Huang v. EZCORP, Inc. et al

Filing 54

ORDER GRANTING IN PART AND DENYING IN PART 50 Motion to Dismiss. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

WU WINFRED HUANG and JOHN
ROONEY, Individually and on Behalf of
All Others Similarly Situated,
Plaintiffs,

17

1

"

-8 A1
..

TEXAS

O

CLL

CAUSE NO.:
A-15-CA-00608-SS

-vs-

EZCORP, INC. and MARK E.
KUCHENRITHER,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendants EZCORP, Inc. and Mark Kuchenrither (Defendants)' Motion to

Dismiss [#50], Co-Lead Plaintiffs Wu Winfred Huang and John Rooney's Response [#52] in
opposition, and Defendants' Reply [#53] in support. Having reviewed the documents, the

arguments of the parties at the hearing, the governing law, and the file as a whole, the Court now
enters the following opinion and order.

Factual Background1
As recounted in the Court's October 18, 2016 Order, this is a securities fraud class action

brought on behalf of all persons who purchased Class A common

stock2

of Defendant EZCORP,

The following is taken from the allegations in Plaintiffs' Second Amended Complaint [#47] (SAC),
except as otherwise indicated. Thus, the facts are stated in the light most favorable to Plaintiffs. This is so because
when "faced with a Rule 1 2(b)(6) motion to dismiss a § 10(b) action, courts must, as with any motion to dismiss for
failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true."
Tellabs, Inc. v. Malcor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although, in the interest of brevity, every
allegation in the SAC is not recounted here, the Court is mindful of its duty to consider "the complaint in its
entirety," id., and has done so.
1

2

CCCURT

r

-

10:

Inc., a company which provides "instant cash" services like payday loans and pawn loans,

between November 7, 20l3, to October 20, 2015 (the Class Period). Co-Lead Plaintiffs Wu
Winfred Huang and John Rooney, on behalf of the plaintiff class, allege that during the Class
Period, Defendant Mark Kuchenrither, EZCorp's CFO, CEO, and the only individual

made material misrepresentations to shareholders in violation of

§§

defendant,4

10(b) and 2 0(a) of the

Securities Exchange Act of 1934 and SEC Rule lOb-5.

Defendants have moved to dismiss the SAC, arguing Plaintiffs have failed to plead facts
giving rise to a strong inference of scienter. The Court agrees with Defendants in part and

therefore grants Defendants' motion to dismiss in part.
I.

EZCORP's Acquisition of Grupo Finmart
EZCORP provides customers with multiple ways to access instant cash through pawn and

consumer loans in the United States, Mexico, and Canada, as well as through fee-based credit
services. SAC [#47] ¶ 2. In addition, at its pawn stores and online, EZCORP sells collateral

forfeited from pawn lending operations and used merchandise purchased from customers. Id.
On January 12, 2012, EZCORP announced it was acquiring a 60% ownership interest in
Grupo Finmart, a Mexican company which issues small consumer loans to Mexican

governmental employees. Id. ¶ 4. According to EZCORP,
EZCORP has two classes of common stock, Class A Non-Voting Common Stock, which is publicly
on the NASDAQ, and Class B Voting Stock, all of which is beneficially owned by Phillip E. Cohen. SAC
traded
[#47] 11 33.
2

Plaintiffs amended the Class Period to begin on November 7, 2013, the day EZCORP reported its fiscal
year-end 2013 financial results. SAC [#47] ¶ 1.

Kuchenrither has served in several executive positions for EZCORP from the time he was hired as Senior
Vice President, Strategic Development in March 2010. SAC [#47] ¶ 34. In October 2012, Kuchenrither assumed the
role of CFO, and served as EZCORP's CFO until May 26, 2015. Id. ¶J 34, 149. Kuchenrither also served as
EZCORP's CEO from July 18, 2014, to February 1, 2015, and as a director from August 12, 2014, to February 3,
2015. Id. ¶ 34. Moreover, Kuchenrither was appointed as a member of both EZCORP's and Grupo Finmart's Board
of Directors during the Class Period. Id. ¶ 5.

2

Grupo Finmart enters into payroll withholding agreements ("convenios") with
Mexican employers, primarily federal, state and local governments and agencies,
and provides unsecured, multiple-payment consumer loans to employees of those
various employers. Interest and principal payments are collected by the employers
through payroll deductions and remitted to Grupo Finmart.
Id. ¶ 99 (quoting May 20, 2015 Form 8-K). EZCORP has described Grupo Finmart's role in

Mexico's payroll lending industry:
The unsecured payroll lending industry in Mexico is less developed than other
Latin American countries. Payroll lending in Mexico is generally marketed to
public sector employees, who on average earn more and rotate less frequently
than their private sector peers. Additionally, government entities tend to be more
stable and on average have more employees than p.rivate companies. It is
estimated that less than 15% of the market potential is being serviced. Grupo
Finmart is the fifth largest vertically integrated payroll lender in Mexico with 53
branch offices located in 24 of the 32 states in the country.
Id.

¶43 (quoting 2014 Form 10-K).
On June 30, 2014, EZCORP acquired an additional 16% of Grupo Finmart's ordinary

shares. Id. ¶ 4. On September 1, 2015, EZCORP increased its ownership position in Grupo

Finmart by 18%, thereby making it a 94% owner of Grupo Finmart. Id. EZCORP now consists

of three segments: (1) the United States and Canada segment, (2) the Latin America segment,
and (3) the Other International segment. Id. ¶ 42.

II.

