                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT           FILED
                            ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                   No. 07-11178                       MAR 25, 2010
                             ________________________                  JOHN LEY
                                                                         CLERK
                         D.C. Docket No. 06-80652-CV-KLR

SFM HOLDINGS, LTD.,

                                                                       Plaintiff-Appellant,
                                           versus


BANC OF AMERICA SECURITIES, LLC,

                                                                      Defendant-Appellee.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________

                                     (March 25, 2010)

Before TJOFLAT and CARNES, Circuit Judges, and THRASH,* District Judge.

THRASH, District Judge:




       *
       Honorable Thomas W. Thrash, United States District Judge for the Northern District of
Georgia, sitting by designation.
       SFM Holdings, Ltd. appeals the dismissal with prejudice of its complaint

seeking damages for breach of fiduciary duty and constructive fraud. For the

reasons set forth below, we affirm the judgment of the district court.

                              I. Facts and Procedural History

           Appellant SFM Holdings, Ltd. (“SFM”) is one of 178 investors defrauded

in one of the largest securities fraud cases in Florida history. The perpetrators,

John Kim and Won Lee, operated as investment advisers using various entities,

including Shoreland Trading. Dr. Salomon Melgen is the president and general

partner of SFM. John Kim convinced Dr. Melgen to set up a brokerage account

with Banc of America Securities, LLC. (Compl. ¶ 14).1 Dr. Melgen never had any

direct contact with Banc of America Securities or its employees. When the account

was set up, Dr. Melgen ceded a “limited” power of attorney to trade securities in

the Banc of America Securities prime brokerage account. (Id. ¶¶ 14-17). Two of

the documents completed to open the account were the Prime Broker Margin

Account Agreement (“PB Agreement”) and the Institutional Account Agreement

(“IA Agreement”). The PB Agreement clearly and plainly stated that Banc of




       1
         Because the district court decided this case on a motion to dismiss, we accept the
allegations pled in the complaint as true. Instituto De Prevision Militar v. Merrill Lynch, 546
F.3d 1340, 1342 (11th Cir. 2008).

                                                 2
America Securities – referred to in the agreement as BofA – was not an adviser or

fiduciary.

      Customer acknowledges that none of the BofA Entities or their
      respective agents or affiliates is acting as a fiduciary for or an adviser
      to Customer in respect of this Agreement or any transaction it may
      undertake with the BofA Entities; Customer understands that the
      BofA Entities are not acting as investment advisers or soliciting
      orders, that the BofA Entities are not advising it, performing any
      analysis, or making any judgment on any matters pertaining to the
      suitability of any order, or offer any opinion, judgment or other type
      of information pertaining to the nature, value, potential, or suitability
      of any particular invest[ment].

(Appellee’s Br., Ex. A, ¶ 11(b)). The IA Agreement established Banc of America

Securities as SFM’s “agent for the purposes of buying and selling securities.”

(Appellee’s Br., Ex. B, ¶ 3).

      On September 28, 2004, SFM put $10 million into the account with Banc of

America Securities. Soon thereafter another $2.3 million was put into the account.

(Compl. ¶ 22). Within a month, SFM was losing money in the account, and Dr.

Melgen told John Kim that he wanted to close the account. (Id. ¶ 23). In

response, Kim convinced Dr. Melgen to leave his money in the account in

exchange for a written guarantee of his principal by Kim and Shoreland Trading.

(Id. ¶ 24). Won Lee was also a partner with Kim in Shoreland. The complaint

alleges that Won Lee had been trading extensively in SFM’s account. Shortly



                                          3
thereafter, Lee attempted to make an illegal trade -- selling a large amount of stock

short without arranging to borrow the stock first -- in the account. (Compl. ¶ 42).

Upon discovering the illegal trade the next day, Banc of America Securities

ordered Lee to cover the short sale. The next day, Kim or Lee repeated the illegal

short sale. Banc of America Securities then ordered Lee to remove all of his

accounts (including SFM’s) from Banc of America Securities. (Compl. ¶ 45).

