     09-3919-cv
     Iowa Pub. Employees’ Ret. Sys. v. MF Global, Ltd.



 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2009
 6
 7
 8     (Argued: July 15, 2010               Decided: September 14, 2010)
 9
10                            Docket No. 09-3919-cv
11
12   - - - - - - - - - - - - - - - - - - - - -x
13
14   IOWA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, POLICEMEN’S
15   ANNUITY & BENEFIT FUND OF CHICAGO, CENTRAL STATES, SOUTHEAST
16   AND SOUTHWEST AREAS PENSION FUND, STATE-BOSTON RETIREMENT
17   SYSTEM, MF GLOBAL INSTITUTIONAL INVESTORS GROUP,
18
19                     Plaintiffs-Appellants,
20
21   MICHAEL RUBIN, individually and on behalf of all others
22   similarly situated,
23
24                     Plaintiff,
25
26   NANETTE KATZ, FRANK MATASSA, SUNSHINE WIRE AND CABLE DEFINED
27   BENEFIT PLAN TRUST, individually and on behalf of all others
28   similarly situated, MICHAEL J. RUDNICK, individually and on
29   behalf of all others similarly situated,
30
31                     Consolidated-Plaintiffs,
32
33               - v.-
34
35   MF GLOBAL, LTD., MAN GROUP, PLC, KEVIN R. DAVIS, AMY S.
36   BUTTE, ALISON J. CARNWATH, CHRISTOPHER J. SMITH, CHRISTOPHER
37   BATES, HENRI J. STEENKAMP, EDWARD L. GOLDBERG, DEUTSCHE BANK
38   SECURITIES, INC., ABN AMRO ROTHSCHILD LLC, BANC OF AMERICA
39   SECURITIES, LLC, BMO CAPITAL MARKETS CORP., HSBC SECURITIES
40   (USA) INC., KEEFE, BRUYETTE & WOODS, INC., SANDLER O’NEILL &
41   PARTNERS, L.P., WACHOVIA CAPITAL MARKETS LLC, CL KING &
42   ASSOCIATES, INC., DOWLING & PARTNERS SECURITIES, LLC,
 1   E*TRADE SECURITIES LLC, FORTIS SECURITIES LLC, GUZMAN & CO.,
 2   ING FINANCIAL MARKETS, LLC, JEFFRIES & CO., INC., LAZARD
 3   CAPITAL MARKETS LLC, M.R. BEAL & CO., MIZUHO SECURITIES USA,
 4   INC., MURIEL SIEBERT & CO., INC., OPPENHEIMER & CO., INC.,
 5   PIPER, JAFFRAY & CO., RAYMOND JAMES & ASSOCIATES, INC., RBC
 6   MARKETS CORP., ROBERT W. BAIRD & CO., INC., SAMUEL A.
 7   RAMIREZ & CO., INC., SMH CAPITAL INC., STIFEL, NICOLAUS &
 8   CO., INC., SUN TRUST CAPITAL MARKETS, INC., THE WILLIAMS
 9   CAPITAL GROUP, L.P., UTENDAHL CAPITAL PARTNERS, L.P., WELLS
10   FARGO SECURITIES, LLC, WILLIAM BLAIR & CO., LLC,
11
12                 Defendants-Appellees,
13
14   MERRILL LYNCH, PIERCE FENNER & SMITH, INC., CREDIT SUISSE
15   SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., J.P.
16   MORGAN SECURITIES INC., LEHMAN BROTHERS INC., UBS SECURITIES
17   LLC, GOLDMAN SACHS & CO., MORGAN STANLEY & CO., INC.,
18
19                 Consolidated-Defendants-Appellees.
20
21   - - - - - - - - - - - - - - - - - - - -x
22

23       Before:       JACOBS, Chief Judge, B.D. PARKER and
24                     HALL, Circuit Judges.
25
26       Plaintiffs appeal from a July 23, 2009 judgment of the

27   United States District Court for the Southern District of

28   New York (Marrero, J.), dismissing their complaint for

29   failure to state a claim.   They allege material

30   misstatements and omissions in a prospectus and registration

31   statement of defendant MF Global, Ltd., and assert claims

32   under §§ 11, 12(a)(2), and 15 of the 1933 Securities Act.