EZCORP's Alleged Accounting Deficiencies
Plaintiffs allege that throughout the Class Period, EZCORP's lack of internal controls

over its financial reporting gave rise to two primary accounting errors: (1) the failure to properly
account for the sale of certain non-performing loans to third parties (Loan Sales), and (2) the

failure to properly account for Grupo Finmart's non-performing payroll loans (Non-Performing
Loans). As alleged in the SAC, Non-Performing Loans are "loans that were being carried as

active loans but with respect to which Grupo Finmart was not currently receiving payments." Id.

¶ 99. Out-of-payroll loans are outstanding loans from customers who are no longer employed. Id.
3

"Under Grupo Finmart's historic accounting policy," "[i]f one payment of an out-of-payroll loan
is delinquent, that one payment is considered in default;

if two or more payments are delinquent

at any time, the entire loan is considered in default." Id. Upon default

of an out-of-payroll loan,

EZCORP ceased accruing future interest revenue. Id. However, "[d]ue to the likelihood of
ultimately receiving payment if the customer remains employed, [Grupo Finmart] continue[d] to
accrue interest on all in-payroll loans, even though Grupo Finmart may not be currently

receiving payments." Id. In its corrective disclosures, EZCORP determined Grupo Finmart's

non-performing loans included a number of out-of-payroll loans that had not been properly
classified as such, and some in-payroll loans that had been in non-performing status for some
time. Id. By failing to properly account for the Non-Performing Loans, Plaintiffs argue,

EZCORP was able "to artificially maintain its ratio of bad debt expense to consumer loan fees
and interest

a measure of health of the underlying loan portfolio." Id. ¶ 108.

Plaintiffs further contend EZCORP failed to properly account for the sale of these Non-

Performing Loans. According to Plaintiffs, a confidential witness informed Kuchenrither that
under the terms of the loan sale documents, the third-party purchasers retained a right to return

non-performing loans to EZCORP, and generally accepted accounting principles (GAAP)
prohibited EZCORP from recognizing any revenue from these loan sales. Id. ¶ 7. Despite the
confidential witness's warning, EZCORP executed five separate sales of Grupo Finmart's loans
in the 2014 fiscal year, recognizing $33 million in gains on these sales. Id. ¶ 9. In the first quarter

of 2015, EZCORP executed another loan sale, recognizing $6.6 million in income on this sale.
Id. Plaintiffs claim the improper accounting for the sale

of the loans had the effect of artificially

boosting EZCORP's reported income in the 2014 fiscal year by 45% and its reported income
during the first quarter of 2015 by 32%. Id.

ru

The Allegedly False and Misleading Statements

III.

The statements Plaintiffs identify as misleading are taken from EZCORP's press releases,

conference calls, and SEC forms disclosing EZCORP's financial results during the Class Period.
These statements deal with EZCORP's financial results during the fourth quarter of 2013
(4Q13), the 2014 fiscal year (FY2014), and the first quarter of 2015 (1Q15). Plaintiffs' SAC

quotes extensively from Defendants' various public statements made throughout the Class
Period, but the allegedly false and misleading statements and omissions fall into two general
categories: (1) statements relating to the overstatement of EZCORP' s financial results, as a result

of EZCORP's failure to properly account for the Loan Sales and Non-Performing Loans, and
(2) statements relating to the nature of the Loan Sales.

First, Plaintiffs contend EZCORP's financial reports misrepresented its financial results,

including its net income and earnings per share. For instance, in its 3Q14 press release, EZCORP
reported $11.3 million in net income from continuing operations and earnings per share of $0.21.
Id.

¶ 70. According to Plaintiffs, the reporting of $11.3 million of net income from continuing

operations was false because EZCORP improperly recorded $14.3 million in income from the
sale of Grupo Finmart debt to third parties. Id. ¶ 71. Similarly, in its 4Q14 press release,

EZCORP reported $47 million of net income from continuing operations for the 2014 fiscal year,

but according to Plaintiffs, this amount was overstated by $3 1.956 million. Id. ¶ 79.
Moreover, throughout the Class Period, EZCORP filed its quarterly and annual reports

with the SEC. Each of these forms (Forms 10-Q and 10-K) reaffirmed EZCORP's financial
results previously announced in its press releases. Kuchenrither certified the reports did not
contain any false statements of material fact or omit any material facts.
76, 91.

ii

See, e.g.,

id.

¶J

62, 68,

Second, Plaintiffs maintain Defendants misrepresented the nature of the Loans Sales. For
example, in a January 28, 2014 press release, EZCORP stated "[c]ash and cash equivalents,

including restricted case, were $45 million at quarter-end, with debt of $252 million, including
$106 million of Grupo Finmart third-party debt, which is non-recourse to EZCORP." Id. ¶ 61

(emphasis added); see also id. ¶ 66 ("Cash and cash equivalents

. . .

were $63 million at quarter-

end, with debt of $228 million, including $145 million of Grupo Finmart third-party debt, which
is non-recourse to EZCORP.") (emphasis added). Moreover, during an earnings conference call

held on July 29, 2014, Kuchenrither described the Loan Sales as "true loan sales," explaining

"it's a true profit" because "the risk associated with the loans passed to the buyer of the loans."
Id. ¶ 73 He further stated the Loan Sales were not securitizations, but instead "truly an asset

sale. I just want to make that distinction, because [it's] very important." Id. ¶ 74. According to

Plaintiffs, the "asset sales" identified by Kuchenrither were not true asset sales and were

improperly recorded as revenue by EZCORP in violation of GAAP. Id. ¶ 75.

IV.