Nevertheless, Banc of America Securities permitted Lee and Shoreland to trade in

the account for more than four weeks. (Compl. ¶ 47). According to the complaint,

Banc of America Securities never notified Dr. Melgen of any suspicious trading

activity in the account. (Compl. ¶ 51).

      On November 2, 2004, Banc of America Securities received a letter signed

by Dr. Melgen directing it to transfer SFM’s assets to Shoreland’s account. Dr.

Melgen now claims that letter was a forgery. On the same day, Won Lee wrote

Banc of America Securities confirming that he would accept SFM’s assets into

Shoreland’s account with Banc of America Securities. Within two weeks,

Shoreland transferred the money to another company, Wedbush Morgan

Securities, LLC. This account was in the name of Shoreland only. (Compl. ¶ 29).

All of the money was then stolen or lost in disastrous trading.




                                          4
       SFM filed this action against Banc of America Securities, claiming damages

due to violations of federal and state securities laws, breach of fiduciary duty, and

constructive fraud.2 On the Defendant’s motion, the district court dismissed the

claims with prejudice. SFM appeals the dismissal of the breach of fiduciary duty

and constructive fraud claims.

                        II. Jurisdiction and Standard of Review

       We have jurisdiction over the appeals of final decisions of the district court

pursuant to 28 U.S.C. § 1291. We exercise de novo review as to the district

court’s decision to grant a motion to dismiss. Cachia v. Islamorada, 542 F.3d 839,

841-42 (11th Cir. 2008). We review the district court’s refusal to grant leave to

amend for abuse of discretion, although we exercise de novo review as to the

underlying legal conclusion that an amendment to the complaint would be futile.

Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999).




       2
         SFM has filed suit in federal court to recover assets from Shoreland’s Receivership
Estate. That case is also before Judge Ryskamp. See SFM Holdings, Ltd. v. John Kim,
Shoreland Trading, LLC, Won Lee, Yung Kim, and Guy Lewis, Esq. as Receiver for Shoreland
Trading, LLC, Case No. 06-80801-RYSKAMP. Additionally, SFM filed a state court action
against John Kim, Won Lee, Shoreland, and Banc of America Securities.

                                              5
                                    III. Discussion

                                           A.

      First, SFM argues that the district court erred in converting the Defendant’s

Rule 12(b)(6) motion to dismiss into a motion for summary judgment without

giving notice to the Plaintiff. Reading the Order of the district court, it is clear

that the court did not do that. The district court did, however, consider and rely

upon the PB Agreement in granting the Defendant’s motion to dismiss. According

to SFM, consideration of the document converted the Rule 12(b)(6) motion to

dismiss into a Rule 56 motion for summary judgment, which would have required

notice of the conversion to the parties. SFM claims it was prejudiced by the lack

of notice and the lack of opportunity for discovery.

      The Defendant argues that the district court’s consideration of the PB

Agreement was proper because the document was incorporated by reference into

the complaint and the document was central to the Plaintiff’s claim. In general, if

it considers materials outside of the complaint, a district court must convert the

motion to dismiss into a summary judgment motion. See Fed. R. Civ. P. 12(b).

There is an exception, however, to this general rule. In ruling upon a motion to

dismiss, the district court may consider an extrinsic document if it is (1) central to

the plaintiff’s claim, and (2) its authenticity is not challenged. Day v. Taylor, 400

                                           6
F.3d 1272, 1276 (11th Cir. 2005); see also Maxcess, Inc. v. Lucent Technologies,

Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“a document outside the four corners of

the complaint may still be considered if it is central to the plaintiff’s claims and is

undisputed in terms of authenticity.”). SFM does not dispute the authenticity of

the PB Agreement. It does argue that the document was not incorporated by

reference into the complaint and that, even if it was, the document was not central

to its claims.