33   AFFIRMED IN PART, VACATED IN PART, and REMANDED for further

34   proceedings consistent with this opinion.


                                   2
 1                                 MARK R. ROSEN, Barrack, Rodos &
 2                                 Bacine, Philadelphia, PA
 3                                 (Leonard Barrack, Barrack, Rodos
 4                                 & Bacine, Philadelphia, PA;
 5                                 William J. Ban, Barrack, Rodos &
 6                                 Bacine, New York, NY; Carol V.
 7                                 Gilden, Cohen Milstein Sellers &
 8                                 Toll PLLC, Chicago, IL; and
 9                                 Steven J. Toll, Daniel S.
10                                 Sommers, Cohen Milstein Sellers
11                                 & Toll PLLC, Washington, DC on
12                                 the brief) for Appellants.
13
14                                 DAVID B. ANDERS (Bernard W.
15                                 Nussbaum, Elaine P. Golin, and
16                                 Christina T. Shay on the brief),
17                                 Wachtell, Lipton, Rosen & Katz,
18                                 New York, NY for MF Global
19                                 Appellees.
20
21                                 David A. Barrett, Marilyn C.
22                                 Kunstler, Boies, Schiller &
23                                 Flexner LLP, New York, NY for
24                                 Appellee Man Group plc.
25
26                                 Stuart J. Baskin, Herbert S.
27                                 Washer, and Adam S. Hakki,
28                                 Shearman & Sterling LLP, New
29                                 York, NY for Underwriter
30                                 Appellees.
31
32                                 Marshall H. Fishman, Freshfields
33                                 Bruckhaus Deringer US LLP, New
34                                 York, NY for Appellee Amy S.
35                                 Butte.
36
37   DENNIS JACOBS, Chief Judge:

38       Plaintiffs appeal from a July 23, 2009 judgment of the

39   United States District Court for the Southern District of

40   New York (Marrero, J.), dismissing their putative securities


                                    3
1    class action complaint for failure to state a claim.    They

2    allege material misstatements and omissions in the July 2007

3    prospectus and registration statement of defendant MF

4    Global, Ltd., and assert claims under §§ 11, 12(a)(2), and

5    15 of the 1933 Securities Act.    In a nutshell, the stock of

6    MF Global plummeted after the February 2008 revelation that

7    a broker had evaded trading restrictions.   Of four groups of

8    allegations, dismissal of two is not appealed.   As to the

9    claim that the prospectus and registration statement

10   exaggerated risk-management measures, we vacate the

11   dismissal because the district court erroneously applied the

12   bespeaks-caution doctrine.   As to the remaining claim, that

13   the prospectus and registration statement failed to disclose

14   deficiencies in the firm’s controls of client accounts, we

15   affirm in part the district court’s dismissal for lack of

16   causation, and in part vacate and remand.

17

18                                 I

19       In the morning hours of February 27, 2008, a broker at

20   MF Global, Ltd. lost $141.5 million speculating in wheat




                                   4
1    futures.1   The broker, Evan Dooley, accumulated the losses

2    by taking positions vastly in excess of the firm’s trading

3    limits and collateral requirements.    MF Global was

4    responsible for settling Dooley’s trades at the

5    clearinghouse, and absorbed the losses.    When news reached

6    the markets on February 28, MF Global’s stock price fell

7    28%; it fell a further 17% the day after, resulting in a

8    two-day market capitalization loss exceeding $1.1 billion.

9        The Dooley trading incident revealed to the public that

10   MF Global’s internal risk controls had not been applied to

11   brokers trading for their own accounts (or taking client

12   orders by phone).   MF Global had controls for limiting its

13   exposure to market risks in brokerage accounts by

14   restricting trading and by managing margin credit with

15   collateral and other requirements.    But MF Global sometimes

16   deactivated the controls (as with Dooley) to speed

17   transactions.