The Alleged Corrective Disclosures
Plaintiffs allege Defendants' corrective disclosures began on April 30, 2015, and ended

on November 9, 2015. On April 30, 2015, EZCORP announced the release of its 2Q15 financial

results would be delayed "due to an ongoing review of certain elements of its Grupo Finmart
loan portfolio, which is not yet completed." Id. ¶ 96. In that same press release, EZCORP further

stated it "did not undertake any asset sales in Grupo Finmart this quarter" and "noted some
differences in the performance of parts of our Grupo Finmart loan portfolio that prompted a more

thorough review and analysis of our loan reserves[.]"Id. ¶ 96. Following this announcement,

EZCORP's stock fell $0.79 per share to close at $8.41 per share on May 1, 2015. Id. ¶ 97.
On May 20, 2015, EZCORP filed its Form 8-K with the SEC, stating

We have identified certain errors in a portion of our Grupo Finmart loan portfolio
that may impact current and historical amounts of loan reserves and interest
income. . . . We are also reviewing whether certain structured asset sales from
Grupo Finmart met the criteria required for sale accounting treatment or whether
they should have been accounted for as secured borrowings.
Id. ¶ 99. EZCORP further stated "we believe that it is likely that management and the Audit

Committee will conclude that we have a material weakness in internal control over financial
reporting and deficiencies in our disclosure controls and procedures." Id. Following this
announcement, EZCORP's stock declined $0.66 per share to close at $8.33 per share on May 21,

2015. Id. ¶ 100.
On July 17, 2015, EZCORP issued a press release, which corrected previous

representations regarding the Loan Sales and the Non-Performing Loans. As to the Loan Sales,
EZCORP stated,

Following a comprehensive review of the terms and conditions of each of the
structured asset sales, management has determined that the asset sales should not
have been accounted for as sales, principally due to certain control rights that
Grupo Finmart retained as servicer of the loans. Because of these control rights,
the trusts to which the loans were sold should be accounted for as "variable
interest entities" and consolidated pursuant to ASC 810-10 (Consolidation and the
Variable Interest Model), and therefore, the sales should not have been recognized
for accounting purposes.
Id. ¶ 101.

As to the Non-Performing Loans, EZCORP stated,

The company has identified a number of out-of-payroll loans that had not been
properly classified and accounted for as such, causing an understatement of bad
debt expense and an overstatement of accrued interest revenue in prior periods. In
addition, after reviewing the aging characteristics of the non-performing loans, the
company[] . . . has determined that it is more appropriate to accrue and recognize
interest income over the period that payments are actually received rather than
over the stated term of the loans[.]
Id. That same day, EZCORP filed its Form 8-K with the SEC, announcing it would restate its

financial statements for FY2014, 1Q15, and possibly for periods prior to FY2014. Id. ¶ 102.
7

Following this announcement, EZCORP's stock declined $0.26 per share to close at $6.48 per
share on July 17, 2015. Id. ¶ 106.

On October 20, 2015, EZCORP issued a press release confirming it would restate its

previously issued financial statements for FY2012 and FY2013. Id. ¶ 104. The restatement

would correct errors relating to the accrued interest revenue associated with non-performing
loans. Id. Following this announcement, EZCORP's stock declined $0.29 per share to close at

$6.32 per share on October 20, 2015. Id. ¶ 105.
On November 9, 2015, EZCORP filed its restated financials from 2Q12 through 1Q15.
Id.

¶ 107. The Restatement revealed, among other things, EZCORP's operating income was

overstated by $90.7 million, or 27.3%, during the restated periods, and its earnings per share
were overstated by $0.78, or 36.8%, during the restate periods. Id. ¶ 109. Following the filing of
its restated financial results, EZCORP's stock declined $0.29 per share to close at $6.51 per

share on November 9, 2015. Id. ¶ 163.
V.

Plaintiffs' Scienter Allegations
According to Plaintiffs, Kuchenrither knew all of the statements described above were

materially false and misleading at the time they were made. In support of this contention,
Plaintiffs rely on the existence and magnitude of the Restatement, statements from confidential

witnesses, inaccurate Sarbanes-Oxley (SOX) certifications, and Kuchenrither' s incentive-based
bonus. In its October 18, 2016 Order, the Court concluded the size of the Restatement provided

some basis from which to infer scienter, but taken together, Plaintiffs' allegations were

insufficient to give rise to a strong inference of scienter. Plaintiffs have amended their allegations
in the SAC to add statements from a new confidential witness, CW4, and to expand on previous
statements provided by CW1, CW2, and CW3.

A.

Loan Sales
To establish Kuchenrither acted with the required state of mind when he misrepresented

the nature of the Loan Sales and the accuracy of EZCORP's financial reports, Plaintiffs rely on
statements from CW1, EZCORP's Vice President of Internal Audit, who reported to

Kuchenrither, attended monthly meetings with Kuchenrither, and spoke with Kuchenrither on a

near-daily basis at EZCORP's headquarters. Id. ¶ 7. CW1 managed approximately 75 internal
auditors at EZCORP and its subsidiaries, all of whom reported directly to CW1. Id. Plaintiffs
contend CW1 has personal knowledge of the Loan Sales because CW1 oversaw the internal audit
team for Grupo Finmart, which notified CW1 of the first loan transaction. Id. CW1 reviewed the

loan documents and determined that in light of GAAP, the transaction should not have been
recorded as revenue because the third-party purchasers of the loans retained a right to return non-

performing loans to EZCORP, meaning that if any of the sold loans defaulted, the third-party

purchaser had the right to make EZCORP repurchase the loans. Id. CW1 claims to have
informed Kuchenrither of this accounting irregularity at EZCORP's headquarters in early

November 2013, sometime before EZCORP issued its press release on November 7, 2013,
announcing its 2013 fiscal year-end

results.5

Id. CW1 contends that Kuchenrither dismissed

CW1 's concerns and claimed he had consulted the appropriate personnel regarding the Loan

Sales. Id.