       Although the PB Agreement was not attached to the complaint, the

complaint noted that the brokerage account was opened by “documents provided

to John Kim and Won Lee by Banc of America Securities.” (Compl. ¶ 18). These

documents were repeatedly described as “account opening documents.” (Id.)

SFM does not deny that the PB Agreement is one of the account opening

documents mentioned in the complaint. The Defendant argues that the agreement

was the account opening document that established Banc of America Securities as

a prime broker for SFM and absolved Banc of America Securities from any

fiduciary duty as to the account. According to SFM, another document, the IA

Agreement, established Banc of America Securities as its executing broker. Under

SFM’s theory, Banc of America Securities’s role as an executing broker imposes

upon it a fiduciary duty. However, there is no doubt that the PB Agreement

                                           7
determined the terms of the relationship between SFM and Banc of America

Securities. The agreement set forth the “terms and conditions” on which Banc of

America Securities will “open and maintain accounts for and otherwise transact

business with the customer.... ” (Appellee’s Br., Ex. A at 1). Further, to the extent

that the terms of the PB Agreement conflicted with another agreement, it stated

that it controlled over any other agreements between Banc of America Securities

and its customer. (Appellee’s Br., Ex. A ¶ 20). We have previously held that such

relationship-forming contracts are central to a plaintiff’s claim. Maxcess, 433

F.3d at 1340 n.3. The district court did not err in considering the PB Agreement in

ruling on the motion to dismiss.

      In its briefing on appeal, SFM relies on the other account opening

document, the IA Agreement, to argue that Banc of America Securities had a

fiduciary duty. Specifically, SFM argues that such a duty was established because

the IA Agreement made Banc of America Securities its “agent for the purposes of

buying and selling securities.” (Appellee’s Br., Ex. B, ¶ 3). The Defendant argues

that SFM never relied on the IA Agreement to establish an agency in the district

court proceedings, and that it cannot do so now. See, e.g., Access Now, Inc. v.

Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has

repeatedly held that an issue not raised in the district court and raised for the first

                                           8
time in an appeal will not be considered by this court.”) (citations omitted). In this

case, SFM did not waive this argument. Rather, it made its agency argument

relying on the PB Agreement, which the Defendant acknowledges “contained

nearly identical language.” (Appellee’s Br. at 35, n.11). Further, the IA

Agreement was already in the record, albeit for purposes of opposing the

Defendant’s motion to transfer venue. SFM put the IA agreement in the record

before the district court, and it now asserts that the IA agreement is one of the

account opening documents, which are central to its claim. Also, as we have

already explained, the PB Agreement sets the terms of the parties’ relationship,

even when considered alongside of the IA agreement. For these narrow reasons,

and for the sake of completeness, we will consider that document on appeal along

with the PB agreement as one of the account opening documents.

                                         B.

      SFM argues that the dismissal of its claims was improper because it alleged

that Banc of America Securities was an executing broker in addition to a prime

broker. The Defendant does not deny that it may have been both. “Banc of

America Securities was engaged as a prime and executing broker.” (Appellee’s

Br. at 14). Traditionally, executing brokers (distinct from the prime broker) take,

or execute, trades in direct communication with the customer. The prime broker’s

                                          9
role is usually ministerial -- it allows the customer to open an account with it, and

allows the executing broker to make trades for the benefit of the customer in the

prime broker’s name. See Practicing Law Institute, The SEC Speaks in 2000:

Materials Submitted by the Division of Investment Management, 1169 PLI/Corp

383, 642-43 (2000 Practicing Law Institute) (“The client or its fiduciary closes the

short position by notifying [the prime broker] that it has placed a covering

transaction. The client covers the transaction by purchasing securities through an

executing broker who confirms the trade with [the prime broker, who] then clears

and settles the transaction.”). Banc of America Securities claims that “[o]ften,

prime brokers execute transactions as well.” (Appellee’s Br. at 14). To clear up

this confusion, Banc of America Securities argues that it was not an “introducing

broker.” An introducing broker is usually the one who advises the customer and

exercises discretion over its prime brokerage account.

