it would cause that client to become
FINRA’s product‐focused and client‐focused suitability obligations were mirrored in
UBS’s own internal policies during the Class Period. (See, e.g., Suitability and Ethical
Sales Practices 3‐4 (internal UBS document setting forth suitability obligations), PX‐9;
2007 Legal and Compliance Presentation 4 (same), PX‐2.)
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overconcentrated in a particular security – that is, if the security would
occupy a disproportionate percentage of the client’s aggregate investment
portfolio. (See Second Besnoff Report 29 (quoting UBS Sales Practice
Compliance Manual 60 (July 2008)); UBS Sales Practice Compliance
Manual 58 (Dec. 2008), PX‐33.)
By its terms, Rule 2111 – as with the suitability provision in the Client
Agreement – only applied with respect to investments that were
“recommended” by UBS or its financial advisors. A FINRA notice
explained that “determining whether a particular communication could be
viewed as a recommendation for purposes of the suitability rule” depends
on “the facts and circumstances of the particular case.” (FINRA
Regulatory Notice 11‐02 at 2 (Jan. 2011), DX‐73; see also NASD Notice to
Members 96‐60 at 473‐74 (Sept. 1996), PX‐74.) The notice also sets forth
certain “guiding principles [that] are relevant” to that determination, such
as “a communication’s content, context and presentation,” and whether a
communication is “individually tailored . . . to a particular customer or
customers.” (FINRA Regulatory Notice 11‐02 at 2‐3.)
Although FINRA imposed “a general obligation to evidence
compliance with applicable FINRA rules,” it had no explicit requirement
that UBS or its financial advisors document their suitability analyses and
determinations, except under certain circumstances.7 (FINRA Regulatory
Notice 11‐25 at 7 (May 2011), DX‐23; see also Second Besnoff Report 19‐20;
Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for Class Cert. (“Defs.’ Opp’n”)
8, ECF No. 199.) The parties dispute whether the explicit documentation
requirements were applicable to the Funds, and also the nature and extent
of the documentation that was required. (Pls.’ Reply 8‐9; Defs.’ Sur‐Reply
Mem. of Law in Opp’n to Pls.’ Mot. for Class Cert. (“Defs.’ Sur‐Reply”) 3‐4,
ECF No. 225.) Plaintiffs also contend that suitability documentation was
considered an industry best‐practice. (Pls.’ Reply 8‐9.)
Internal UBS policies did not impose any documentation requirement either, at least
not until October 1, 2013. (See Suitability and Ethical Sales Practices 1 (Oct. 1, 2013),
PX‐43.)
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B. Common Evidence Related to the Funds
The investment products at the center of this litigation are the Funds,
which the Court described in its prior Opinion in this action as follows:
The closed‐end mutual funds at issue in this case are
incorporated pursuant to Puerto Rico law and are
structured to provide tax‐free income to Puerto Rico
residents. As long as at least 67% of each Fund’s holdings
are comprised of Puerto Rico assets, the income that
shareholders receive from the Funds’ investments is not
taxed by the municipal, state, or federal governments. In
order to take advantage of this tax benefit, a high
percentage of each Fund’s holdings are Puerto Rico
government bonds. Only Puerto Rico residents can
purchase shares in the Funds, which do not trade nationally
and are not listed on any national securities exchange.
The Funds are also exempt from registration pursuant to
the Investment Company Act of 1940 (the “Act”).
Consequently, the Act’s . . . restrictions on the use of
leverage do not apply to the Funds as a matter of federal
statutory law. As a result, the Funds were highly leveraged,
with approximately 50% of their assets financed through
loans.
. . . .
In June 2013, the value of the Puerto Rico government
bonds began to decline due to the market’s concerns about
the government’s creditworthiness and the possibility of a
rating agency downgrade. Consequently, the market value
of the Funds’ assets plummeted as well. By March 2014, the
Funds had lost more than half their value. [Those] losses
were aggravated by the lack of diversity in the Funds’
assets as well as by the highly leveraged nature of the
Funds.
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Fernandez, 222 F. Supp. 3d at 365, 369 (citations omitted).
To support their motion for class certification, plaintiffs invoke certain
attributes of the Funds and other related facts which they contend are
common evidence of UBS’s failure to perform suitability analyses. In
particular, plaintiffs invoke the Funds’ stated investment objectives, the
fact that the Funds were excluded from a UBS internal control system, and
certain known concerns about the Funds within UBS.
1.
The Funds’ Stated Investment Objectives
Each of the Funds had two or more explicitly stated objectives that
were set forth in that Fund’s prospectus. (See, e.g., Puerto Rico Investors
Tax‐Free Fund, Inc. Prospectus 5, DX‐36; see also Second Laursen Report
app’x C tab. C.1 (collecting the stated objectives from each of the twenty
Funds).) The Funds all had one objective in common: preservation of
capital. (First Bullard Report ¶ 12; First Laursen Report ¶ 72.) All of the
Funds also had an income‐generation objective (see Second Laursen Report
¶ 66 (“highest possible current income,” “high level of current income,” or
“current income”)), and some Funds had other objectives in addition, such
as “income that is exempt from Federal and Puerto Rico income taxes,”
(Defs.’ Opp’n 20‐21 (alteration omitted) (quoting Puerto Rico Investors
Tax‐Free Fund, Inc. Prospectus 5)), and to “return your initial investment
. . . by or before” a specified “Target Date,” (First Laursen Report ¶ 73;
Puerto Rico AAA Portfolio Target Maturity Fund, Inc. Prospectus at S‐1,
DX‐37).
Plaintiffs contend that common evidence will establish that the Funds
were not actually structured in accordance with one of these stated
objectives: preservation of capital. According to plaintiffs’ expert on
product‐focused suitability, this common proof will include evidence that
the Funds: held securities that presented a risk of default and that traded
in illiquid markets; were highly concentrated and highly leveraged; and
“issued shares that traded in an unregulated, artificial market at prices that
were determined by defendants.” (First Bullard Report ¶ 3.)
Critically, plaintiffs and their expert limit their focus to the capital‐
preservation objective. Apart from that objective, plaintiffs do not contend
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that any Fund was not structured consistently with any of its other
objectives. Nor do plaintiffs contend that any Fund was not structured
consistently with all of its objectives collectively.
2.
Exclusion of the Funds from a UBS Internal Control System
Plaintiffs also cite as common evidence the fact that UBS excluded the
Funds from an internal control system called the Branch Management
Supervisory System (“BMSS”). Among other things, the BMSS generated
an alert when a client account became overconcentrated in a particular
security. (Second Besnoff Report 57; Second Maine Report 48.) Because
the Funds were excluded from the BMSS during the Class Period, BMSS
could not alert UBS and its financial advisors if a client account became
overconcentrated in the Funds. (Second Besnoff Report 57; Second Maine
Report 48.) Because concentration is a factor to be considered in the client‐
focused suitability analysis, plaintiffs contend that the exclusion of the
Funds from the BMSS is common evidence that UBS failed to conduct any
client‐focused suitability analyses.
UBS has not provided a reason for why the Funds were excluded from
the BMSS. However, according to its expert on client‐focused suitability,
UBS did not include any closed‐end funds in the BMSS system. (Second
Maine Report 48.) According to the expert, those funds, along with
mutual and other funds, “provide internal geographic and issuer
diversification because of the numerous positions that they hold.” (Id.) As
a result, closed‐end fund concentration “normally does not deliver the
same urgency that can occur with concentration in a single‐issuer
security.” (Id.) Furthermore, UBS contends that it monitored client
concentration of investment in the Funds using other systems and
methods apart from the BMSS, such as by the Compliance Surveillance
Unit as well as through reports created by UBS Legal & Compliance.8 (Id.
45‐47; see, e.g., Email re: “Compliance Inquiry: Closed End Funds” (Mar.
10, 2011), DX‐60.)
Plaintiffs contend that “[n]o other UBS system performed th[e] critical risk‐control
function” that BMSS did. (Pls.’ Reply 7 n.23 (citing Mendez Dep. 249:25‐264:15, PX‐
50).) However, it is not apparent that the exhibit cited supports this proposition.
8
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3.
Known Concerns About the Funds Within UBS
As additional common proof, plaintiffs cite evidence that individuals
within UBS harbored concerns about the Funds during the Class Period.