Defendants take issue with this factual recitation because in the SAC, Plaintiffs indicate EZCORP's
headquarters were in Rollingwood, Texas in 2013, when in fact EZCORP's headquarters were not moved to
Rollingwood until 2015. Second Mot. Dismiss [#50] at 7; Resp. [#52] at 7. Moreover, Defendants contend the SAC
is inherently contradictory because Plaintiffs first allege CW1 discussed the loans sales with Kuchenrither in "early
November 2013," but later suggest the meeting may have occurred prior to October 21, 2013. These issues are
addressed in the Application section. See infra Section II.A.

B.

Non-Performing Loans
To establish Kuchenrither acted with the required state of mind when he misrepresented

the accuracy of EZCORP's financial reports with regard to EZCORP's failure to properly
account for the Non-Performing Loans, Plaintiffs rely on statements from CW1, CW2, CW3, and
CW4.
CW2 was EZCORP's Internal Audit and SOX Manager who oversaw EZCORP's

internal audit of Grupo Finmart and reported directly to CW1. Id. ¶ 14. Both CW2 and CW4
traveled to Mexico to conduct the 2013 fiscal year-end internal audit of Grupo Finmart. Id. CW2

claims Grupo Finmart was not SOX compliant and was not properly tracking payday loans

because Grupo Finmart did not have adequate aging reports. Id. ¶ 15. An aging report is an
accounting tool for measuring bad debt by sorting loans by the period for which they were
unpaid, for example, sorting loans that had not been paid for 0-30 days or 31-60 days. Id. CW2
reported this accounting issue to CW1 in early November 2013, and CW1 claims to have

conveyed these accounting issues to Kuchenrither in a "series of meetings" at EZCORP 's
headquarters in early November 2013. Id. ¶ 16.
CW3, CW1 's administrative assistant who worked at EZCORP from October 2012 to

February 2015, assisted in compiling an internal audit report from Grupo Finmart's 2013 fiscal
year-end review (Internal Audit Report) and distributing the report to Kuchenrither via email
sometime between October 29, 2013, and November 4, 2013. Id. ¶ 18. CW3 also distributed a

hard copy of the report to Kuchenrither' s executive assistant and explained it was customary for
Kuchenrither to receive copies of internal audit reports a week before the standard email
distribution. Id. ¶ 18. CW4, an internal auditor at EZCORP who reported directly to CW2,
claims the Internal Audit Report revealed that (1) Grupo Finmart had inadequate aging reports

10

and inadequate loan tracking procedures, (2) Grupo Finmart had a weak collections system

which made it difficult to collect unpaid loans, and (3) Grupo Finmart's accounting personnel
were not properly trained or proficient in accounting. Id. ¶ 17.
According to Plaintiffs, although CW1 purportedly informed Kuchenrither of the
accounting deficiencies related to the Loan Sales issue, and CW3 allegedly sent Kuchenrither the
Internal Audit Report detailing Grupo Finmart's accounting deficiencies, Kuchenrither

nevertheless certified EZCORP's financial reports as accurate. id. ¶ 19. Following
Kuchenrither' s certifications, Plaintiffs allege EZCORP issued its financial statements containing
material misstatements concerning its financial results. Id.

Procedural History
Plaintiffs filed this lawsuit on July 20, 2015, alleging Defendants false and misleading
statements caused EZCORP 's stock to trade at artificially inflated prices and Plaintiffs suffered

financial losses as a result of EZCORP's restated financial reports.

See

Compl. [#1]. The Court

granted Defendants' first motion to dismiss, concluding Plaintiffs failed to plead facts

demonstrating a strong inference of scienter. Order of Oct. 18, 2016 {#44] at 1, 14-24. The

Court's dismissal was without prejudice, and Plaintiffs filed their SAC on November 4, 2016.
See

SAC [#47].
In their SAC, Plaintiffs again allege Defendants violated federal securities law by making

false and misleading statements designed to artificially inflate the price of EZCORP '5 stock. Id.

¶ 157. The instant motion to dismiss followed, which has been fully briefed by the parties and is
now ripe for the Court's consideration. See Second Mot. Dismiss [#50].

11

Analysis
I.

Legal Standard

A.

Motion to DismissRule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief"

FED.

R. Civ. P. 8(a)(2). A

motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted."

FED.

R.

CIV. P.

12(b)(6). The plaintiff

must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft

v.

Iqbal,

556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at
678. Although a plaintiff's factual allegations need not establish that the defendant is probably

liable, they must establish more than a "sheer possibility" that a defendant has acted unlawfully.
Id. Determining plausibility is a "context-specific task," and must be performed in light

of a

court's "judicial experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all

factual allegations contained within the complaint. Leatherman

v.

Tarrant Cty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to
accept legal conclusions couched as factual allegations. Papasan

v.

Al/am, 478 U.S. 265, 286

(1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff

must plead "specific facts, not mere conclusory allegations." Tuchman, 14 F.3d at 1067. In
deciding a motion to dismiss, courts may consider the complaint, as well as other sources such as

12

documents incorporated into the complaint by reference, and matters of which a court may take

judicial notice. Tellabs, Inc.
B.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

Securities Exchange Act § 10(b) Pleading Requirements
Section 10(b) of the Securities Exchange Act of 1934 empowers the SEC to promulgate

rules to prevent manipulative or deceptive practices in the sale or purchase of securities. 15
U.S.C.

§

78j(b). Under this grant of authority, the SEC issued Rule lOb-5, which makes it

unlawful:

employ

any

device,

scheme,

or

artifice

to

defraud,

(a)

To

(b)

To make any untrue statement of a material fact or to omit to state a
material fact necessary in order to make the statements made, in the light

of the circumstances under which they were made, not misleading, or
(c)

To engage in any act, practice, or course of business which operates or
would operate as a fraud or deceit upon any person, in connection with the
purchase or sale of any security.