      SFM does not specifically allege that Banc of America Securities acted as

an introducing broker. SFM does argue, however, that the terms “prime broker”

and “clearing broker” are interchangeable, both performing ministerial services for

executing and introducing brokers, respectively. Generally, clearing brokers

execute, clear, and settle trades for the introducing brokers who have direct

relationships with the client. Stuart J. Kaswell & Daniele Marchesani, The ABCs

                                          10
of Broker-Dealer Regulation 2007: Broker-Dealer Regulation -- An Overview,

1604 PLI/Corp 9, 12 (2007 Practicing Law Institute). Like prime brokers, clearing

brokers ordinarily owe no fiduciary duty to the customers of introducing brokers.

Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293,

1296 n.12 (11th Cir. 2002).

       SFM suggests that Banc of America Securities’s characterization of its role

reflects a fundamental misunderstanding of traditional prime brokerage

arrangements.3 To resolve this dispute over terminology, we examine a Securities

and Exchange Commission No-Action Letter (“No-Action Letter”) discussing the

nature of the prime brokerage industry. See Prime Broker Committee Request,

SEC No-Action Letter, 1994 WL 808441 (January 25, 1994). By its terms, the PB

Agreement is subject to the No-Action Letter. (Appellee’s Br., Ex. A, ¶ 2). As

described in the No-Action Letter, the customer, prime broker, and executing

broker are typically “distinct parties.” (No-Action Letter at *1). Usually, “the

executing broker takes the order from the customer, yet the prime broker typically

issues the confirmation [of the order].” (Id. at *5). Nevertheless, the No-Action

Letter does predict variations on this model. Some brokers may act “as executing


       3
         It is worth noting that none of the precedents that the Plaintiff cites for the proposition
that prime and executing brokers are synonymous with clearing and introducing brokers,
respectively, mention prime brokers.

                                                  11
brokers who clear prime broker transactions.” (Id. at *7). And, “the clearing firm

of an introducing broker acting as an executing broker” must execute a prime

brokerage contract listing the responsibilities of the parties. (Id. at *8). Moreover,

the No-Action Letter contemplates a distinction between an executing broker and

an introducing broker. (Id. at *8) (“In cases involving introducing broker-dealers

who act as executing brokers, the executing broker must inform each broker-dealer

clearing its transactions that it intends to act as an executing broker.”).

      These distinctions may have significance in the regulatory context that are

absent here. Whether Banc of America Securities had a fiduciary duty to SFM is

determined by the substantive agreement of the parties. It is not determined by

labels placed on the relationship. Kim, Lee and Shoreland acted as SFM’s

investment advisor. Kim exercised discretionary control over the account

according to the allegations of the complaint. The PB Agreement explicitly stated

the Banc of America Securities was not acting as an adviser or fiduciary to the

customer. It had no direct contact with SFM. Given this relationship, the fiduciary

is the party who has direct contact with and provides investment advice to the

customer. See McDaniel v. Bear Stearns & Co., 196 F. Supp. 2d 343, 353

(S.D.N.Y. 2002) (clearing firms only liable when they become “actively and

directly involved in the introductory broker’s actions” and not when performing

                                           12
mere “routine clearing functions.”). Even if Banc of America Securities actually

served as the prime and executing broker, “[i]n no way, shape or form does the

complaint plead that [Banc of America Securities] was making decisions regarding

the accounts [but rather] simply executed the [SFM] transactions along with the

other transactions sent to it by [Kim].” Dillon v. Militano, 731 F. Supp. 634, 636

(S.D.N.Y. 1990).