18       This putative class action was filed on March 6, 2008,



          1
            These facts, drawn from the plaintiffs’ complaint,
     are taken as true. See, e.g., Harrington v. County of
     Suffolk, 607 F.3d 31, 33 (2d Cir. 2010) (When “review[ing]
     . . . a district court’s dismissal for failure to state a
     claim,” we “assum[e] all well-pleaded, nonconclusory factual
     allegations in the complaint to be true.”).
                                   5
1    alleging, on behalf of certain purchasers of MF Global

2    stock, that the firm misrepresented and failed to disclose

3    relevant material information in a prospectus and

4    registration statement2 issued when the brokerage firm went

5    public in July 2007.    Until its initial public offering

6    (IPO), MF Global had been the brokerage arm of Man Group,

7    Plc, a hedge fund.     The defendants are MF Global, Man Group,

8    the IPO underwriters, and various MF Global officers and

9    directors.    Damages are sought under §§ 11, 12(a)(2), and 15

10   of the 1933 Securities Act,3 15 U.S.C. §§ 77k, 77l(a)(2) &

11   77o.

12          In response to a motion under Federal Rule of Civil

13   Procedure 12(b)(6), the district court dismissed the


            2
            The prospectus and registration statement contained
     substantially similar statements and wording in relevant
     part. Any analysis of statements or omissions in either is
     therefore equally applicable to the other.
            3
            Section 11 imposes liability for material
     misstatements and omissions in registration statements. See
     15 U.S.C. § 77k(a). And § 12(a)(2) imposes liability for
     material misstatements and omissions in prospectuses (and
     certain other communications). See 15 U.S.C. § 77l(a)(2).

          Section 15 imposes joint and several vicarious
     liability for violations of §§ 11 and 12 on any person who
     “controls” the primary violator. See 15 U.S.C. § 77o. The
     fate of the plaintiffs’ § 15 claim is therefore wholly
     dependent on our disposition of their § 11 and § 12 claims,
     and will not be analyzed separately here.
                                     6
1    complaint in its entirety.   See Rubin v. MF Global, Ltd.,

2    634 F. Supp. 2d 459 (S.D.N.Y. 2009).   The district court

3    sorted the allegations into four groups, id. at 469-72, each

4    of which it analyzed separately:

5             [1] Directional Trading: That the prospectus
6             misrepresented the types of trading--directional 4
7             or only hedging--conducted by MF Global;

 8            [2] Refco: That the prospectus failed to disclose
 9            the lack of adjustments to MF Global’s risk-
10            management systems made during and after Man
11            Group’s acquisition of Refco, another brokerage
12            firm;

13            [3] Risk Management: That the prospectus
14            misrepresented and failed to disclose material
15            facts relevant to the strengths and weaknesses of
16            MF Global’s risk-management system; and

17            [4] Client Accounts: That the prospectus failed to
18            disclose “that traders did not have limits when
19            trading for clients, and that with the proper
20            password anyone could access client accounts and
21            trade in them at any time,” id. at 470;

22   The court dismissed the first group of allegations on the

23   ground that the cited statements were not false or

24   misleading, and the second on the ground that the plaintiffs

25   had insufficiently alleged the omission of any material


          4
            A directional trade is an affirmative bet on the
     market that increases the trader’s risk--in contrast to a
     hedging trade, which reduces risk.
                                   7
1    fact.       The plaintiffs do not appeal those specific rulings.

2    Claims premised on allegations concerning risk management

3    were dismissed on the ground that cautionary language

4    elsewhere in the prospectus 5 rendered the cited statements

5    or omissions non-actionable pursuant to the bespeaks-caution

6    doctrine.         (An alternative ground is discussed in note 13.)

7    The fourth category of allegations (concerning client

8    accounts) was dismissed on the ground that alleged omissions

9    concerning the accounts of clients could not have caused the

10   loss alleged, which resulted from revelations concerning the




             5
            The prospectus’s relevant cautionary language
     included the following:

                   •     “[O]ur risk-management methods may prove to be
                         ineffective because of their design, their
                         implementation or the lack of adequate,
                         accurate or timely information. If our risk-
                         management efforts are ineffective, we could
                         suffer losses that could have a material
                         adverse effect on our financial condition or
                         operating results.”