17 C.F.R. § 240.lOb-5.

The Fifth Circuit has held the elements of a claim under

§

10(b) are: (1) a

misrepresentation or omission; (2) of a material fact; (3) in connection with the purchase or sale

of a security; (4) scienter by the defendant; (5) justifiable reliance by the plaintiff (6) damages;
and (7) proximate cause. Rosenzweig

v.

Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003). To

establish scienter, a plaintiff must show the defendant intended to deceive, defraud, or

manipulate, or that the defendant acted with severe recklessness. Lormand v. US Unwired, Inc.,
565 F.3d 228, 251 (5th Cir. 2009). Severe recklessness is limited to "highly unreasonable

omissions or misrepresentations" involving an "extreme departure from the standards of ordinary
care." Nathenson

v.

Zonagen, Inc., 267 F.3d 400, 408 (5th Cir. 2001).

13

Both Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform
Act (PSLRA) impose a heightened pleading requirement on

§

10(b) claims. FED. R.

Civ. P.

9(b);

15 U.S.C. § 78u-4(b). Rule 9(b) requires plaintiffs alleging fraud or mistake to "state with

particularity the circumstances constituting fraud or mistake."

FED. R. CIV. P.

9(b). In order to

avoid dismissal under Rule 9(b) for lack of particularity, the Fifth Circuit has held a plaintiff
must:
(1)

specify each statement alleged to have been misleading, i.e., contended to
be fraudulent;

(2)

identify the speaker;

(3)

state where and when the statement was made;

(4)

plead with particularity the contents of the false representations;

(5)

plead with particularity what the person making the misrepresentation
obtained thereby; and

(6)

explain the reason or reasons why the statement is misleading, i.e., why
the statement is fraudulent.

Rosenzweig,

332 F.3d at 866.

The PSLRA dictates a more rigorous pleading standard for private securities fraud
actions in two ways. First, in any such action alleging the defendant made an untrue statement of

material fact or a misleading omission:
[T]he complaint shall specify each statement alleged to have been misleading, the
reason or reasons why the statement is misleading, and, if an allegation regarding
the statement or omission is made on information and belief, the complaint shall
state with particularity all facts on which that belief is formed.
15 U.S.C. § 78u-4(b). Second, for claims

under which the plaintiff must prove a particular state

of mind to recover:

14

[T]he complaint shall, with respect to each act or omission alleged to violate this
chapter, state with particularity facts giving rise to a strong inference that the
defendant acted with the required state of mind.
Id. (emphasis added). Based on the elements of a § 10(b) claim described above, it is clear that
§

10(b) claims are subject to both of these requirements of the PSLRA.

C.

"Strong Inference" of Scienter Requirement
The United States Supreme Court has outlined a framework for courts to use in analyzing

motions to dismiss

§

10(b) complaints for failing to establish a "strong inference" of scienter. See

Tellabs, 551 U.S. at 322-23. First, as in any other motion to dismiss, the court accepts all factual
allegations in the complaint as true. Second, the court considers the entire complaint, other

sources typically examined in a 12(b)(6) motion, sources incorporated by reference into the

complaint, and matters of which a court may take judicial notice. Third, in determining whether
the pleaded facts give rise to a "strong" inference of scienter, as required by the PSLRA, a court

should consider all of the facts alleged, taken collectively, and should also take into account

plausible opposing inferences. Id. "A district court may best make sense of scienter allegations
by first looking to the contribution of each individual allegation to a strong inference of scienter,
especially in a complicated case.

. .

." Owens

v.

Jastrow, 789 F.3d 529, 537 (5th Cir. 2015). "As

a matter of efficiency, if any single allegation, standing alone, create[s] a strong inference of
scienter, the court [does] not need to consider additional allegations of scienter." Id. If analyzing
each allegation alone does not support a strong inference of scienter, "the court must follow this

initial step with a holistic look at all the scienter allegations," or may assess the allegations

holistically, without first engaging in an allegation-by-allegation analysis. Id.
The scienter inference need not be irrefutable, nor even the most compelling of all
competing inferences, but must be strong in light of other inferences. Tellabs, 551 U.S. at 324.

15

Ultimately, a complaint will only survive if "a reasonable person would deem the inference of

scienter cogent and at least as compelling as any opposing inference one could draw from the
facts alleged." Id.

II.

Application
In its October 18, 2016 Order granting Defendants' first motion to dismiss, the Court

concluded Plaintiffs' allegations, taken together, failed to give rise to a strong inference of
scienter. Specifically, the Court found the Restatement provides "some basis from which to infer

scienter," but Plaintiffs' allegations regarding Kuchenrither's SOX certifications were too vague
to permit an inference of scienter; the confidential witness statements were either too vague and

unreliable or not indicative of scienter; and Kuchenrither' s incentive-based bonus, while not
sparing, was not sufficient to demonstrate a strong inference of scienter. Order of Oct. 18, 2016
[#44] at 18, 22-24. Plaintiffs have attempted to cure these deficiencies in the SAC by furnishing

additional details describing the confidential witnesses' statements and supplementing these
statements with allegations from a new confidential witness.

Defendant's sole argument in support of dismissal is that Plaintiffs failed to plead
sufficient facts giving rise to a strong inference of scienter based on statements from confidential
witnesses. The Court does not fully agree.
A.

Knowledge of the Loan Sales
As alleged in the SAC, Kuchenrither knew or recklessly disregarded the fact that

recording the Loan Sales as revenue violated GAAP, but nevertheless represented to analysts that
the Loan Sales were "true asset sales" and thereafter certified EZCORP's financial reports as
accurate. In support of their claim, Plaintiffs rely on allegations from CW1, who claims to have

directly informed Kuchenrither of this GAAP violation.