      SFM argues that the IA Agreement created a fiduciary duty with this

language: “Client appoints Banc of America Securities as its agent for the

purposes of buying and selling securities in its Cash Account.” (Appellee’s Br.,

Ex. B, ¶ 3). As part of that agency, the agreement authorized Banc of America

Securities to “act upon client’s instructions or those of its attorney-in-fact.” (Id.)

Under SFM’s theory, that agency created a fiduciary duty, even though the same

provision in the agreement states that Banc of America Securities “shall incur no

liability in acting upon any such instructions . . . provided such instructions

reasonably appear genuine to Banc of America Securities.” (Id.) The IA

Agreement, standing alone, did not create a fiduciary duty of Banc of America

Securities to SFM. See Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732

F.2d 859, 862 (11th Cir. 1984) (no liability where broker discharged its limited

duty of executing stock orders). Any actions Banc of America Securities

                                           13
performed at the behest of Kim were authorized by the IA Agreement. Further,

even supposing that Won Lee forged a letter to transfer Dr. Melgen’s funds into

Shoreland’s account (this is disputed), the agreement authorized Banc of America

Securities to act upon any client instructions that “reasonably appear[ed] genuine.”

(Id.) Therefore, Banc of America Securities’s actions were appropriate within the

limited agency created by the IA Agreement. Significantly, the agreement

provided that Banc of America Securities could accept “without any inquiry or

investigation by Banc of America Securities ... any other instructions concerning

said Account” from an introducing broker. (Appellee’s Br., Ex. B, ¶ 27).

      SFM argues that Shoreland was not an introducing broker in this

relationship, but only a mere adviser. The argument must fail. First, Shoreland

was registered as a broker-dealer with the Securities and Exchange Commission

until its registration was revoked in 2007. Shoreland Trading, LLC, 24 S.E.C.

Release No. 55688, 2007 WL 1285754 (May 1, 2007). Further, the IA Agreement

defines an introducing broker as “another broker through whose courtesy Client’s

Account has been introduced.” (Appellee’s Br., Ex. B, ¶ 27). There is no dispute

that Shoreland (acting through its representatives) set up the prime brokerage

account. Shoreland was acting as an introducing broker for SFM. Finally, the

complaint acknowledges that Lee controlled Shoreland Trading. (Compl. ¶ 12).

                                         14
Paragraph 27 of the IA Agreement absolves Banc of America Securities of liability

for the acts and omissions of the introducing broker’s officers, employees, or

agents. (Appellee’s Br., Ex. B, ¶ 27). Banc of America Securities performed to

the extent of the agency created in the IA Agreement. The complaint does not

allege that Banc of America Securities failed to settle and clear all trades. SFM’s

breach of fiduciary duty and construction fraud claims were properly dismissed.

       We also find that the district court did not abuse its discretion in dismissing

the complaint with prejudice. In its briefing on appeal, SFM seeks leave to amend

because the factual allegations could support a breach of contract claim. However,

as discussed above, Banc of America Securities acted pursuant to the IA

Agreement and the PB Agreement. Banc of America Securities’s compliance with

its obligations under those documents precludes liability for breach of contract.

Therefore, the suggested amendment would be futile.

                                  IV. Conclusion

      For the reasons set forth above, the judgment of the district court is

AFFIRMED.




                                         15
TJOFLAT, Circuit Judge, concurring specially:

      I concur in the court’s judgment. I write separately because I believe that

the district court’s judgment should be affirmed on a more limited basis than the

one the court takes.

      The central question in this appeal is whether SFM Holdings, Ltd. (“SFM”)

has sufficiently pled that Banc of America Securities (“BAS”) owed SFM the

fiduciary duty to supervise those purporting to trade on its behalf. To me, the

answer is no. The parties’ contracts plainly preclude the argument that BAS owed

SFM the fiduciary duty alleged. I write separately because I believe that there is

no need to go beyond the contractual language and the allegations in the complaint

to affirm the district court’s judgment.