                   •     “[W]e are exposed to . . . risks relating to
                         employee misconduct. Among other things, our
                         employees could execute unauthorized
                         transactions for our clients or for their own
                         or any of our accounts.”
                                         8
1    accounts of non-clients. 6

2        The plaintiffs timely appealed.   We review the district

3    court’s order de novo.   E.g., Harrington v. County of

4    Suffolk, 607 F.3d 31, 33 (2d Cir. 2010).

5

6                                  II

7        To prevail on a § 11 or § 12(a)(2) claim, a plaintiff

8    must show that the relevant communication either misstated

9    or omitted a material fact.   See 15 U.S.C. § 77k; 15 U.S.C.

10   § 77l(a)(2).   The bespeaks-caution doctrine is a corollary

11   of “the well-established principle that a statement or

12   omission must be considered in context.” 7   In re Donald J.


          6
            The district court dismissed all claims without
     prejudice to repleading provided that the plaintiffs could
     “plausibly show[] that such a repleading would not be
     futile.” Rubin, 634 F. Supp. 2d at 475. The plaintiffs
     subsequently proffered an amended complaint; but after
     reviewing it the district court denied leave to replead,
     “find[ing] that the filing of the Proposed Amended Complaint
     would be futile.” Though the plaintiffs contest this denial
     on appeal, for the reasons set out in note 13 we need not
     reach that assignment of error.
          7
            The doctrine (and phrase) seems to have appeared
     first in Polin v. Conductron Corp., which held that
     statements “of expectation, of anticipation, and of
     possibilities” “bespeak caution in outlook and fall far
     short of the assurances required for a finding of falsity
     and fraud.” 552 F.2d 797, 806 n.28 (8th Cir. 1977). In
     this Circuit, the doctrine first appeared when it was quoted
                                   9
1    Trump Casino Sec. Litig., 7 F.3d 357, 364 (3d Cir. 1993);

2    accord, e.g., Shaw v. Digital Equip. Corp., 82 F.3d 1194,

3    1213 (1st Cir. 1996); Fecht v. Price Co., 70 F.3d 1078,

4    1081-82 (9th Cir. 1995); Rubinstein v. Collins, 20 F.3d 160,

5    167-68 (5th Cir. 1994).   A forward-looking statement

6    accompanied by sufficient cautionary language is not

7    actionable because no reasonable investor could have found

8    the statement materially misleading. 8   See, e.g., P. Stolz

9    Family P’ship L.P. v. Daum, 355 F.3d 92, 96-97 (2d Cir.

10   2004).   In such circumstances, it cannot be supposed by a

11   reasonable investor that the future is settled, or

12   unattended by contingency.   For example, Luce v. Edelstein

13   held that statements in an offering memorandum “as to the

14   potential cash and tax benefits of [a] partnership” were




     approvingly in dicta in Goldman v. Belden, 754 F.2d 1059,
     1068 (2d Cir. 1985); it was first applied in Luce v.
     Edelstein, 802 F.2d 49, 56 (2d Cir. 1986).
          8
             Though we originally applied bespeaks caution to an
     action under § 10(b) of the 1934 Securities Exchange Act, 15
     U.S.C. § 78j(b), see Luce, 802 F.2d at 56, we have since
     applied the doctrine to actions under § 11, see, e.g.,
     Rombach v. Chang, 355 F.3d 164, 172-74 (2d Cir. 2004), and
     § 12(a)(2), see, e.g., P. Stolz Family P’ship L.P v. Daum,
     355 F.3d 92, 96-98 (2d Cir. 2004), of the 1933 Securities
     Act.
                                   10
1    non-actionable because “the Offering Memorandum made it

2    quite clear that its projections of potential cash and tax

3    benefits were ‘necessarily speculative in nature[,]’ . . .

