     09-1815-cv(L), 09-2324-cv(CON)
     In re One Communications Corp.


                                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. W hen 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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 17th day of June, two thousand ten.
 4
 5   PRESENT:
 6
 7                    AMALYA L. KEARSE,
 8                    ROBERT D. SACK,
 9                    DEBRA ANN LIVINGSTON
10                                    Circuit Judges.
11
12
13
14   One Communications Corp, as successor in interest to CTC
15   Communications Group, Inc., and CTC Communications Acquisition,
16               Plaintiff-Counter-Defendant-Appellant,
17
18           -v.-                                               Nos. 09-1815-cv, 09-2324-cv
19
20   JP Morgan SBIC LLC, Sixty Wall Street SBIC Fund, L.P.,
21   The Megunticook Fund II, L.P., The Megunticook Side Fund II,
22   L.P., Kevin O’Hare, Jeffrey Koester, Mellon Investor Services
23   LLC, as nominal defendant,
24                 Defendants-Appellees,
25
26   Verizon New England Inc., as defendants on a Declaratory
27   Judgment Claim, Northern New England Telephone Operations
28   LLC, Telephone Operating Company of Vermont LLC,
29                Defendants-Counter-Claimants-Appellees,
30
31   Stockholder Representative Committee, on behalf of Certain
32   Former Stockholders of Lightship Holding, Inc.,
33                 Plaintiff-Counter-Defendant-Appellee.
34
 1                                 NICHOLAS W. LOBENTHAL (John M. Teitler, Alan S. Rabinowitz,
 2                                 Paul Ettori, on the brief; Mark S. Resnick, The Resnick Law Group
 3                                 P.C., Boston, MA, of counsel), Teitler & Teitler, LLP, New York,
 4                                 NY, for Plaintiff-Counter-Defendant-Appellant.
 5
 6                                 JAYNE S. ROBINSON , (K. Ann McDonald, Brett G. Canna, on the
 7                                 brief) Robinson & McDonald LLP, New York, NY, for Defendants-
 8                                 Appellees JP Morgan SBIC LLC and Sixty Wall Street SBIC Fund,
 9                                 L.P., and for Plaintiff-Counter-Defendant-Appellee.
10
11                                 PAUL E. SUMMIT (Ira K. Gross, Phillip Rakhunov, on the brief),
12                                 Sullivan & Worcester LLP, Boston, MA, for Defendants-Appellees
13                                 The Megunticook Fund II, L.P. and The Megunticook Side Fund II,
14                                 L.P.
15
16                                 DAVID B. MACK (Sean T. Carnathan; Michael H. Ference, Jonathan
17                                 Kurta, Sichenzia Ross Friedman Ference LLP, New York, NY, on the
18                                 brief), O’Connor, Carnathan and Mack LLC, Burlington, MA, for
19                                 Defendants-Appellees Kevin O’Hare and Jeffrey Koester.
20
21
22          Appeals from a March 31, 2009 judgment and a May 1, 2009 order of the United States

23   District Court for the Southern District of New York. UPON DUE CONSIDERATION, it is hereby

24   ORDERED, ADJUDGED, AND DECREED that the judgment and order of the district court are

25   AFFIRMED.

26          Plaintiff-Counter-Defendant-Appellant One Communications Corp. (“OCC”) appeals from

27   a March 31, 2009, judgment and a May 1, 2009 order of the United States District Court for the

28   Southern District of New York (Swain, J.), dismissing its federal law claims and counterclaims,

29   respectively with prejudice and declining to exercise jurisdiction over the remaining state law

30   claims. OCC argues that Lightship Telecom LLC, a competitive local exchange carrier (together

31   with Lightship Holding, Inc., a corporation holding all of Lightship Telecom’s stock, “Lightship”),

32   was operating in violation of its contracts and federal and state telecommunications laws and that

33   the defendants-appellees, who are major shareholders, directors, and high-level employees of

34   Lightship, made misrepresentations during the sale of the company to OCC’s predecessor in interest,


                                                     2
 1   CTC Communications Group (“CTC”), that violated Sections 10(b), 15 U.S.C. § 78j(b), and 20(a),

 2   15 U.S.C. § 78t(a), of the Securities Exchange Act of 1934, as well as state law. We assume the

 3   parties’ familiarity with the underlying facts, procedural history, and specification of the issues on

 4   appeal.