16

"Following Tellabs, courts must discount allegations from confidential sources." md..
Elec. Workers' Pension Trust Fun IBEWv. Shaw Grp., Inc., 537 F.3d 527, 535 (5th Cir. 2008).
To be given any weight, confidential sources must be described "with sufficient particularity to

support the probability that a person in the position occupied by the source.. . would possess the

information pleaded." ABC Arbitrage Plaintjfs Grp.

v.

Tchuruk, 291 F.3d 336, 353 (5th Cir.

2002). The complaint should give details such as the person's job description, individual

responsibilities, and specific employment dates. Cent. Laborers Pension Fund, 497 F.3d at 552.
Furthermore, plaintiffs must allege with particularity when a comment was made to a
confidential source, or, if the source alleges a conversation took place, when and where the

conversation occurred. Ind. Elec., 537 F.3d at 538; Southland Secs. Corp.

v.

INSpire Ins. Sols.,

Inc., 365 F.3d 353, 382 (5th Cir. 2004).
Even though CW1 is not identified by name, Plaintiffs have adequately alleged that
CW1, as EZCORP's Vice President of Internal Audit, was in a position to have the knowledge
he or she professes to have. Moreover, the SAC alleges CW1 's statements are based on personal

knowledge of a conversation he or she had with Kuchenrither, not on hearsay stemming from an
unidentified source. Defendants maintain, however, that CW1 's allegations are unreliable
because Plaintiffs have again failed to specify "where" and "when" the alleged conversation
between CW1 and Kuchenrither regarding the Loan Sales occurred. In the SAC, Plaintiffs allege

this conversation occurred in Rollingwood, Texas, in early November 2013. SAC [#47] ¶ 7. As
Defendants correctly note, however, EZCORP did not move its headquarters to Rollingwood

until late 2015. Second Mot. Dismiss [#50] at 7; Resp. [#52] at 7. Prior to that time, EZCORP
was headquartered in Austin, Texas. In their response to Defendants' second motion to dismiss,
Plaintiffs attribute this blunder to a "drafting error" by their counsel, and maintain the

17

investigator's interview report reveals CW1 actually stated the meetings occurred at EZCORP's
headquarters in Austin. Resp. [#52] 7 n.4. Though Plaintiffs' "drafting error" does nothing to

bolster their own credibility, the Court does not find this error so egregious as to wholly
undermine CW l's allegations.

As alleged in the SAC, the purported conversation occurred sometime between

November

1

and November 7, 2013, but Defendants nevertheless contend this seven-day period

"adds little specificity compared" to the two-month range of "October to November 2013"

alleged in the FAC. Second Mot. Dismiss [#50] at 11. The purpose of the "when and where"
requirement is not to raise the pleading burden so that facially valid claims are routinely
dismissed, but rather to provide sufficient detail for a court to determine whether the confidential

witness' statements are reliable.

See Tchuruk, 291

F.3d at 354 ("[T]he plaintiffs need not allege

all facts that may be related to their claims, since such a requirement is impossible at the

pleading stage because, in nearly every securities fraud case, only the defendants know all the
facts related to the alleged fraud. In this sense, the PSLRA may have changed federal securities
law; it did not eliminate it."). According to Plaintiffs, "CW1 's office was in close proximately

with Kuchenrither's" and "CW1 spoke with Kuchenrither on a near-daily basis" during regularly
scheduled and as-needed meetings. SAC [#47] ¶ 36. CW1 's recollection, without access to
discovery, was that this conversation occurred between November

1

and November 7, 2013. This

one-week timeframe is sufficiently specific, at this stage of the litigation, to suggest CW l's
account is reliable.6

Defendants next argue that the substance of CW1 's alleged conversation with
Kuchenrither casts doubt on CW1 's reliability and reveals his or her purported conversation with
Kuchenrither is not suggestive of fraud. CW1 claims to have warned Kuchenrither that "because

there was a right to return loans to EZCORP[,] [the first Loan Sale] was not a true asset sale and
under EZCORP's accounting policy the loan sale could not be recorded as revenue." SAC [#47]

¶ 118. According to Plaintiffs, Kuchenrither was aware of Accounting Standards Committee
(ASC) 860-10-40-5, which "requires []the seller does not maintain any right of return," when he

represented the Loan Sales were "true asset sales" and later certified EZCORP's financial reports
as accurate. See

Id.

¶J

10, 34. Defendants note, however, that the Restatement identifies ASC

810-10, which involves consolidating the financials of variable interest entities (VIEs), as the

reason the Loan Sales should not have been recognized as revenue.

See

Id.

¶ 101

(quoting July

17, 2015 press release entitled, "EZCORP to Restate Certain Financial Results"). Because

Plaintiffs do not allege CW1 notified Kuchenrither that ASC 810-10, rather than ASC 860-10140-5, was violated, Defendants contend, the allege conversation between CW1 and Kuchenrither

is not probative of Kuchenrither' s state

of mind regarding VIEs. Alternatively, Defendants claim

CW l's "incorrect reference" to the accounting rule shows CW 1 "lacks the expertise necessary to

support the allegations" attributed to CW1. Second Mot. Dismiss [#50] at 17.