Specifically, plaintiffs refer to an email and speech from 2011 that raised
specific concerns about the Funds, as well as a 2009 initiative that resulted
in UBS reducing its own investment in the Funds.
In 2011, a group of financial advisors at one of the UBS branch offices
in Puerto Rico raised specific concerns about the Funds which were
reduced to email by the branch manager. (Email from Colon to Almonte
(June 1, 2011), PX‐12; see Almonte Dep. 211‐12, PX‐24.) Among their
concerns about the Funds were: “low liquidity, excessive leverage,
instability, geographic concentration, and a lack of information.” (Pls.’
Mem. of Law in Supp. of Mot. for Class Cert. (“Pls.’ Mem.”) 7 (quoting
Email from Colon to Almonte), ECF No. 176; see Almonte Dep. 212‐26
(translating email).) In response to those concerns, the CEO of UBS Puerto
Rico, Miguel Ferrer, visited the branch office and addressed the financial
advisors directly. (Transcript of June 2, 2011 Comments by Miguel Ferrer
to UBS Puerto Rico Financial Advisors (“Ferrer Transcript”), PX‐13.)
The parties have different views about the purpose and significance of
Ferrer’s talk: in defendants’ recounting, the address was along the lines of
a pep talk (Defs.’ Opp’n 19); according to plaintiffs, it was an exercise in
exerting pressure by management upon the financial advisors to keep
recommending the Funds in spite of their concerns (Pls.’ Mem. 7‐8, 19). It
is undisputed that Ferrer told the financial advisors that they should “go
home [and] get a new job” if they could not continue selling the Funds.
(See Ferrer Transcript 3:17.)
Plaintiffs also cite a 2009 UBS initiative called “Operation: Soft
Landing.” According to UBS – not disputed by plaintiffs – this initiative
was a global UBS policy to reduce UBS’s own risk exposure following the
financial crisis of 2008. (Defs.’ Opp’n 19.) Pursuant to that policy, UBS
temporarily reduced its own holdings of the Funds. (Id.; Pls.’ Mem. 7.)
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C. Statistical Proof: The 500‐Account Sample
Plaintiffs’ primary evidence that UBS breached its obligation to
undertake any client‐focused suitability analyses consists of a study of 500
accounts conducted by its expert (the “Besnoff Study”). The Besnoff
Study’s methodology and conclusions are the subject of vigorous dispute
between the parties; the study is also one of the subjects of UBS’s separate
Daubert motion. (See Notice of Motion, ECF No. 200.)
Pursuant to an agreement between the parties, UBS produced to
plaintiffs information pertaining to a random sample of 500 accounts that
were invested in the Funds during the Class Period. The production
included the following information for each of the accounts in the sample:
(1) notes recorded by financial advisors in UBS’s client relationship
management system; (2) BMSS daily reports; (3) “Know Your Client”
account changes; and (4) buy, sell, and reinvestment transaction data.
(Second Besnoff Report 31; Second Maine Report 26.)
The Besnoff Study reviewed the information from the 500 accounts and
concluded that it was devoid of evidence of any client‐focused suitability
analyses whatsoever. (Second Besnoff Report 1 (“[T]here is no
documented evidence indicating that UBS or its financial advisors
performed the required customer‐specific suitability review when
recommending investments in the Funds during the Class Period.”).)
Besnoff limited his review to the “documented evidence” in the sample,
and expressly did not consider whether evidence outside of the documents
might reflect that suitability analyses were undertaken. (Id. at 43 (“[I]t is
my understanding that the documents for the sample that UBS has
produced in this litigation are the sources that would contain evidence of
any suitability analysis conducted by financial advisors when
recommending investments in the Funds for accounts within the 500
account sample.”).)
UBS challenges the Besnoff Study as inherently flawed because Besnoff
considered only the documents in the agreed‐upon production. According
to UBS, the parties agreed only that UBS would produce certain
information – not, as Besnoff assumed in his study, that UBS would
produce all documents reflecting whether a suitability analysis was done.
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(Defs.’ Sur‐Reply 4‐5; Second Maine Report 26 n.11; see Hr’g Tr. 28:18‐31:7
(“We’re not agreeing about whether or not this is the full universe of
material that proves the existence of suitability or not suitability.”), ECF
No. 162.)
To the contrary, UBS and its rebuttal expert contend that suitability
analyses for accounts in the sample may in fact have been documented in
materials that were not part of the negotiated production at all, such as
emails and client presentations. (Second Maine Report 27‐28, 38‐44.) More
fundamentally, they contend that there was no requirement that suitability
analyses be documented at all, and so any adequate study would have to
consider information outside of the documentary record, such as
testimony from clients and financial advisors. (Id.; see also generally
Paulukaitis Report.)
UBS’s rebuttal expert also undertook an account‐level challenge to the
Besnoff Study, contesting Besnoff’s conclusion that documents in the
sample do not evince any client‐focused suitability analyses. (See Second
Maine Report app’x A.) For example, the parties disagree about whether
more than thirty notes recorded by financial advisors in UBS’s client
management system reflect the existence of client‐focused suitability
analyses. (Id.)
Finally, the parties also dispute whether the conclusions of the Besnoff
Study can properly be extrapolated to the rest of the proposed class.
Plaintiffs’ statistics expert found that conclusions based on the 500‐account
sample could indeed be extrapolated to the full class with 95% confidence.
(First Madigan Report ¶¶ 12‐13.) Defendants observe that the sample is
not actually reflective of the proposed class, because it includes accounts
for clients who came within plaintiffs’ proposed class as originally defined
(see Pls.’ Mem. 1), but who were then excluded from the revised class
definition (see Not. of Class Def’n) which was not revised until after the
random sample had been generated and analyzed,9 (Defs.’ Sur‐Reply 3
Specifically, the original class definition – and the sample – included accounts for
clients who (1) held but did not purchase the Funds during the class period, (2)
purchased (or held) funds that are no longer at issue in this litigation, and (3)
9
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n.5). The sample also includes accounts for clients who had Client
Agreements that did not contain the relevant provision requiring UBS to
conduct suitability analyses. (Id.) According to defendants, once accounts
excluded from the amended class are scrubbed from the 500‐account
sample, it reduces to only 260 accounts. (See id.) In reply, plaintiffs’
statistics expert contends that conclusions from the original sample can
still be extrapolated to the class, and even if it were reduced to 260
accounts, it could still be extrapolated with 95% confidence. (See generally
Madigan Dec., PX‐77.)
III. THE MOTION FOR CLASS CERTIFICATION10
A. Legal Standards
Where a plaintiff seeks to certify a class pursuant to Federal Rule of
Civil Procedure 23(b)(3), she
bears the burden of satisfying the requirements of Rule
23(a) – numerosity, commonality, typicality, and adequacy
of representation – as well as Rule 23(b)(3)’s requirements:
(1) that “the questions of law or fact common to class
members predominate over any questions affecting only
individual members” (the “predominance” requirement);
and (2) that “a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy” (the “superiority” requirement).
purchased Funds based on something other than a UBS recommendation. (Defs.’ Sur‐
Reply 3 n.5.)
For the avoidance of doubt, the Court notes that it has already determined that
plaintiffs have “class standing” to assert claims on behalf of absent class members.
Fernandez, 222 F. Supp. 3d at 373. In the Opinion granting in part and denying in part
defendants’ motions to dismiss, the Court found that plaintiffs had standing, and that
defendants’ arguments to the contrary were more relevant to whether a Rule 23 class
could be certified, not to whether plaintiffs had standing to seek its certification. The
Court turns to those arguments now.
10
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In re Petrobras Sec., 862 F.3d 250, 260 (2d Cir. 2017) (quoting Fed. R. Civ. P.
23(b)(3)); see also Leber v. Citigroup 401(k) Plan Inv. Comm., 323 F.R.D. 145,
159 (S.D.N.Y. 2017). “A party seeking class certification must affirmatively
demonstrate [her] compliance with the Rule—that is, [she] must be
prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Wal‐Mart Stores Inc. v. Dukes, 564
U.S. 338, 350 (2011); see also Johnson v. Nextel Commc’ns Inc., 780 F.3d 128,
138 (2d Cir. 2015) (“[A] court must . . . satisfy[] itself that Rule 23
compliance may be demonstrated through ‘evidentiary proof.’ (quoting
Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013))); Leber, 323 F.R.D. at 159.