4    that ‘[n]o assurance [could] be given that these projections

5    [would] be realized,’” and “that ‘[a]ctual results may vary

6    from the predictions and these variations may be material.’”

7    802 F.2d 49, 56 (2d Cir. 1986).

8        The doctrine is one of a set of rules coping with the

9    problem that forward-looking information poses for

10   securities disclosure laws.   For decades, the disclosure of

11   forward-looking information was generally prohibited by the

12   Securities and Exchange Commission (SEC).9   That policy

13   changed in the 1970s.10   To encourage disclosure of forward-

14   looking information notwithstanding certain vulnerabilities,

15   including the tendency of predictions to be embarrassed by



          9
            E.g. Statement by the Commission on the Disclosure of
     Projections of Future Economic Performance, Securities Act
     Release No. 5362, 1973 WL 149309, at *1 (Feb. 2, 1973);
     Louis Loss et al., 2 Securities Regulation 77 & n.80 (4th
     ed. 2007).
          10
            See generally Safe Harbor for Forward-Looking
     Statements, Securities Act Release No. 2324, 1994 WL 562021
     (Oct. 13, 1994) (recounting history of SEC policy toward
     forward-looking information).

                                   11
1    the passage of time, 11 regulators developed safe harbors.

2    The SEC promulgated a regulatory safe harbor in 1979, see

3    Safe Harbor Rule for Projections, Securities Act Release No.

4    532, 1979 WL 181199 (June 25, 1979) (codified as amended at

5    17 C.F.R. §§ 230.175, 240.3b-6); and Congress followed suit

6    in 1995, see Private Securities Litigation Reform Act of

7    1995 § 102(a), Pub. L. No. 104-67, 109 Stat. 737, 749

8    (codified at 15 U.S.C. § 77z-2).   Bespeaks caution is the

9    courts’ contribution.

10       It is settled that the bespeaks-caution doctrine

11   applies only to statements that are forward-looking.     See P.

12   Stolz Family P’ship, 355 F.3d at 96-97 & n.3 (adopting

13   explicitly a forward-looking limitation to the bespeaks-

14   caution doctrine, but acknowledging that “elaborating such a

15   distinction may be unnecessary” “[b]ecause the ‘bespeaks

16   caution’ doctrine is often defined with respect to forward-

17   looking statements”).   We have consistently observed that

18   limitation.


          11
            See Statement by the Commission on the Disclosure of
     Projections of Future Economic Performance, Securities Act
     Release No. 5362, 1973 WL 149309, at *3 (Feb. 2, 1973).
                                   12
1        In P. Stolz Family Partnership, for example, the

2    doctrine insulated predictions of future capital-raising

3    transactions (“a sought-after $30 million or a future IPO”),

4    but not statements about “the existence of an agreement to

5    try to plan an IPO.”    Id. at 97-98.   Most recently, in

6    Rombach v. Chang, 355 F.3d 164 (2d Cir. 2004), we applied

7    bespeaks caution to statements of optimism concerning the

8    future performance of newly acquired businesses, see id. at

9    172-76; but not to alleged omissions of information

10   concerning existing financial and operational difficulties,

11   see id. at 173.    More examples are set out in the margin. 12


          12
               In Luce, we applied bespeaks caution to predictions
     of “potential cash and tax benefits.”     802 F.2d at 56.

          In I. Meyer Pincus & Associates, P.C. v. Oppenheimer &
     Co., Inc., we applied bespeaks caution to predictions of a
     security’s performance (though we doubted that the
     challenged statement expressed any prediction at all). 936
     F.2d 759, 762-63 (2d Cir. 1991)

          In Olkey v. Hyperion 1999 Term Trust, Inc., we applied
     bespeaks caution to predictions of an asset manager’s
     ability to hedge interest rate risk. 98 F.3d 2, 9-10 (2d
     Cir. 1996).