 5             We review a district court's dismissal of a complaint pursuant to Rule 12(b)(6) de novo. The

 6   court accepts all well-pleaded allegations in the complaint as true, drawing all reasonable inferences

 7   in the plaintiff's favor. In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must

 8   allege a plausible set of facts sufficient “to raise a right to relief above the speculative level.” Bell

 9   Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

10             In order to state a claim under § 10(b) and Rule 10b-5, which implements it, “[a] plaintiff

11   must allege that in connection with the purchase or sale of securities, the defendant, acting with

12   scienter, made a false material representation or omitted to disclose material information and that

13   plaintiff’s reliance on defendant’s conduct caused plaintiff injury.” Operating Local 649 Annuity

14   Trust Fund v. Smith Barney Fund Mgm’t LLC, 595 F.3d 86, 92 (2d Cir. 2010) (quoting Caiola v.

15   Citibank, N.A., N.Y., 295 F.3d 312, 321 (2d Cir. 2002) (internal quotation marks and brackets

16   omitted)). A complaint alleging securities fraud is required to satisfy the heightened pleading

17   standard of the Private Litigation Securities Reform Act, Pub. L. No. 104-67, 109 Stat. 737, and

18   Federal Rule of Civil Procedure 9(b); the circumstances constituting the fraud must be stated with

19   particularity. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007). “A

20   securities fraud complaint based on misstatements must (1) specify the statements that the plaintiff

21   contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were

22   made, and (4) explain why the statements were fraudulent. Allegations that are conclusory or

23   unsupported by factual assertions are insufficient.” Id. (internal citation omitted).



                                                        3
 1          In addition, the complaint must provide “particular allegations giving rise to a strong

 2   inference of scienter” — “that the defendant acted with the required state of mind.” ECA & Local

 3   134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009)

 4   (internal quotation marks omitted). In order to satisfy the pleading requirements of § 10(b) and Rule

 5   10b-5 with respect to scienter, the plaintiff may “alleg[e] facts (1) showing that the defendants had

 6   both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence

 7   of conscious misbehavior or recklessness.” ATSI Commc’ns, 493 F.3d at 99. The court must take

 8   into account plausible opposing inferences when determining whether pleaded facts give rise to a

 9   strong inference of scienter, and the inference of scienter must be at least as compelling as any

10   opposing inference that could be drawn from the alleged facts in order to satisfy the standard.

11   Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007).

12          OCC argues with regard to the allegations in its complaint (1) that certain pre-agreement

13   representations made by Lightship and its officers and directors may be the foundation of a § 10(b)

14   claim and were false, (2) that, in any event, the representations in the merger agreement between

15   Lightship and CTC were false and that it so adequately pled in the complaint, (3) that there were

16   post-agreement representations that were not considered by the district court, and (4) that the sellers

17   acted with scienter throughout.

18          With respect to the pre-agreement representations allegedly made by Lightship, we conclude

19   that the merger agreement foreclosed any reliance by CTC on those representations and that

20   therefore no § 10(b) claim may be brought based on them. The merger agreement itself contained

21   both a merger clause, section 10(c), and a separate provision, section 6(d), specifically disclaiming

22   the ability of CTC to rely on representations or warranties that were “inconsistent with or in addition

23   to the representations and warranties” set forth in the agreement. In assessing whether a plaintiff



                                                       4
 1   reasonably relied on a representation, a court must consider the entire context of the transaction,

 2   including the sophistication of the parties, the content of written agreements, and the complexity and

 3   magnitude of the transaction. Emergent Capital Investment Mgm’t, LLC v. Stonepath Group, Inc.,

 4   343 F.3d 189, 195 (2d Cir. 2003). “Where the plaintiff is a sophisticated investor and an integrated

 5   agreement between the parties does not include the misrepresentation at issue, the plaintiff cannot

 6   establish reasonable reliance on that misrepresentation.” ATSI Commc’ns, 493 F.3d at 105. OCC

 7   does not allege that CTC was not a sophisticated investor, and indeed the record reflects that it was

 8   such. Section 10(c) of the agreement clearly provides that the agreement is integrated and, in

 9   combination with section 6(d), suffices to show that reliance on pre-agreement representations was

10   unwarranted as a matter of law.

11          OCC identifies a number of representations and warranties within the merger agreement

12   itself that it claims are misrepresentations actionable under § 10(b). One of the representations at

13   issue, section 4(h) of the agreement, warranted that Lightship’s financial statements accurately

14   reflected the company’s financial condition and were prepared in accordance with Generally

15   Accepted Accounting Principles (GAAP).           In its complaint, OCC states: “The Lightship

16   representations, warranties and covenants set forth in the Merger Agreement, including those [in

17   section 4(h)], were false at the time the Merger Agreement was executed. They remained false

18   throughout the remaining diligence period, and they were false at the time the transaction closed.”