“To certify a class, a district court must ‘make a definitive assessment
of Rule 23 requirements, notwithstanding their overlap with merits issues,
must resolve material factual disputes relevant to each Rule 23
requirement,’ and must find that each requirement is ‘established by at
least a preponderance of the evidence.’” In re U.S. Foodservice Inc. Pricing
Litig., 729 F.3d 108, 117 (2d Cir. 2013) (internal quotation marks and
alteration omitted) (quoting Brown v. Kelly, 609 F.3d 467, 476 (2d Cir.
2010)); see also Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 75 (2d Cir.
2015) (noting that at the certification stage, a district court should “only
resolve[] factual disputes to the extent necessary to decide the class
certification issue”).
The elements of a breach of contract claim under New York law are
“(1) the existence of a contract between [the plaintiff] and th[e] defendant;
(2) performance of the plaintiff’s obligations under the contract; (3) breach
of the contract by th[e] defendant; and (4) damages to the plaintiff caused
by th[e] defendant’s breach.” Diesel Props S.r.l. v. Greystone Bus. Credit II
LLC, 631 F.3d 42, 52‐53 (2d Cir. 2011). “Causation is an essential element of
damages in a breach of contract action; and, as in tort, a plaintiff must
prove that a defendant’s breach directly and proximately caused his or her
damages.” Id. (emphasis omitted) (quoting Nat’l Mkt. Share v. Sterling Nat’l
Bank, 392 F.3d 520, 525 (2d Cir. 2004)). In this action, the parties dispute
only whether the third and fourth elements, including causation, are
satisfied.
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At issue on the present motion is whether the proposed class satisfies
the Rule 23(a) requirements of commonality, typicality, and adequacy of
representation, and the Rule 23(b)(3) requirements of predominance and
superiority. There is no dispute that the requirement of numerosity is
satisfied (Pls.’ Reply 3 n.4), and the Court agrees that it is satisfied.11
B. Commonality: Rule 23(a)(2)
“Rule 23(a)’s commonality prerequisite is satisfied if there is a common
issue that ‘drives the resolution of the litigation’ such that ‘determination
of its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.’” Sykes v. Mel S. Harris & Assocs. LLC,
780 F.3d 70, 84 (2d Cir. 2015) (alterations omitted) (quoting Wal‐Mart, 564
U.S. at 350); see also Wal‐Mart, 564 U.S. at 350 (“What matters to class
certification is not the raising of common ‘questions’ – even in droves –
but, rather the capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation.” (alteration omitted)
(quoting Richard A. Nagareda, Class Certification in the Age of Aggregate
Proof, 84 N.Y.U. L. Rev. 97, 132 (2009))); Leber, 323 F.R.D. at 160.
Plaintiffs suggest several questions which they contend are common to
the proposed class. Those questions can be summarized as: (1) What were
UBS’s duties to members of the proposed class pursuant to the suitability
provision in the Client Agreement, (2) did UBS breach its duties pursuant
to that provision, and (3) what are the proposed class members’ damages.12
“In this Circuit, numerosity is ‘presumed at a level of 40 members.’” Leber, 323
F.R.D. at 159 (quoting Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.
1995)). The proposed class satisfies this requirement “in light of UBS’s representation
that more than 20,100 client accounts held the Funds during the Class Period.” (Pls.’
Mem. 12.)
11
In their briefing, plaintiffs suggested only one allegedly common question:
“[W]hether UBS breached its contractual obligations to putative Class members by
failing to conduct adequate suitability analyses when making investment
recommendations regarding the Funds.” (Pls.’ Mem. 12.) At oral argument plaintiffs
for the first time suggested four different questions that were not identified in the
briefing: did UBS have a contractual obligation to perform suitability analyses, did
that obligation require product‐focused and client‐focused suitability analyses, did
12
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The Court agrees that the first question is common to the class and capable
of generating common answers that are apt to drive the resolution of the
litigation.
In the context of a claim for breach of contract, where members of a
proposed class entered into contracts that were identical in all material
respects, matters of contract interpretation generally supply a common
question sufficient to satisfy Rule 23’s commonality requirement. See
Dover v. British Airways, PLC (UK), 321 F.R.D. 49, 54 (E.D.N.Y. 2017), leave
to appeal denied, No. 17‐1121, 2017 WL 2590319 (2d Cir. June 14, 2017);
Spagnola v. Chubb Corp., 264 F.R.D. 76, 94‐95 (S.D.N.Y. 2010).
Plaintiffs contend – and UBS does not dispute – that the suitability
provisions in the proposed class members’ Client Agreements were
identical in all material respects. (See Pls.’ Mem. 17; Defs.’ Opp’n 1.) But
the parties differ with respect to how those provisions should be
interpreted and, specifically, whether and to what extent they are
informed by FINRA’s Suitability Rule and related guidance. (See Oral Arg.
31:6‐12 (“[I]t is unclear whether or not the FINRA suitab[ility] rules
themselves . . . apply to this case.”); Defs.’ Sur‐Reply 6 (“Plaintiffs have no
claim regarding whether UBS met its obligations to FINRA . . . .”).) UBS’s
refusal to concede the point is entirely perfunctory, but it nonetheless
preserves a concrete dispute that can be resolved across the proposed class
as a whole.
By contrast, for the reasons discussed infra, plaintiffs’ second and third
proposed questions – relating to whether UBS breached its duties to the
class members and what damages they suffered – are not capable of
classwide resolution, at least by any of the methods suggested by
plaintiffs.
Because the question regarding UBS’s duties to the proposed class
members pursuant to the Client Agreement is common to the class, the
UBS breach that obligation, and can damages be calculated on a common, classwide
basis. (See Pls.’ Oral Arg. Slides.) Because the four questions are essentially subparts
of the original “core question,” (Pls.’ Mem. 12), the Court considers them even though
they were not explicitly set forth in the briefing.
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Court finds that the proposed class meets the commonality requirement of
Rule 23(a)(2). See Wal‐Mart, 564 U.S. at 359 (“[F]or purposes of Rule
23(a)(2) ‘even a single common question’ will do.” (alterations omitted)
(quoting id. at 376 n.9 (Ginsburg, J., dissenting))).
C. Typicality: Rule 23(a)(3)
“To establish typicality under Rule 23(a)(3), the party seeking
certification must show that each class member’s claim arises from the
same course of events and each class member makes similar legal
arguments to prove the defendant’s liability.” Leber v. Citigroup 401(k) Plan
Inv. Comm., 323 F.R.D. 145, 162 (S.D.N.Y. 2017) (quoting In re Flag Telecom
Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009)); see also Adkins v.
Morgan Stanley, 307 F.R.D. 119, 138 (S.D.N.Y. 2015) (quoting Marisol A. v.
Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)), aff’d, 656 F. App’x 555 (2d Cir.
2016). “[A] class representative can establish the requisite typicality under
Rule 23 if the defendants ‘committed the same wrongful acts in the same
manner against all members of the class.’” Hevesi v. Citigroup Inc., 366 F.3d
70, 82‐83 (2d Cir. 2004) (quoting In re Prudential Sec. Inc. Ltd. P’ships Litig.,
163 F.R.D. 200, 208 (S.D.N.Y. 1995)).
Although “in certain ‘contexts the commonality and typicality
requirements . . . tend to merge,’” Sykes v. Mel S. Harris & Assocs. LLC, 780
F.3d 70, 84 n.2 (2d Cir. 2015) (alterations omtted) (quoting Wal‐Mart, 564
U.S. at 349 n.5), that is not always the case, see, e.g., Adkins, 307 F.R.D. at
138; Levitt v. PricewaterhouseCoopers, LLP, No. 04‐Cv‐5179, 2007 WL
2106309, at *2 (S.D.N.Y. July 19, 2007); Spann v. AOL Time Warner, Inc., 219
F.R.D. 307, 316 (S.D.N.Y. 2003). In some cases, as here, “the typicality
inquiry is also intertwined with . . . predominance under Rule 23(b)(3).”