          In Hunt v. Alliance North American Government Income
     Trust, Inc., we declined to apply bespeaks caution to
     statements by a mutual fund that it “intended to use hedging
     devices” insofar as those statements suggested that such
     hedging devices were available to the fund even while “the
                                    13
1           Here, it is alleged for example that the prospectus

2    “failed to disclose the material fact that [MF Global’s]

3    Risk Management System protocols and procedures . . . did

4    not apply to the Company’s employees . . . [when] trading

5    for their own accounts.”    That allegation specifies an

6    omission of present fact, to which bespeaks caution does not

7    apply: The applicability of MF Global’s risk-management

8    system to employee accounts was ascertainable when the

9    challenged statements were made.    It was therefore error for

10   the district court to rely on the bespeaks-caution doctrine

11   to dismiss that claim.

12          The district court asked whether “Plaintiffs are

13   essentially alleging that Defendants failed to disclose the

14   risk of a future negative event.”    Rubin, 634 F. Supp. 2d at

15   468.    The doctrine then was applied to immunize any



     Fund managers [allegedly] knew (or recklessly disregarded)
     that these hedging techniques were not available (because
     they were too costly).” 159 F.3d 723, 728-29 (2d Cir.
     1998).

          In Halperin v. eBanker USA.com, Inc. , we applied
     bespeaks caution to statements of “future plans,” that
     “[t]he Company intends to endeavor to file registration
     statements with the SEC,” which the plaintiffs alleged was
     materially misleading insofar as it overstated the
     likelihood of registration. 295 F.3d 352, 355, 359-60 (2d
     Cir. 2002) .

                                    14
1    statement that the court deemed to be “essentially alleging”

2    the non-disclosure of a risk, regardless of whether the

3    statement looked to the future or was rooted in the known

4    present:

 5               The Court finds that it is appropriate to apply
 6               the “bespeaks caution” doctrine here because
 7               Plaintiffs’ objections to misrepresentations about
 8               specific or general shortcomings in MF Global’s
 9               risk management system that existed at the time
10               the Prospectus was issued are, in fact, objections
11               to Defendants’ alleged failure to disclose the
12               possibility that the risk management system might
13               be unable to prevent future negative outcomes.

14   Id. at 472.    This misstates the threshold test, and applies

15   the bespeaks-caution doctrine too broadly.13


          13
               In the alternative, the district court held that the
     plaintiffs’ risk-management allegations failed to state a
     claim because they focused on systemic risk-management
     problems only in February 2008, when the trading incident
     occurred, not in July 2007, at the time the prospectus and
     registration statement issued:

                 Plaintiffs’ allegations are based on information
                 about the MF Global risk management system that
                 was disclosed after the February 2008 Trading
                 Incident. . . . [T]here is nothing to indicate
                 that this was the state of affairs in July 2007,
                 when the Prospectus was issued. In other words,
                 Plaintiffs have offered no factual averments that
                 the alleged misrepresentations and omissions were,
                 in fact, false or misleading at the time the
                 Prospectus was issued.

     Rubin, 634 F. Supp. 2d at 474.      This conclusion fails to

                                    15
1         The district court worried that “[p]laintiffs in

2    securities fraud actions can easily characterize many

3    alleged misrepresentations or omissions regarding the risk

4    of future negative events as statements that simply concern

5    discrete present or historical fact.”   Id. at 468.   “For

6    example, an allegation that a corporation failed to disclose

7    the risk that it would default on outstanding financial

8    obligations in the future could just as easily be

9    characterized as a failure to disclose present or historical

10   financial instability.”   Id.


     draw a reasonable inference in the plaintiffs’ favor. See,
     e.g., In re DDAVP Direct Purchaser Antitrust Litig., 585
     F.3d 677, 692 (2d Cir. 2009) (stating that courts must
     “draw[] all inferences in favor of the plaintiff” when
     ruling on a motion to dismiss). Depending on the problem,
     its existence in February 2008 may support an inference that
     it was present six months earlier. This is sufficient “‘to
     raise [the plaintiffs’] right to relief above the
     speculative level.’” Arista Records, LLC v. Doe 3, 604 F.3d
     110, 120 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly,
     550 U.S. 544, 555 (2007)).