Defendants further maintain the SAC is "internally inconsistent" regarding when the alleged conversation
took place, because although Plaintiffs specifically allege the conversation took place "in early November[] 2013,"
they allege in the next paragraph that "[djespite what CW#1 told Kuchenrither, EZCORP completed its first loan
sale in October 2013 and realized $4.6 million in income on the sale gain in its 2013 fiscal fourth quarter." SAC
[#47] ¶ 118-19. At best, however, the phrase "[d]espite what CW#1 told Kuchenrither" represents a possible
inconsistency in cwi 's allegations. The statement is not directly attributed to CW1, and one reading of the sentence
suggests Plaintiffs simply intended to highlight the fact that the Loan Sale violated GAAP, not that Kuchenrither
knew at that time that the Loan Sale violated GAAP.
6

19

Importantly, however, Defendants' motion to dismiss rests entirely on their claim that

Kuchenrither acted with the required state of mind; they do not challenge the other elements of

Plaintiffs'

§

10(b) claim, such as whether Plaintiffs described the alleged misrepresentations with

sufficient particularity. To establish Kuchenrither's scienter, Plaintiffs allege ASC 860-10-40-5

"requires that the seller does not maintain any right of return"; prior to the first Loan Sale, CW1
told Kuchenrither the Loan Sale was not a true asset sale because the third-party purchasers had a
right to return non-performing loans; and even though Kuchenrither was aware of ASC 860-1040-5 and CW1 's warnings regarding Grupo Finmart's accounting deficiencies, he nevertheless

certified EZCORP's financial reports as accurate. SAC [#47]

¶11

10, 118, 122. It is irrelevant at

this stage of the litigation whether the Loan Sales actually violated ASC 860-10-140-5. "The

question of whether [EZCORP 's financial] statements actually violated GAAP is fact-dependent
[and] not properly addressed on a motion to dismiss." Owens, 789 F.3d at 540. Rather, "[t]he

issue, for the scienter analysis, is whether, assuming the statements violated GAAP, the
allegations give rise to a strong inference that individual defendants were severely reckless in
valuing the securities." Id. In this case, CW1 's allegation that he or she directly informed

Kuchenrither that the Loan Sale could not be recorded as revenue, and Kuchenrither knew that
doing so violated GAAP, gives rise to a strong inference of scienter.
Hughes

Inc.,

See Abrams

v.

Baker

292 F.3d 424, 432 (5th Cir. 2002) ("The party must know that it is publishing

materially false information, or must be severely reckless in publishing such information.")
In its October 18, 2016 Order, the Court advised Plaintiffs that it had not adequately

explained how CW l's allegations regarding the first Loan Sale raised an inference of scienter as
to the five subsequent Loan Sales. See Order of Oct. 18, 2016 [#44] at 21

n.h.

This time,

however, the Court is satisfied Plaintiffs have met their burden to show scienter as to each of the

AI

similarly-structured Loan Sales. As alleged in the SAC, Defendants refer to these transactions as
following the same "new distributor model" when discussing the transactions with investors and
analysts, and the Restatement itself confirms that "{e]ach of the Asset Sales was accounted for as
a sale, and we recognized a gain equal to the difference between the book value of the sold loans

and the purchase price, which was generally equal to the aggregate amount of the payments."

SAC [#47J ¶J 72, 102.

Taking Plaintiffs' factual allegations in the SAC as true, as the Court is required to do at
the motion to dismiss stage, the Court finds Plaintiffs have adequately pled a strong inference of

scienter against Kuchenrither based on the Loan Sales. Defendants' motion to dismiss is
therefore denied on this ground.
B.

Knowledge of the Non-Performing Loans
Plaintiffs further allege Kuchenrither, in certifying EZCORP's financial records as

accurate, knew or recklessly disregarded the fact that Grupo Finmart failed to identify certain

Non-Performing Loans and improperly continued to accrue interest revenue on these loans. To
support this claim, Plaintiffs rely on (1) the Internal Audit Report CW3 purportedly emailed to

Kuchenrither "sometime between October 29 and November 4, 2013," which allegedly describes
accounting deficiencies identified by CW2 and CW4, and (2) an alleged "series of meetings"
involving CW1 and Kuchenrither in which CW1 relayed CW2's report of Grupo Finmart's
various accounting deficiencies to Kuchenrither.

Plaintiffs' first allegation represents a marked shift in their theory of liability, as the first
amended complaint (FAC) said nothing about a 2013 internal audit report related to Grupo
Finmart. Instead, it presented allegations from CW3 about a "series of written reports sent to

senior management" in 2012, prior to EZCORP's acquisition of Grupo Finmart. FAC [#29] ¶J 4,

21

44. Based on Plaintiffs' representations in the FAC, the Court previously described the report as

"a pre-acquisition due diligence report of Grupo Finmart" conducted in 2012. Order of Oct. 18,
2016 [#44] at 5. The Internal Audit Report cited in the SAC, however, is described as a 2013
fiscal year-end review of Grupo Finmart. Instead of explaining the inconsistency between CW3 's

allegations in the FAC and his or her new allegations in the SAC, Plaintiffs attempt to sweep this
distinction under the rug by stating, "[t]he only difference between the FAC and the SAC is more

detailed and precise facts as to the report sent to Kuchenrither.

. .

." Resp. [#52] at 16. Plaintiffs'

refusal to even acknowledge the difference in CW3 's allegations regarding the report he or she

purportedly sent to Kuchenrither undermines the reliability of CW3 's new allegations.
Even assuming the reliability of CW3's account, however, the Court finds these newly

discovered allegations fail to support a strong inference of scienter. As an initial matter, there is
no allegation Kuchenrither actually saw or reviewed the Internal Audit Report. Instead, Plaintiffs

allege the report was sent to Kuchenrither, "among others," via email and hard copy. SAC [#47]

¶ 57. The inferential leap required to tie Kuchenrither's receipt of the report to the conclusion
that he acted knowingly or recklessly when certifying EZCORP's financials is tenuous given the

heightened pleading standards.
Moreover, Plaintiffs' allegations regarding the contents of the Internal Audit Report are
still too vague to support a strong inference of scienter. Courts evaluating similar allegations

have found them insufficient to demonstrate a strong inference of scienter. See Owens, 789 F.3d
at 544; City

ofPontiac Policemen's & Firemen's Ret. Sys.

v.