Adkins, 307 F.R.D. at 138 n.19; see also Stream Sicav v. Wang, No. 12‐Cv‐6682,
2015 WL 268855, at *5 (S.D.N.Y. Jan. 21, 2015).
Here, as set forth in greater detail below, each proposed class
member’s claim arises from a course of events that is unique to that class
member. See Leber, 323 F.R.D. at 162. Put another way, the manner in
which UBS allegedly failed to perform a suitability analysis before
recommending a Fund to a proposed class member is different for each
class member. See Hevesi, 366 F.3d at 82‐83.
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Plaintiffs’ arguments to the contrary are the same as their arguments
for why UBS’s breach of its contractual suitability obligations to the
proposed class members can be established through generalized evidence.
However, for the reasons discussed infra, the Court finds that UBS’s
alleged breach is not susceptible to generalized proof.
Moreover, the fact that UBS’s alleged suitability failures were far from
uniform is reflected in the review conducted by plaintiffs’ own expert, in
which he concluded that UBS financial advisors failed to perform client‐
focused suitability analyses. For example, whereas one financial advisor
allegedly failed to perform a suitability analysis by “[c]onsider[ing the
client’s] primary objective, alternatives, and risk” but not considering
“liquidity needs, time horizon or other considerations,” another financial
advisor allegedly failed to perform a suitability analysis by “reviewing
liquidity, risk tolerance, and investment objectives” but not considering
“either tax status or alternative investments.” (Second Besnoff Report 35,
40.) Furthermore, the evidence bearing on whether a financial advisor
considered these factors and others is different for each plaintiff and
member of the proposed class – that is, a suitability analysis (or lack
thereof) for one plaintiff might be reflected in an email, or in a client note
for another plaintiff, or in testimonial evidence for a third, or some
combination of these and other evidence. See infra § E.1.b.i.
Accordingly, the Court finds that the typicality requirement is not
satisfied.
D. Adequacy: Rule 23(a)(4)
“Adequacy ‘entails inquiry as to whether: 1) plaintiff’s interests are
antagonistic to the interest of other members of the class and 2) plaintiff’s
attorneys are qualified, experienced and able to conduct the litigation.’” In
re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009)
(quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d
Cir. 2000)). With respect to the first element, “[t]he focus is on uncovering
‘conflicts of interest between named parties and the class they seek to
represent.’ In order to defeat a motion for certification, however, the
conflict ‘must be fundamental.’” Id. (first quoting Amchem Prods., Inc. v.
20
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Windsor, 521 U.S. 591, 625 (1997), then quoting In re Visa
Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir. 2001)).
UBS challenges the first element only, and it does so on the basis of its
contention that the named plaintiffs suffered no damages. However, the
Court is not persuaded that, at least on the facts of this case, such a conflict
is so “fundamental” as to contravene the adequacy requirement of Rule 23,
and UBS has cited no contrary authority.13
Because UBS has identified no fundamental conflict of interest between
the named plaintiffs and the proposed class, and because the Court is not
aware of any such conflict, the Court finds that the adequacy requirement
is satisfied.
E.
Predominance: Rule 23(b)(3)
“Class‐wide issues predominate if resolution of some of the legal or
factual questions that qualify each class member’s case as a genuine
controversy can be achieved through generalized proof, and if these
particular issues are more substantial than the issues subject only to
individualized proof.” Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d
Cir. 2002). “Rule 23(b)(3)’s predominance requirement is ‘more
demanding than [the] Rule 23(a)’” requirement of commonality. Johnson v.
Nextel Commc’ns Inc., 780 F.3d 128, 138 (2d Cir. 2015) (quoting Comcast
Corp. v. Behrend, 569 U.S. 27, 34 (2013)).
The Court has concluded, as set forth above, that the nature of UBS’s
duties to the proposed class members pursuant to the suitability provision
in the Client Agreement is a common issue that can be resolved through
generalized proof. However, for the reasons set forth below, the Court
also finds that single common issue is substantially outweighed by
The only case cited by UBS is both dissimilar and not binding. See Opiela v. Bruck,
139 F.R.D. 257, 261 (D. Mass. 1990). Animating the court’s concerns there was the fact
that the plaintiff sought to certify two classes, but had only suffered damages as a
member of one of them. The fundamental conflict identified by the district court was
that the plaintiff might favor the claims of one class – the one through which he might
recover damages – over the claims of the other. No such concerns are present here.
13
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numerous individual questions. See Spagnola v. Chubb Corp., 264 F.R.D. 76,
94‐95, 99 (S.D.N.Y. 2010) (finding, in putative class action for breach of a
uniform contract, that commonality was satisfied but predominance was
not). In particular, the issue of whether UBS breached the Client
Agreement by failing to perform any suitability analyses can only be
resolved on a client‐by‐client basis – or perhaps even on a transaction‐by‐
transaction basis. See Fernandez v. Wells Fargo Bank, N.A., Nos. 12‐Cv‐7193
and 12‐Cv‐7194, 2013 WL 4540521, at *14 (S.D.N.Y. Aug. 28, 2013)
(“Without meaningful evidence of a [company‐wide policy], a
determination of liability turns on highly individualized, employee‐by‐
employee analysis . . . .”).
1.
Individual questions with respect to breach
In order to succeed on their claims, plaintiffs will have to show by a
preponderance of the evidence that UBS breached its contractual
suitability obligations to the proposed class members by recommending
the Funds to them without first determining that they were suitable
investments. See Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d
42, 52‐53 (2d Cir. 2011).
A suitability determination is inherently individualized because each
investor had unique circumstances and objectives including risk tolerance,
cash flow and income needs, debts, net worth, total assets, tax needs,
investment time horizon, asset allocation, health, and investment
experience. (Defs.’ Opp’n 7 (citing financial advisor affidavits and
deposition testimony).) The individualized nature of the suitability
inquiry is reflected in the language of the Client Agreement itself, which
provides that suitability determinations must account for each client’s
“individual financial circumstances, needs, and goals.” (See, e.g., Account
Application 20, PX‐34; UBS Client Relationship Agreement and
Disclosures 50, DX‐30.)
Similarly, determining whether UBS failed to undertake a suitability
inquiry altogether, and whether a class member’s decision to purchase or
hold an investment in a Fund was pursuant to a recommendation from
UBS in the first place, are also individual questions.
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None of plaintiffs’ attempts to avoid these individual inquiries are
ultimately successful. According to plaintiffs, generalized proof will
establish that: (1) the Funds were unsuitable per se and therefore UBS
necessarily did not undertake any meaningful suitability analyses, (2) UBS
in fact undertook no client‐focused suitability analyses with respect to
proposed class members’ investments in the Funds, and (3) every decision
by a class member to purchase or hold an investment in a Fund during the
Class Period was pursuant to a recommendation by UBS.14
For the reasons set forth below, this generalized proof cannot answer
the putatively common question of whether UBS breached its suitability
obligations to members of the proposed class. As a result, that question
splinters into an enormous number of individual questions – potentially as
many as the number of purchase and hold decisions made by each
member of the proposed class during the Class Period. Accordingly, the
Court finds that classwide questions do not predominate over individual
questions as required by Rule 23(b)(3).
Plaintiffs’ views of UBS’s obligations pursuant to the Client Agreement – including
the separate requirements of product‐focused suitability and client‐focused suitability
– are informed by the FINRA suitability rule. As discussed above, the contract itself
does not expound upon UBS’s suitability obligations to its clients. For the purposes of
this motion, the Court assumes plaintiffs are correct that reference to FINRA guidance
is indeed appropriate. The Court is comfortable doing so because only plaintiffs have
offered a framework for interpreting the suitability provision: the FINRA rules on
suitability. UBS neither concedes that those rules “apply to this case,” (Oral Arg. 31:6‐
12), nor offers any argument for how the contract should or should not be interpreted.
Moreover, UBS, like plaintiffs, applies the FINRA rules in responding to plaintiffs’
arguments on this motion. In any event, it is certainly permissible for the Court to
reach this merits question at this stage because the Court cannot decide whether the
issue of UBS’s breach is resolvable through generalized proof without knowing what
UBS’s obligations were under the contract. See Sykes v. Mel S. Harris & Assocs. LLC, 780
F.3d 70, 75 (2d Cir. 2015) (at the certification stage, a district court should “only
resolve[] factual disputes to the extent necessary to decide the class certification
issue”).
14
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a.