          Because we reject this alternative basis, we need not
     reach the plaintiffs’ argument that the district court erred
     by denying their motion to replead. The plaintiffs argue
     here that their proferred repleading remedied deficiencies
     in the operative complaint by sufficiently showing that MF
     Global’s risk-management lacunae existed when the prospectus
     and registration statement issued. The operative complaint
     supports that inference without amendment.
                                     16
1        Investors are interested in issuer statements only

2    insofar as those statements bear on the future.   But while

3    it is true that predictions about the future can represent

4    interpretations of present facts (and vice versa), there is

5    a discernible difference between a forecast and a fact, and

6    courts are competent to distinguish between the two.     A

7    forward-looking statement (accompanied by cautionary

8    language) expresses the issuer’s inherently contingent

9    prediction of risk or future cash flow; a non-forward-

10   looking statement provides an ascertainable or verifiable

11   basis for the investor to make his own prediction.

12       The line can be hard to draw, and we do not now

13   undertake to draw one.   However, a statement specifying the

14   risk of default is distinct from a statement of present or

15   historical financial instability, even though they both bear

16   upon the same risk.   And a statement of confidence in a

17   firm’s operations may be forward-looking--and thus insulated

18   by the bespeaks-caution doctrine--even while statements or

19   omissions as to the operations in place (and present

20   intentions as to future operations) are not.


                                   17
1          A statement may contain some elements that look forward

2    and others that do not.    Shaw, 82 F.3d at 1213.   A

3    characterization of present or historical fact may be

4    partially predictive. 14   See, e.g., id. at 1213 (holding

5    that a statement that restructuring reserve was “adequate”

6    is forward-looking insofar as it “suggests that [the issuer]

7    would take no further restructuring charges in the near-term

8    future.”).   A present fact like an appraisal or valuation

9    may depend on predictions: of future cash flows for example,

10   or future risks.   Donald C. Langevoort, Disclosures That

11   “Bespeak Caution”, 49 Bus. Law. 481, 489 (1994).        A forecast

12   may extrapolate present or historical facts into the future.

13   Id.   But in each instance the forward-looking elements and

14   the non-forward-looking are severable.



           14
            Some of the “puffery” cases (those analyzing puffing
     of present or historical facts) can be seen as falling into
     this category: To the extent that puffery suggests a rosy
     future, the principle underlying bespeaks caution applies.
     See, e.g., ECA, Local 134 IBEW Joint Pension Trust of Chi.
     v. JP Morgan Chase Co., 553 F.3d 187, 205-06 (2d Cir. 2009)
     (“Puffery” statements that issuer’s risk management was
     effective and “highly disciplined” would not be relied upon
     by a reasonable investor because they “did not, and could
     not, amount to a guarantee that [the issuer’s] choices would
     prevent failures in its risk management practices.”).
                                    18
1         Here, characterizations of MF Global’s risk-management

2    system--that the system was “robust,” for example--invite

3    the inference that the system will reduce the firm’s risk.

4    However, bespeaks caution does not apply insofar as those

5    characterizations communicate present or historical fact as

6    to the measures taken.   Rombach, 355 F.3d at 173

7    (“Cautionary words about future risk cannot insulate from

8    liability the failure to disclose that the risk has

9    transpired.”).

10        We remand to the district court to analyze the

11   plaintiffs’ remaining allegations under the standard set out

12   above.15



          15
            MF Global remarks in a footnote that the heightened
     pleading standard of Federal Rule of Civil Procedure 9(b)
     may apply to at least some of the plaintiffs’ allegations.
     See generally Rombach, 355 F.3d at 171 (holding that “the
     heightened pleading standard of Rule 9(b) applies to Section
     11 and Section 12(a)(2) claims insofar as the claims are
     premised on allegations of fraud”). The district court
     declined to address this issue, see Rubin, 634 F. Supp. 2d
     at 469, and so do we. See, e.g., Tolbert v. Queens Coll.,
     242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate
     rule that issues adverted to in a perfunctory manner,
     unaccompanied by some effort at developed argumentation, are
     deemed waived.” (internal quotation marks omitted)); Norton
     v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
     sufficiently argued in the briefs are considered waived and
     normally will not be addressed on appeal.”).
                                   19
1

