17-598
Waterford Township Police & Fire et al. v. Regional Mgmt. Corp. et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
26th day of January, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________
WATERFORD TOWNSHIP POLICE & FIRE RETIREMENT
SYSTEM, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, CITY OF ROSEVILLE
EMPLOYEES’ RETIREMENT SYSTEM,
                     Plaintiffs-Appellants,

                          v.                                               17-598

REGIONAL MANAGEMENT CORP., PALLADIUM
EQUITY PARTNERS III, L.P., PALLADIUM EQUITY
PARTNERS III, L.L.P., PARALLEL 2005 EQUITY FUND, LP,
PARALLEL 2005 EQUITY PARTNERS, LP,
THOMAS F. FORTIN, C. GLYNN QUATTLEBAUM,
DONALD E. THOMAS, DAVID PEREZ, ROEL C.
CAMPOS, RICHARD T. DELL’AQUILA, RICHARD
A. GODLEY, JARED L. JOHNSON, ALVARO G.
DE MOLINA, CARLOS PALOMARES, ERIK A. SCOTT,
STEPHENS INC., KEEFE, BRUYETTE & WOODS, INC.,
BMO CAPITAL MARKETS CORP., JMP SECURITIES LLC.,
FBR CAPITAL MARKETS & CO.,
                         Defendants-Appellees.
_____________________________________________________
Appearing for Appellants:     DOUGLAS WILENS (Samuel H. Rudman, Joseph Rusello, on the
                              brief), Boca Raton, FL.

Appearing for Appellees:      GEORGE S. WANG, Simpson Thacher & Bartlett LLP, New
                              York, N.Y. for Regional Management Corp., Palladium entities,
                              Parallel entities, and individual defendants.

                              JESSICA CORLEY, Alston & Bird LLP (Joseph Tully, on the
                              brief), Atlanta, GA for Stephens Inc., Keefe, Bruyette & Woods,
                              Inc., BMO Capital Markets Corp., JMP Securities LLC, FBR
                              Capital Markets & Co.

Appeal from the United States District Court for the Southern District of New York (Swain, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

       Appellants Waterford Township Police & Fire Retirement System and City of Roseville
Employees’ Retirement System (“Appellants”) appeal from the January 27, 2017 opinion and
order of the United States District Court for the Southern District of New York (Swain, J.),
denying them leave to file a third amended complaint. Waterford Township Police & Fire
Retirement System v. Regional Mgmt. Corp., 2017 WL 395206 (S.D.N.Y. Jan. 27, 2017)
(“Waterford Township II”). We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        We review de novo denials of leave to amend complaints on grounds of futility. Kassner
v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 242 (2d Cir. 2007). Reviewing the denial of a
motion to amend on futility grounds effectively requires us to determine whether the proposed
amended complaint succeeds in stating a claim. Id. at 244; IBEW Local Union No. 58 Pension
Trust Fund & Annuity Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir.
2015). In so doing, we accept all well pled allegations as true and draw all plausible inferences in
plaintiffs’ favor. See Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).

         Appellants’ complaint first alleges that Regional Management and its executives
(collectively, “RM”) made material misrepresentations about their underwriting practices. The
district court found that many of these were inactionable because they were “in the nature of
belief or opinion.” Waterford Township Police & Fire Retirement System v. Regional Mgmt.
Corp., 2016 WL 1261135, at *10 (S.D.N.Y. Mar. 30, 2016) (“Waterford Township I”). It further
found that, the complaint failed to establish that any of these statements were misrepresentations
in any case, since it contained no facts indicating that RM “did not believe the statements were
true at the time they were made.” Id.

       We need not address the former ruling, because we agree with the latter. The third
amended complaint does not indicate that the statements RM made were “misleading as to a
material fact.” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 38 (2011) (citation and



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emphasis omitted). Appellants refer to the statements of a number of former employees to
support their claim that RM misled investors about its underwriting practices. Although many of
these statements indicate that RM’s branches had shoddy underwriting practices and that live
check loans were especially likely to result in defaults, none of them contains any information
either way as to whether underwriting for live check loans, which occurred at RM headquarters,
was especially bad during the Class Period. These facts are just as consistent with the possibility
that RM believed what it was saying about its underwriting practices (and that its beliefs were
correct) as the opposite. That is not enough to survive a motion to dismiss. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
to relief.”) (citation and internal quotation marks removed).

        Appellants also allege that RM made material misrepresentations about the adequacy of
staffing in its loan servicing departments. We agree with the district court that these allegations
amount to “fraud by hindsight” because “Plaintiffs plead no facts demonstrating that the
Company did not actually believe that it could achieve increased labor productivity with the
increased loan volume at the time it made the positive statements, nor do they identify any
contemporaneous facts that would have rendered such a belief unfounded.” Waterford Township
I, 2016 WL 1261135, at *11; see also Novak v. Kasaks, 216 F.3d 300, 309 (2d Cir. 2000)).
Investors frequently clamor for cutting labor costs to pay out more in profits. Such a strategy
risks favoring short-term payouts at the expense of the medium term. We need something more
than hypotheticals to conclude that such a ho-hum feature of capitalist enterprise was in fact a
guise to defraud those it often benefits.

        We have considered the remainder of Appellants’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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