Individual questions cannot be avoided by reference to product‐
focused suitability
A security is objectively unsuitable – unsuitable per se – if it would not
be suitable for any reasonable investor; so long as there is “some investor[]”
for whom a security is a suitable investment, that security is suitable per
se. (First Bullard Report ¶ 8 (quoting FINRA Rule 2111 supp. mat. 05(a))
(emphasis in original); Second Bullard Report ¶ 26 (same); Bullard Dep. at
96:23‐97:2 (“[Y]ou would have to have a reasonable basis that the
investment in and of itself would be reasonable for . . . some investor. In
my mind that would be one investor.”), DX‐19; Second Laursen Report
¶ 49 (“Even if a security could only be suitable in a small amount for
uncommon investors having very specific financial profiles and objectives
. . . the security‐specific [reasonable‐basis suitability] standard is
passed.”).)
Plaintiffs contend that generalized proof will demonstrate that the
Funds were not suitable per se, and that such evidence will therefore
generate a common answer to the question of whether UBS breached its
contractual obligation to plaintiffs. That is, if the Funds were not suitable
for any reasonable investor but UBS nonetheless recommended them, then
it is manifest that UBS did not undertake any meaningful suitability
analyses before making the recommendations, whether product‐ or client‐
focused.
As generalized proof in support of this theory, plaintiffs point to
evidence that: (1) the Funds were not structured in accordance with one of
their stated objectives (which plaintiffs contend made them inherently
unsuitable), and (2) individuals within UBS were concerned about the
Funds’ riskiness (which plaintiffs contend suggests that UBS did not
conduct any adequate product‐focused suitability analyses).
i.
Proof that the Funds were not structured in
accordance with one of two or more stated objectives
is not proof of inherent unsuitability
As noted, each of the Funds had two or more enumerated objectives set
forth in that Fund’s prospectus. (See Second Laursen Report app’x C tab.
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C.1 (collecting the stated objectives from each of the twenty Funds); see,
e.g., Puerto Rico Investors Tax‐Free Fund, Inc. Prospectus 5, DX‐36.) The
Funds all had one objective in common: preservation of capital. (First
Bullard Report ¶ 12; First Laursen Report ¶ 72.) All of the funds had at
least one other objective in addition to preservation of capital.
Plaintiffs contend that the Funds were not in fact structured in
accordance with the capital preservation objective and that the Funds were
therefore inherently unsuitable. Apart from that objective, plaintiffs do
not contend that the Funds were structured inconsistently with any of the
Funds’ other stated objectives, or with each Fund’s set of objectives
collectively.
According to UBS, this limitation is fatal to plaintiffs’ position.
Specifically, UBS contends that a Fund which is not suitable for one
enumerated objective may nonetheless be suitable for another enumerated
objective (or with the Fund’s objectives collectively), and therefore, there is
at least “some investor” for whom a security is a suitable investment. If
defendants are correct, then evidence that the Funds were not structured
in accordance with the preservation‐of‐capital objective cannot establish
that the Funds were unsuitable per se, and therefore cannot generate a
common answer to the question of whether UBS breached its contractual
obligation to plaintiffs.
There is some evidence that FINRA deems a security’s consistency
with its enumerated objectives to be a factor that is at least relevant to the
product‐focused suitability analysis. (Second Bullard Report ¶¶ 29, 31; see
also Pls.’ Reply 7 n.21.) Citing this evidence, plaintiffs’ reasonable‐basis
suitability expert makes the logical leap to conclude that a security’s
consistency with its enumerated objectives is a requirement to satisfy
reasonable‐basis suitability. (First Bullard Report ¶¶ 11‐12; Second
Bullard Report ¶¶ 25‐32.) Plaintiffs’ expert then makes one further leap of
logic to conclude that a security with multiple enumerated objectives is
unsuitable per se if it is inconsistent with any one of its objectives. (Id.)
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UBS objects to both leaps,15 but it is the second one that the Court
focuses on. According to defendants’ reasonable‐basis suitability expert, it
would be illogical to elevate one of the Funds’ stated objectives for
evaluation in isolation because “the different portions of the investment
objectives . . . pose some conflict with one another.” (Second Laursen
Report ¶ 121.) Defendants’ expert explained the possible “tension”
between the income generation and capital preservation objectives in
particular:
[I]f a fund seeks to achieve an objective of the “highest
possible income,” a “high level of current income,” or even
simply “current income,” this would normally reduce the
fund’s probability of meeting the “capital preservation”
portion of the objective. . . . The tension between the
various primary “income”‐related and secondary (“capital
preservation”) investment objectives clearly indicate[s] that
a Fund would, within the context of its stated investment
policies, likely seek to construct portfolios that achieve a
balance.
(Id.)
The Court agrees with Mr. Laursen. It would be illogical to determine
whether the Funds were suitable per se by examining their compatibility
with a single objective – preservation of capital – in isolation, and plaintiffs
cite no evidence that this standard has ever actually been applied in the
real world.
Accordingly, evidence that the Funds were not structured in
accordance with the preservation‐of‐capital objective would not prove that
the Funds were unsuitable per se, and therefore cannot generate a
UBS also disputes the contention that the Funds were in fact inherently inconsistent
with the preservation‐of‐capital objective in the first place.
15
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common answer to the question of whether UBS breached its contractual
obligation to plaintiffs.16
ii.
Proof that individuals within UBS were concerned
about the Funds’ riskiness is not proof that UBS
failed to conduct any product‐focused suitability
analyses
Plaintiffs’ remaining evidence with respect to product‐focused
suitability reflects that: (1) in 2009, UBS reduced its own holdings of the
funds pursuant to a global UBS policy to rein in risk exposure in light of
the 2008 financial crisis (see Pls.’ Mem. 7), and (2) in 2011, in response to
specific concerns about the Funds that were raised by a group of UBS
financial advisors at one branch office, the CEO of UBS Puerto Rico visited
that office and told the financial advisors that they should “go home [and]
get a new job” if they could not continue selling the Funds, (see id. 7‐8).
At most, this is generalized proof that individuals within UBS had
concerns about the riskiness of the Funds and recommended them to
clients anyway. But as plaintiffs’ reasonable‐basis suitability expert
admits, even “riskier investments . . . make sense,” as long as “there is a
commensurate expectation of greater returns.” (First Bullard Report ¶ 16;
see also id. ¶ 18 (“[Even] a so‐called ‘junk’ (high‐yield) bond, for example,
can be a rational investment because investors are compensated for taking
greater risk by a higher expected return.”).) But plaintiffs offer no
evidentiary proof whatsoever with respect to Funds’ expected return
relative to their riskiness.
Furthermore, with respect to UBS’s reduction of its own holdings,
plaintiffs’ own expert testified that this was of “limited relevance.”
Plaintiffs’ alternative theory – that the Funds were unsuitable per se because their
risk‐return ratio made them economically irrational investments – is not supported by
any “evidentiary proof” whatsoever, and is therefore disregarded on this motion.
Johnson, 780 F.3d at 138 (quoting Comcast, 569 U.S. at 33). The Court notes that
plaintiffs’ reasonable‐basis suitability expert makes no suggestion that the Funds were
in fact irrational, (First Bullard Report ¶¶ 5‐6, 14‐21, 39‐41), and that aspect of his
opinion is abandoned altogether in his second report.
16
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(Bullard Dep. 231:21‐232:1.) That is hardly surprising, as there is no
evidence that the Funds were unloaded based on anything other than their
riskiness pursuant to UBS’s general policy at that time to reduce holdings
in risky investments. As plaintiffs’ client‐focused suitability expert admits,
a security being excessively risky for one investor is not itself proof that
the security is excessively risky (or unsuitable) for all investors. (See First
Besnoff Report 10 (listing factors to be considered in a client‐focused
suitability determination including “risk tolerance”).) It is not apparent
why that would be any less true where the investor is UBS itself.
Accordingly, evidence that individuals within UBS were concerned
about the Funds’ riskiness would not prove that UBS failed to conduct any
product‐focused suitability analyses, and therefore cannot generate a
common answer to the question of whether UBS breached its contractual
obligation to plaintiffs.
b.
Individual questions about client‐focused suitability cannot be
avoided through plaintiffs’ statistical proof or other evidence
Plaintiffs contend that generalized proof will show that UBS also
breached the client agreement by failing to undertake any client‐focused
suitability analyses before recommending the Funds to the proposed class
members.