2                                 III

3        The plaintiffs also challenge the dismissal of their

4    “client accounts” allegations: that the prospectus failed to

5    disclose “that traders did not have limits when trading for

6    clients, and that with the proper password anyone could

7    access client accounts and trade in them at any time,”

8    Rubin, 634 F. Supp. 2d at 470.     The district court dismissed

9    these allegations on the ground that the plaintiffs’ alleged

10   losses resulted from the failure to manage trading risks in

11   accounts of non-clients (such as Dooley), and that the

12   losses therefore were not caused by alleged misstatements or

13   omissions concerning accounts of clients.

14       Loss causation is not an element of a plaintiff’s prima

15   facie case; rather, the absence of loss causation is an

16   affirmative defense.   See 15 U.S.C. §§ 77k(e), 77l(b).    A

17   causation defense prevails if the defendant “proves” that an

18   otherwise recoverable loss was not caused by the alleged

19   misstatement or omission.   Id.    “An affirmative defense may

20   be raised by a pre-answer motion to dismiss under Rule


                                   20
1    12(b)(6) . . . if the defense appears on the face of the

2    complaint.”   Pani v. Empire Blue Cross Blue Shield, 152 F.3d

3    67, 74 (2d Cir. 1998).

4        The district court dismissed the plaintiffs’ client

5    accounts allegations because “the Trading Incident that

6    sparked the sharp drop in MF Global’s stock price, which

7    caused the losses that Plaintiffs complain of, had nothing

8    to do with MF Global’s trading for clients or trading in or

9    access to client accounts. . . .   Rather, the Trading

10   Incident involved trades in a non-client account.”    Rubin,

11   634 F. Supp. 2d. at 470.

12       This is sound as far as it goes.   But the Dooley

13   trading incident (and events precipitated by it) revealed

14   that risk-management deficiencies affected client accounts

15   as well.   Shortly after the Dooley incident, MF Global

16   “acknowledged that existing internal controls could have

17   stopped Mr. Dooley’s trades from being processed--but were

18   turned off in a few cases to allow for speedier transactions

19   by brokers at the firm who traded for themselves or took

20   customer orders by phone.”   (emphasis added).   Thus, at


                                   21
1    least as to phone orders, the firm’s risk-management

2    controls did not reliably constrain brokers who executed

3    trades on behalf of clients.    Unsurprisingly, a managing

4    director at Fitch Ratings publicly stated that the Dooley

5    incident “does open the view that [MF Global’s] customers

6    are taking more risk than we thought.”     (emphasis added).

7    This concern--likely shared by others--may have had a

8    negative impact on MF Global’s stock price because client

9    business might be lost and because clients’ market risks are

10   at least partially shared by the firm.

11       However, neither the Dooley trading incident nor

12   subsequent events revealed to the public that “anyone with

13   the password could access client accounts . . . and trade at

14   will therein,” as the plaintiffs allege.     This allegation

15   concerns a security risk, of client fund misappropriation--

16   not the sort of risk made plain by and after the Dooley

17   losses.   It is therefore “app[arent] on the face of the

18   complaint,” Pani, 152 F.3d at 74, that the stock price

19   decline (and the plaintiffs’ resulting losses) cannot be

20   attributed to the prospectus’s failure to disclose that


                                    22
1    alleged fact; and the allegation was properly dismissed.

2        Accordingly, we affirm the district court insofar as it

3    dismissed the plaintiffs’ allegation concerning access to

4    client accounts; but vacate and remand insofar as it

5    dismissed their allegation that telephone orders were not

6    subject to risk management.

7                      *           *        *

8        For the foregoing reasons, the district court’s

9    judgment is affirmed in part and vacated in part, and the

10   case is remanded for further proceedings consistent with

11   this opinion.




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