      As the court correctly notes, the existence and scope of a fiduciary duty is

determined by the relationship between parties. See generally, e.g., Press v.

Chem. Inv. Servs. Corp., 166 F.3d 529, 536 (2d Cir. 1999) (“Simply put, the

fiduciary obligation that arises between a broker and a customer . . . is limited to

matters relevant to affairs entrusted to the broker.”) (internal quotation and citation

omitted); Ward v. Atl. Sec. Bank, 777 So. 2d 1144, 1147 (Fla. 3d Dist. Ct. App.

2001) (examining the “facts and circumstances” of the parties’ relationship to

determine the existence of a fiduciary duty). And where, as here, the relationship

                                           16
is established by contract, the existence and scope of a fiduciary duty may be

ascertained by examining the contractual terms. See Chipser v. Kohlmeyer & Co.,

600 F.2d 1061, 1066–67 (5th Cir. 1979).1

       The agreement between SFM and BAS demonstrates that BAS did not have

the fiduciary duty alleged in the complaint. Therefore, there is no need to delve

into a discussion about the general roles of prime, executing, introducing, and

clearing brokers. Whatever fiduciary obligations they may typically take on in the

abstract, BAS did not assume those alleged here.

       The complaint alleges BAS owed SFM the fiduciary duty to supervise third

parties trading and managing its account2 in order to prevent Lee and Shoreland

from making unauthorized trading decisions in the SFM account; to notify SFM

that Lee and Shoreland had made trades it claims were made without its consent;

to notify SFM that it deemed those managing the account “untrustworthy”; to

notify SFM that it ordered Lee to remove all accounts he managed—including the

SFM account—out of BAS; and to take due care to confirm the authenticity of the

forged transfer letter before transferring assets from the SFM account.

       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
       2
          It is undisputed that Kim, Lee, or Shoreland were directly responsible for the trading
activity and asset transfer discussed in the complaint.

                                                17
           The parties’ agreement3 demonstrates that supervising for SFM third

parties managing its account was not a fiduciary duty entrusted to BAS. Indeed,

their agreement expressly provides that it was not.

       The PB Agreement plainly states that BAS would not act as a fiduciary:


       [BAS] are not Advisors of Fiduciaries:
            ....
            Customer acknowledges that none of the BofA Entities or their
            respective agents or affiliates is acting as a fiduciary for or an
            advisor to Customer in respect of this Agreement or any
            transaction it may undertake with BofA Entities; Customer
            understands that the BofA Entities are not acting as investment
            advisers or soliciting orders, that the BofA Entities are not
            advising it, performing any analysis, or making any judgment
            on any matters pertaining to the suitability of any order, or
            offer any opinion, judgment or other type of information
            pertaining to the nature, value, potential or suitability of any
            particular invest.


(Appellee’s Br., Ex. A, ¶ 11)

       What is more, the PB Agreement anticipates that the customer may utilize

third parties to trade in or manage the customer’s account and makes clear that

BAS would not supervise or pass judgment on such parties’ actions for the



       3
          I use the term agreement to refer collectively, unless otherwise indicated, to the
agreements referred to in the complaint and attached to BAS’s motion to dismiss and SFM’s
response to that motion, i.e., the Prime Broker Margin Account Agreement (“PB Agreement”)
and the Institutional Account Agreement (“IA Agreement”), respectively.

                                              18
customer. For example, the PB Agreement provides that SFM may utilize other

brokers, known as executing brokers, to place orders, in which case BAS would

act as SFM’s prime broker. (Id. ¶ 3.) The PB Agreement also acknowledges that

SFM may permit another type of third party (the “Advisor”) to have discretionary

management authority over the account. (See, e.g., id. ¶¶ 3(d), 10(b).)

       Under the PB Agreement, when third parties trade in or manage the account,

they are acting on behalf of the customer and not as an agent of BAS.

Additionally, as the PB Agreement explains, BAS will not supervise or otherwise

provide advice to the customer regarding decisions made by these third parties.