A client‐focused suitability analysis is necessarily individualized,
requiring consideration of, among other things, the client’s age, assets, tax
status, annual income, net worth, investment objectives, risk tolerance,
liquidity needs, and concentration of investments. (First Besnoff Report
10; see also First Maine Report 5 (“Customer‐specific suitability is an
individualized concept based upon the unique profile of each client.”).)
Nonetheless, plaintiffs contend that generalized proof will demonstrate
that UBS failed to conduct any meaningful client‐focused suitability
analyses, and that such evidence will therefore generate a common answer
to the question of whether UBS breached its contractual obligation to
plaintiffs. As common evidence in support of this theory, plaintiffs point
primarily to the Besnoff Study of 500 sample client accounts that held
Funds during the class period. Plaintiffs contend UBS did not conduct a
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meaningful suitability analysis in connection with any of the 500 accounts
in the sample. Apart from the Besnoff Study, plaintiffs point to evidence
that UBS excluded the Funds from a system of internal controls that,
among other things, monitored client accounts for overconcentration.
i.
The Besnoff Study: Proof that financial advisors
failed to document each reason for their suitability
determinations is not proof that they failed to
conduct any suitability analyses
The Besnoff Study concluded that UBS had not conducted any
meaningful client‐focused suitability analyses whatsoever for any of the
accounts in the 500‐account sample with respect to their investments in the
Funds. In reaching this conclusion, the study reviewed only documentary
evidence. According to plaintiffs and their expert, this limitation is
appropriate because UBS and its financial advisors were required to
document their suitability analyses pursuant to FINRA regulations,
internal company policy, and industry “best practices.” (Pls.’ Reply 8‐9.)
Whether or not there was a documentation requirement, the one
applied in the Besnoff Study is extraordinarily rigorous – and has no
support in the record (except, perhaps, as what Besnoff himself claims to
have required of financial advisors he once supervised). (See Second
Besnoff Report 32‐33; see also generally Paulukaitis Report.) According to
the documentation requirement Besnoff applied, UBS’s financial advisors
had to document their suitability determination together with all of the
reasons underlying that determination, including express consideration of
each factor that FINRA deemed relevant to the client‐focused suitability
determination. Where a financial advisor documented a suitability
determination, and even documented her or his consideration of some of
the suitability factors – but not others – the Besnoff Study concluded that
the financial advisor had not conducted any meaningful client‐focused
suitability analysis at all. That conclusion is not credible.
Two examples suffice to illustrate the point: Upon review of two notes
recorded by financial advisors in UBS’s client management system
regarding recommendations made to specific clients to purchase or hold
the Funds, the Besnoff Study concluded that neither note reflected that the
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financial advisor undertook a client‐focused suitability analysis. (Second
Besnoff Report 35; id. at 40.) The notes, which are printed in full below,
were recorded by different financial advisers regarding different clients;
one was recorded in December of 201217 and the other in September of
2013.18
As translated into English, the December 2012 note reads:
17
I met with [the client], in my office, and did a complete review of all
his accounts. I told him that I think the value of the POB and the
funds would keep going down before they came up but that the
dividend and interest would remain intact. Given that the
fundamental objective is income, I didn’t recommend he sell. I told
him that even if they keep going down, the monthly payment
would be maintained and if he wants to sell now he would receive
less than what he invested and alternative investments would pay
less than what he is currently receiving. After talking about the
risks and benefits he decided not to do anything and continue as is.
He knows that the value could go down but doesn’t think that the
bonds could stop paying dividends and the principal on maturity.
He knows the POB matures in 2038 and that the funds don’t have a
maturity date.
(CRM Data 1 (UBS10000986), Row 232 (emphasis omitted), DX‐55.)
The September 2013 note reads:
18
Spoke with [client] today regarding the decline in value of his
investments. He wanted to get an idea of where his investment was
headed given the volatility so as to make certain investment
decisions. I could not give him any assurance as to where the
investment was head[e]d. However our discussion revolved
around his original intention in making this investment and his
current financial situation. His financial situation is very healthy
with enough cash reserves and income to sustain the current
market environment. Additionally, he will be retiring soon and will
be receiving a substantial amount of pension income that will be
complemented by other investments. My question to him was: Has
his original objective changed or does he need the principal, his
answer was no. Does he have the patience to withstand this
volatility and he said yes. So based on that assessment he decided
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With respect to the December 2012 note, the Besnoff Study found that
although it “[c]onsidered primary objective, alternatives, and risk . . . there
is no documentation regarding liquidity needs, time horizon or other
considerations.” (Id. at 35.) As for the September 2013 note, although it
“review[ed] liquidity, risk tolerance, and investment objectives . . . there
does not appear to be any consideration of either tax status or alternative
investments.” (Id. at 40.)
In sum, the Besnoff Study is not an acceptable measure of whether UBS
financial advisors conducted client‐focused suitability analyses because
there is no evidence supporting Besnoff’s position that each suitability
analysis required express consideration and documentation of every single
factor FINRA deemed relevant.
In addition, UBS’s rebuttal expert quite reasonably concluded that the
December 2012 and September 2013 notes both did “contain[] evidence of
the [financial advisor]’s customer‐specific suitability determination,”
(Second Maine Report 84‐85, 99‐100), and reached similar conclusions with
respect to other documents in the record, (id. App’x A (client management
notes), B (emails), C (client presentations), D (financial goal analysis
reports)). As a result, use of the 500‐account sample would necessitate
numerous mini‐trials to determine whether or not an adequate client‐
focused suitability analysis was performed with respect to each purchase
or hold recommendation in every account in the sample.
Plaintiffs have not suggested a judicially administrable means of
accomplishing this, but instead argue that “use of the sample no more
necessitates 500 mini‐trials here than did the use of representative
[that] he could maintain the investment. As a[] result of this
conversation, he has decided to bring in an additional $60,000
resulting from stock sales and $40,000 in cash value of his life
insurance and about $20,000 he has in a non‐performing CD
account. Also, when he retires in 3 years he plans to rollover
$300,000+ in his 401K. [W]e will meet this [F]riday to implement a
strategy to diversify his current portfolio with new funds.
(CRM Data 4 (UBS10000989), Row 115, DX‐58.)
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evidence require multiple mini‐trials in Tyson Foods v. Bouaphakeo, 136 S.
Ct. 1036, 1043‐49 (2016).” (Pls.’ Sur‐Reply 5 n.8.)
In Tyson Foods, however, the employer had no records at all of the
time employees spent donning and doffing protective gear, so the
plaintiffs took “744 videotaped observations” as a sample of “how long
various donning and doffing activities took.” Tyson Foods, 136 S. Ct. at
1043‐44. Apart from that sample, “there were no alternative means for the
employees to establish their hours worked.” Tyson Foods, 136 S. Ct. at
1047; see id. (noting that the employer’s “primary defense was to show that
[the study itself] was unrepresentative or inaccurate”). By contrast, the
record here reflects a substantial number of documents bearing on
whether suitability analyses were performed (that is, the same kinds of
documents produced in the sample), which could serve as fodder for 500
mini‐trials.
Accordingly, the Besnoff Study is not proof that UBS failed to conduct
any client‐focused suitability analyses, and therefore cannot generate a
common answer to the question of whether UBS breached its contractual
obligation to plaintiffs and the proposed class.19
Separately, it is not clear whether the Besnoff Study is even proper evidence of
classwide liability in light of Tyson Foods, 136 S. Ct. 1036, and Wal‐Mart, 564 U.S. 338.
According to the Supreme Court, “[o]ne way [to show that a sample] is a permissible
method of proving classwide liability is by showing that each class member could
have relied on that sample to establish liability if he or she had brought an individual
action.” Tyson Foods, 136 S. Ct. at 1046‐47. This standard from Tyson Foods has rarely
been invoked in this circuit, and no court in this circuit has ever disregarded a sample
because a class plaintiff failed to meet it. But see Perez v. Isabella Geriatric Ctr., Inc., No.