UBSAG, 752 F.3d 173, 186-88 (2d

Cir. 2014) (concluding an internal investigation report, which determined there were "valuation

uncertainties," a lack of transparency, and "inherent risks not adequately analyzed" in the
valuation of certain assets, did not demonstrate a strong inference of scienter). In Owens,

22

investors brought federal securities law claims against a company's officers, alleging the officers

made false and misleading statements about the company's assets. 789 F. 3d at 533. Specifically,

the investors alleged the defendants were aware of deficiencies in their internal valuation model,
in part because a confidential witness purportedly warned the defendants of these deficiencies in
an email. Id. at 544. Nevertheless, the Fifth Circuit concluded the investors failed to adequately

plead scienter, noting that "CW1 's warnings did not mention GAAP and do not seem to suggest
that any issues were so severe that they could lead to a large overvaluation of the MBS

portfolio." Id. Similar to the investors' deficient allegations in Owens, Plaintiffs fail to allege the
Internal Audit Report informed Kuchenrither that Grupo Finmart's financial reports were false or

would require restatement. And Plaintiffs make no suggestion that any other EZCORP executive
alleged to have received this report or any outside auditors raised any "red flags" as to the

veracity of Grupo Finmart's financial reports.
Finally, Plaintiffs fail to explain how CW3, an administrative assistant, would know what

findings were included in the Internal Audit Report. Plaintiffs rely on allegations from CW2 and
CW4, both internal audit employees, to describe what was in the report, but Plaintiffs do not

allege that either CW2 or CW4 even saw the final version of the report which CW3 purportedly

"assisted in finalizing" and allegedly sent to Kuchenrither. SAC [#47] ¶ 57. In light of the
foregoing, the Court finds CW3 's allegations regarding the alleged Internal Audit Report fail to
give rise to a strong inference of scienter.

Plaintiff's second allegation regarding the "series of meetings" involving CW 1 and
Kuchenrither likewise fails to give rise to a strong inference of scienter. CW1 claims he or she
informed Kuchenrither of Grupo Finmart' s "accounting issues" in a "series of meetings" held at

EZCORP's headquarters sometime between late October 2013 and November 7, 2013. Id. ¶ 16.

23

Defendants again challenge the reliability of CW1 's alleged conversations with Kuchenrither,

claiming CW1 's allegations lack the requisite specificity as to when and where these meetings
occurred. For the reasons explained above, however, the Court finds this challenge unpersuasive.

Nevertheless, the Court finds CW1 's account of his or her conversation with

Kuchenrither in a "series of meetings" unreliable, as CW l's statements are based on hearsay-

within-hearsay. Unlike CW1 's first-hand review of the Loan Sales, CW1 's knowledge of Grupo

Finmart's accounting deficiencies is based on CW2's report to CW1 that Grupo Finmart "was
not properly tracking payday loans" because it "did not have adequate aging reports." Id. ¶ 15.

Nowhere in the SAC do Plaintiffs allege with any more particularity what CW2 told CW1, nor
do they explain in their response how, based on Plaintiffs' description
CW1 would have personal knowledge

[Internal Audit Report]

[]

of what CW2 told CW1,

of the "very accounting problems that were in the 2013

given to Kuchenrither by CW3." See Resp. [#52] at 20 (citing SAC

[#47] ¶ 58). The Court finds this hearsay-within-hearsay account too unreliable to give rise to an

inference of scienter as cogent or compelling as any competing inference of nonfraudulent intent.
See, e.g., Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 997 n.4 (9th Cir. 2009) ("[A]

hearsay statement, while not automatically precluded from consideration to support allegations

of scienter, may indicate that a confidential witness's report is not sufficiently reliable, plausible,
or coherent to warrant further consideration[.]").

Taken together, Plaintiffs' allegations regarding the Internal Audit Report and CW1 's
"series of meetings" with Kuchenritherin conjunction with any inference of scienter raised
from the existence and magnitude of the Restatementdo not present a strong inference of

scienter against Kuchenrither "at least as compelling as any opposing inference of nonfraudulent

intent." See

Tellabs,

551 U.S. at 314. Defendants' motion to dismiss is therefore granted on this

ground.

III.

Control-Person Liability
Defendants move to dismiss Plaintiffs'

§

20(a) control-person claim on the ground that

Plaintiffs have failed to establish a predicate securities fraud violation under

§

10(b). As the

Court finds Plaintiffs failed to adequately plead Kuchenrither's scienter regarding Grupo

Finmart's Non-Performing Loans under
Plaintiffs'

§

§

10(b), it grants Defendants' motion to dismiss

20(a) claim premised on this ground. However, because the Court finds Plaintiffs

have adequately plead scienter against Kuchenrither regarding Grupo Finmart's Loan Sales

under

§

10(b), the Court denies Defendants'

corresponding

§

dependent request to dismiss Plaintiffs'

20(a) claim.

Conclusion
For the reasons explained above, the Court concludes Plaintiffs'

§

10(b),

§

20(a), and

Rule lOb-5 claims based on the Loan Sales survive Defendants' motion to dismiss. However,

because the Court finds Plaintiffs failed to adequately plead scienter as to their
1

§

10(b) and Rule

Ob-5 claims based on the Non-Performing Loans, these claims are dismissed. Having failed to

establish a predicate securities fraud violation under
Loans, Plaintiffs' corresponding

§

§

10(b) regarding the Non-Performing

20(a) claims are likewise dismissed.

Accordingly,
IT IS ORDERED that Defendants EZCORP, Inc. and Mark Kuchenrither's

Motion to Dismiss [#50] is GRANTED IN PART and DENIED IN PART as described in
this opinion.

25

SlGNEDthisthe

6I

5-

dayofMay 2017.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

26