For executing brokers, the PB Agreement states:

       As between Customer and BAS, the Executing Broker will be acting
       as an agent of Customer for the purpose of carrying out Customer’s
       instructions with respect to the purchase, sale and settlement of
       securities. Customer understands that no order may be legally
       accepted by BAS as Prime Broker from an Executing Broker with
       whom BAS has not entered into a Prime Brokerage Agreement.

(Id. ¶ 3(a).)4 The PB Agreement consistently maintains that a third party making

decisions for a customer’s account will not be supervised by BAS for the

       4
          SFM argues that BAS had the fiduciary duty alleged in the complaint because there is
no Prime Brokerage Agreement in the record that BAS entered into with Kim, Lee, or Shoreland.
This argument is without merit. The PB Agreement provides that BAS will not be supervising
any third parties—not only executing brokers— trading or managing an account on a customer’s
behalf. The question of whether the third party is an executing broker or some other third-party
advisor is accordingly irrelevant to the question of whether BAS had the alleged fiduciary duty to
supervise.

                                               19
customer. It further provides that “[t]he BofA Entities shall not be held liable for

any acts or omissions of an Executing Broker, subcustodian or other third party.

All transactions effected with an Executing Broker or other third party for

Customer shall be for the account of Customer and the BofA Entities shall have no

responsibility to Customer or such third party with respect thereto,” (id. ¶ 10(b)),

and BAS would “rely upon any authorized instructions . . . which [BAS]

reasonably belive[s] to be genuine and transmitted by authorized persons.” (Id. ¶

10(f).)

       There is nothing in the parties’ agreement to suggest that BAS owed the

fiduciary duty alleged in the complaint.5 Instead, as explained above, the

agreement provides the opposite. It states that BAS would not be acting as a

fiduciary and would not supervise, for the customer, third parties making decisions

for the customer’s account.

       No allegation in the complaint is sufficient to establish the alleged fiduciary

duty in spite of the parties’ agreement. SFM has not alleged that BAS in fact took


       5
         The IA Agreement language stating “Client appoints BAS as its agent for the purposes
of buying and selling securities in its Cash Account” does not change this conclusion.
(Appellee’s Br., Ex. B, ¶ 3.) First, it is not clear that this provision is even applicable because
SFM’s allegations relate to trades and transfers made in a Prime Broker Margin Account rather
than a Cash Account. But critically, SFM does not claim that BAS failed to buy or sell securities
consistent with its instructions. It claims that BAS should have prevented others purportedly
trading on its behalf from making certain decisions.

                                                20
on a supervisory role in handling its account. It has not alleged that BAS agreed

to do anything more than what the agreement provided. Indeed, the opposite is

true. The complaint states that BAS never spoke or had any interaction with SFM

and Melgen. Nor does mere knowledge about Kim, Lee, and Shoreland’s actions

create a fiduciary duty where none otherwise existed. See McDaniel v. Bear

Stearns & Co., Inc., 196 F. Supp. 2d 343, 352–53 (S.D.N.Y. 2002) (explaining that

mere knowledge of fraud by an introducing broker does not create fiduciary

obligations for a clearing broker).

      Finally, the allegation that BAS was an “executing broker” is insufficient to

create the fiduciary duty alleged. This term, as SFM uses it in the complaint, is

meaningless. It does not tell us anything about BAS. It does not tell us that BAS

had any additional responsibilities or performed any role not contemplated by the

parties’ agreement in connection with Kim, Lee, and Shoreland’s activities.

Critically, it does not tell us that BAS had a fiduciary obligation to supervise, for

SFM, third parties managing the SFM account. The parties’ disagreement over

whether a “prime broker” or an “executing broker” is like an “introducing broker”

or a “clearing broker” is a red herring. No fiduciary duty existed because SFM

and BAS agreed that there would be none.




                                          21