13‐Cv‐7453, 2016 WL 5719802, at *4 (S.D.N.Y. Sept. 30, 2016) (finding that a statistical
sample could be used to demonstrate predominance under Tyson Foods). Cf. Chen‐
Oster v. Goldman, Sachs & Co., 325 F.R.D. 55, 82‐83 (S.D.N.Y. 2018). Plaintiffs here cite
no basis for their position that each class member could have relied on the Besnoff
Study to establish liability if she or he had brought an individual action for breach of
the Client Agreement. It may be that there are certain contexts where a breach of
contract plaintiff could use a sample to prove liability in an individual action, see, e.g.,
Ret. Bd. of the Policemenʹs Annuity & Benefit Fund of the City of Chicago v. Bank of N.Y.
Mellon, 775 F.3d 154, 162‐63 & n.6 (2d Cir. 2014) (citing Assured Guar. Mun. Corp. v.
19
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ii.
Proof that UBS excluded the Funds from a system of
internal controls is not proof that UBS failed to
consider concentration before recommending the
Funds to plaintiffs
Plaintiffs’ remaining evidence with respect to client‐focused suitability
is that UBS excluded the Funds from the BMSS system. As noted, BMSS is
a system of internal controls that, among other things, monitored client
accounts for overconcentration. Both parties recognize that concentration
is one of the factors to be considered in a client‐focused suitability analysis.
(See Second Besnoff Report 29 (“Suitable investments can become
unsuitable when they constitute too large a portion of a client’s portfolio.”
(quoting UBS Sales Practice Compliance Manual 60 (July 2008))).)
However, the evidence reflects that UBS had other systems in place
apart from BMSS to alert its financial advisors to possible
overconcentration, and that these systems monitored the Funds. (Second
Maine Report 45‐47, 49 (describing monitoring by the Compliance
Surveillance Unit and Legal & Compliance, and reviews by branch office
managers).) And beyond a system of alerts, UBS expected its financial
advisors to review client accounts for overconcentration regularly – and
prior to making an investment recommendation – and there is evidence
that they did so with respect to the Funds. (Id. 47; see, e.g., Email re:
“Account analysis” (July 25, 2013), DX‐48; Second Maine Report 115‐21
(describing emails to clients at UBS402209‐12, UBS124036‐42, UBS79566).)
That financial advisors were not alerted to possible overconcentration of
the Funds – an alert that would necessarily have been backward‐looking,
after a recommendation was made and the Fund purchased or held (see
Second Maine Report 45 (quoting Ubinas Dep. at 268:12‐269:6)) – is not
evidence that financial advisors failed to consider concentration in
conducting their suitability analyses.
Accordingly, evidence that UBS excluded the Funds from the BMSS
system does not establish by itself that UBS failed to conduct any adequate
Flagstar Bank, FSB, 920 F. Supp. 2d 475, 486‐87, 512 (S.D.N.Y. 2013)), but plaintiffs have
not called any to the Court’s attention or explained how they apply to the facts of this
case.
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client‐focused suitability analyses, and therefore cannot generate a
common answer to the question of whether UBS breached its contractual
obligation to plaintiffs.20
c.
Plaintiffs cannot avoid individual questions by deeming every
decision by a class member to purchase or hold an investment
in a Fund to have been pursuant to a recommendation by UBS
UBS’s Client Agreement provided that: “We must have a reasonable
basis for believing that any securities recommendations we make to you are
suitable and appropriate for you . . . .” (E.g., Account Application 20
(emphasis added).) The FINRA Suitability Rule is phrased similarly.
FINRA Rule 2111(a) (requiring “a reasonable basis to believe that a
recommended transaction . . . is suitable for the customer”). Accordingly,
UBS contends that “[d]etermining whether UBS ‘recommended’ a
transaction” – or whether it was unsolicited – “presents an[]
individualized question.”21 (Defs.’ Opp’n 24.)
Plaintiffs contend that all Funds purchased during the class period
were “recommended” by UBS because “UBS brought the [Funds] to class
members’ attention, and encouraged them to buy, . . . through
advertisements, publishing Fund prices and yields in local newspapers,
investor conferences, public websites, client flyers and quarterly reports.”
(Pls.’ Reply 12 n.42; see also Oral Arg. 56:7‐9 (“[W]e think [the Funds] were
recommended to everyone on the island of Puerto Rico . . . .”).) Plaintiffs’
expansive interpretation of the word “recommend” is apparently
Plaintiffs also cite statements contained in defendants’ regulatory settlements as
proof that UBS failed to meet its suitability obligations. That evidence of settlements
will not be considered at this juncture. See Fed. R. Evid. 408.
20
Plaintiffs note that 83 percent of Fund purchases during the class period were
marked by UBS as “solicited” in client account records (Pls.’ Reply 12 n.42), and
defendants do not dispute that these purchases were in fact recommended (see Defs.’
Sur‐Reply 8 n.12). Accordingly, the dispute regarding whether UBS made a
“recommendation” with respect to the Funds is limited to the 17 percent of Fund
purchases marked as “unsolicited” by UBS, as well as any recommendations by UBS
to “hold” – that is, to not sell – the Funds. (See Defs.’ Opp’n 24‐25; Defs.’ Sur‐Reply 8
n.12.)
21
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premised on regulatory guidance issued by NASD, which provides that a
“transaction will be considered to be recommended when [UBS] brings a
specific security to the attention of the customer through any means,
including, but not limited to direct telephone communication, the delivery
of promotional material through the mail, or the transmission of electronic
messages.” (Pls.’ Reply 12 n.42 (quoting NASD Notice to Members 96‐60
at 473‐74 (Sept. 1996), PX‐74).)
Plaintiffs stretch the language of the NASD guidance too far, as there is
nothing to suggest that NASD intended that “recommend” encompassed
communications directed to the public at large. Plaintiffs have not cited
any authority in support of their interpretation, which contravenes more
recent FINRA guidance, which provides that “the more individually
tailored the communication is to a particular customer or customers about
a specific security or investment strategy, the more likely the
communication will be viewed as a recommendation.” (FINRA
Regulatory Notice 11‐02 at 3 (Jan. 2011), DX‐73.)22
In fact, both the NASD guidance and the FINRA guidance support
UBS’s contention that whether UBS recommended a transaction presents
an individualized question. (See FINRA Regulatory Notice 11‐02 at 2
(“The determination of the existence of a recommendation [is] based on
the facts and circumstances of the particular case.”); NASD Notice to
Members 96‐60 at 473‐74 (“[A] broad range of circumstances may cause a
transaction to be considered recommended . . . .”).)
Accordingly, whether a transaction was recommended such that UBS’s
suitability obligations arose pursuant to the Client Agreement is an
individualized question.
2.
Individual questions with respect to causation
Under New York law “[c]ausation is an essential element of damages
in a breach of contract action; and, as in tort, a plaintiff must prove that a
UBS also contends that certain of its public‐facing communications were labeled for
“informational purposes only” and not “solicitation.” (Defs.’ Sur‐Reply 8 n.12 (citing
Our Best Credential Is Our Results (Mar. 31, 2011), DX‐71).)
22
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Case 1:15-cv-02859-SHS Document 252 Filed 09/17/18 Page 36 of 40
defendant’s breach directly and proximately caused his or her damages.”
Diesel Props, 631 F.3d at 52–53 (emphasis in original) (quoting Nat’l Mkt.
Share, 392 F.3d at 525).
According to UBS, plaintiffs cannot make out the necessary element of
causation without proving that their investments in the Funds were
actually unsuitable – an issue that is not susceptible to generalized proof.
Plaintiffs do not respond to this apart from contending that “[c]lass
members were . . . deprived of adequate suitability analyses and, as such,
they became invested in Funds that were unsuitable per se, which caused
them to suffer damages.” (Pls.’ Reply 12‐13.)
In the Court’s decision denying UBS’s motion to dismiss, it relied on
plaintiffs’ clarification that “the theory underlying their claim is not a
standard suitability claim – i.e., that an investment was not suitable – but
rather simply that defendants were obligated to conduct a suitability
analysis and failed to conduct any such analysis, regardless of whether the
investment was suitable or not.” Fernandez, 222 F. Supp. 3d at 389.
However, the issue of whether plaintiffs would have to prove causation –
and what it would take for them to do so – was not presented to or
considered by the Court at that time. See id. (See also Memoranda of Law,
ECF Nos. 91, 99, 108.)
In the absence of any meaningful reply from plaintiffs, the Court finds
that UBS is correct that plaintiffs cannot prove the necessary element of
causation without proving that the Funds were actually unsuitable for
them. The element of causation, therefore, is another “issue[] subject only
to individualized proof.” Moore, 306 F.3d at 1252.
3.
Individual questions with respect to affirmative defenses
Individual and affirmative defenses, “are ‘factors that [a court] must
consider in deciding whether issues susceptible to generalized proof
outweigh individual issues,’ even though ‘standing alone, they are not
sufficient to defeat class certification.” Johnson, 780 F.3d at 138 (internal
quotation marks and alterations omitted) (quoting McLaughlin v. Am.
Tobacco Co., 522 F.3d 215, 231 (2d Cir. 2008), abrogated on other grounds by
Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008)).
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According to UBS, some members of the proposed class opted to hold
their investments in the Funds in the face of a recommendation to sell.
Similarly, according to UBS, members of the proposed class were
“obligated to alert their broker if they believe[d] their investment [was]
unsuitable.” (Id. 26 (“An investor cannot take a ‘heads I win, tails you lose
approach’ by waiting to see how his investment performs.” (citing Altschul
v. Paine, Webber, Jackson & Curtis, Inc., 518 F. Supp. 591, 594 (S.D.N.Y.
1981))).)
UBS contends that these class members would be individually subject
to affirmative defenses such as failure to mitigate and duty to object,
which would require individualized proof. (Id.) Plaintiffs do not disagree,
but simply contend that such issues should not on their own preclude
certification of the class. (Pls.’ Reply 14.)
Accordingly, UBS’s affirmative defenses are another “issue[] subject
only to individualized proof.” Moore, 306 F.3d at 1252.
4.
Individual questions with respect to damages
The parties agree that the proper measure of damages in this action is
“market‐adjusted damages” or “well‐managed account damages” – that is,
(1) “what [an investor] would have received if the account had been
properly managed,” less (2) “what she actually received from the
investment at issue.” (Pls.’ Mem. 22 & n.56; Defs.’ Opp’n 27.) The parties
do not agree that market‐adjusted damages can be measured classwide in
this action, but plaintiffs, via their damages expert, have put forward a
model which they contend can do just that. (See First Mason Report;
Second Mason Report.)
“[A] model purporting to serve as evidence of damages in [a] class
action must measure only those damages attributable to” the theory of
liability advanced in that action. Comcast, 569 U.S. at 35; see also Roach v.
T.L. Cannon Corp., 778 F.3d 401, 407 (2d Cir. 2015) (“[A] model for
determining classwide damages relied upon to certify a class under Rule
23(b)(3) must actually measure damages that result from the class’s
asserted theory of injury . . . .”); Rodriguez v. It’s Just Lunch Int’l, No. 07‐Cv‐
9227, 2018 WL 3733944, at *4‐5 (S.D.N.Y. Aug. 6, 2018). “If the model does
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Case 1:15-cv-02859-SHS Document 252 Filed 09/17/18 Page 38 of 40
not even attempt to do that, it cannot possibly establish that damages are
susceptible of measurement across the entire class for purposes of Rule
23(b)(3).” Comcast, 569 U.S. at 35.
In this action, plaintiffs’ theory of liability is that “defendants were
obligated to conduct a suitability analysis and failed to conduct any such
analysis.” Fernandez, 222 F. Supp. 3d at 389. Accordingly, the proper
measure of market‐adjusted damages is (1) what clients would have
received if UBS had performed a suitability analysis and recommended a
suitable investment, less (2) what they actually received from their
investments in the Funds.
Plaintiffs’ model, however, “does not even attempt to” measure the
damages attributable to their theory of liability. Comcast, 569 U.S. at 35.
Rather, they “propose ‘no damages model at all’ that is linked to their
theory of liability,” It’s Just Lunch, 2018 WL 3733944, at *5 (quoting In re
ConAgra Foods, Inc., 302 F.R.D. 537, 552 (C.D. Cal. 2014)), for at least two
reasons.
First, under plaintiffs’ theory of liability, a class member suffered no
damage as a result of any breach if the Funds were actually suitable for
them at the time they were recommended. Plaintiffs’ model, however,
does not even attempt to measure whether the Funds were actually
suitable for any members of the proposed class. (See First Laursen Report
¶ 157; Second Okongwu Report ¶ 15.) Absent an appropriate model, the
question of whether the Funds were actually suitable for a particular client
is clearly an individualized one.
Second, to the extent the Funds were not actually suitable for members
of the proposed class, plaintiffs’ model does not attempt to measure the
minuend of the market‐adjusted damages formula outlined above – that is,
what clients would have received if UBS had performed a suitability
analysis and recommended a suitable investment. See Comcast, 569 U.S. at
35; It’s Just Lunch, 2018 WL 3733944, at *5. In order to measure that, “one
would have to understand the type of investment that each client would
have invested in had UBS performed a ‘suitability analysis’ for that client.”
(Second Okongwu Report ¶ 19.) That is, one would essentially have to
perform a retrospective suitability analysis for each client. (See First
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Case 1:15-cv-02859-SHS Document 252 Filed 09/17/18 Page 39 of 40
Laursen Report ¶ 142 (“[A] proper suitability analysis for each investor at
each investment decision point during the . . . Class Period must be
undertaken.”).) As plaintiffs make clear (and defendants agree), a
suitability analysis requires consideration of many client‐specific factors
including, without limitation, the client’s age, assets, tax status, annual
income, net worth, investment objectives, risk tolerance, liquidity needs,
investment time horizon, and concentration of investments – all as of the
date of the recommendation. (Second Besnoff Report 28.)
Plaintiffs’ model endeavors to avoid such highly individualized
determinations by proposing “alternative benchmark investments” that (1)
had risk/return profiles similar to those that the Funds were represented to
have, and (2) that were in fact structured in accordance with the
preservation‐of‐capital objective. (First Mason Report ¶¶ 45‐52; Second
Mason Report ¶¶ 69‐80.) However, plaintiffs do not contend that the
benchmark investments would have been suitable for members of the
proposed class, or even that it would be possible to find benchmarks that
would have been uniformly suitable.
Furthermore, as set forth in truly fulsome detail above, a meaningful
client‐focused suitability analysis requires consideration of far more than a
client’s risk tolerance and objective of preserving capital – the criteria used
to select benchmarks in plaintiffs’ model. Indeed, the “members of the
proposed class had a variety of different investment profiles during the
proposed Class Period. They had different reported levels of annual
income, net worth, . . . liquidity needs[,] . . . stated investment objectives
and risk tolerances,” among other things. (Second Okongwu Report ¶ 21.)
The Court concludes that the manner in which plaintiffs propose to select
benchmark investments would almost certainly not satisfy the
requirements of their own client‐specific suitability expert. (See Second
Besnoff Report 28‐30.)
Accordingly, because plaintiffs “propose ‘no damages model at all’
that is linked to their theory of liability,” It’s Just Lunch, 2018 WL 3733944,
at *5 (quoting ConAgra Foods, 302 F.R.D. at 552), the measure of damages is
yet another “issue[] subject only to individualized proof,” Moore, 306 F.3d
at 1252.
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F.
Superiority
The superiority requirement asks a court to consider whether "a class
action is superior to other available methods for fairly and efficiently
adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
As far as the Court is aware, this is not a case where members of the
proposed class will be left without a remedy if the class is not certified,
because they may arguably pursue their individual claims in FINRA
arbitrations if they so choose. 23 However, because the proposed class fails
to satisfy the predominance and typicality requirements of Rule 23, the
Court need not - and does not - determine that FINRA arbitrations are
superior to a class action.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the sole question of
law or fact common to members of the proposed class is significantly
outweighed by a number of questions affecting only individual members.
Accordingly plaintiffs' motion for class certification (ECF No. 174) is
DENIED, and defendants' Daubert motion (ECF No. 200) is DISMISSED as
moot.
Dated: New York, New York
September 17, 2018
SO ORDERED:
Sidney
According to UBS, members of the proposed class have already brought claims
against UBS in more than 1,720 individual FINRA arbitrations based on their
investments in the Funds, and new claims continue to be filed against UBS. (Defs.'
Opp'n 29.)
23
40
/
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