19          We agree with the district court that this insufficiently pleads the fraudulence of the

20   representation in section 4(h). The complaint sets forth no information as to how or why the books

21   of account had not been maintained in accordance with sound business practice, what provisions of

22   GAAP were being violated by the financial statements, how the alleged billing discrepancy was a

23   liability of the type required by GAAP to be recorded on the balance sheet, why any misbilling was



                                                       5
 1   not in the ordinary course of business, and how Lightship’s internal controls and procedures were

 2   not being followed. Although OCC argues that fraudulently inflating revenue is inherently not

 3   sound business practice or GAAP-compliant, Lightship was actually collecting the revenue for

 4   which it was allegedly over-billing and was recording it appropriately. OCC has thus failed to allege

 5   that the accounting was fraudulent or to provide any information as to why the allegedly inflated

 6   figure for earnings before interest, taxes, depreciation and amortization (“EBITDA”) was an instance

 7   of accounting fraud. The complaint fails to satisfy the standards this Court has set for particularity

 8   in the context of GAAP-related misstatements that are alleged to be fraudulent. See, e.g., ECA, 553

 9   F.3d at 196, 199-200 (noting that allegations of a particular GAAP violation may state a securities

10   fraud claim in conjunction with evidence of corresponding fraudulent intent); In re Carter-Wallace,

11   Inc. Sec. Litig., 150 F.3d 153, 157 (2d Cir. 1998) (same).

12           The complaint also points to section 4(i) of the merger agreement as constituting a violated

13   warranty: “Section 4(i) of the Merger Agreement addressed legal compliance. In this section, LHI

14   represented that except as set forth on a Schedule 4(i), the company had complied in all material

15   respects and was currently in compliance in all material respects with all applicable laws.” Like the

16   allegations with respect to section 4(h), this is insufficiently specific. To say that this warranty is

17   false without providing an indication of what law was being broken by Lightship’s billing practice

18   is conclusory and lacks particularity. Although OCC does allege in the complaint that the provision

19   of VNXX service was prohibited by law in the relevant states, it fails to identify which named

20   defendants were even aware of VNXX service violations, much less that any defendant had the

21   required scienter. Similarly, in paragraph 94, the complaint alleges that sections 4(e)(i), 4(e)(ii), and

22   4(e)(iii) make various representations about compliance with permits and licensing requirements.

23   The complaint does not allege with which requirements Lightship was not in compliance, merely



                                                        6
 1   that the representations are false. This fails to satisfy the strict pleading requirements of a § 10(b)

 2   claim.

 3            Section 4(e)(v), which OCC also identifies as a misrepresentation, according to the complaint

 4   “provided that as of the closing date, none of the Lightship Companies had any liability to any

 5   affiliate of Verizon Communications, Inc. for CABS-related billing of intercarrier compensation.”

 6   The actual provision states that “[a]s of the Closing Date, none of the Lightship Companies has any

 7   Liability: (A) to any Affiliate of Verizon Communications, Inc. related to billing for CABS with

 8   respect to any intra-LATA toll traffic terminating on Lightship’s UNE-P lines, or (B) to any CLEC

 9   related to switched access charges in its non-UNE-P access bills to other CLECs for UNE-P feature

10   group D access charges associated with its local interconnection arrangements.” As all parties agree,

11   the misrepresentations alleged here are not related to intra-LATA toll traffic or UNE-P lines, so the

12   provision is irrelevant.

13            Section 5(c), which contains pre-closing covenants, required Lightship to refrain from taking

14   various actions that would delay the closing or adversely impact the transaction. It also required

15   Lightship to disclose any knowledge of a breached representation acquired between execution and

16   closing. OCC asserts that this section constitutes a misrepresentation by Lightship but fails to

17   specify with particularity which portions of section 5(c) were misrepresentations and why.

18            Finally, the complaint cites section 4(k)(iii) as a misrepresentation. 4(k)(iii) relates to

19   Lightship’s compliance with contracts, and hence the allegations about improper billing under

20   Lightship’s Maine Inter-Connection Agreement with Verizon (“ICA”) — the only interconnection

21   agreement OCC alleges was violated — could be considered to be pled with sufficient particularity

22   to explain why 4(k)(iii) was a misrepresentation. We nonetheless agree with the district court that

23   4(k)(iii) does not apply to the Verizon agreement. The provision reads in part:



                                                        7
 1                   (iii) All of the Contracts set forth on Schedule 4(k)(i) and (ii) are
 2                   valid, in full force and effect and binding upon the applicable
 3                   Lightship Company party thereto . . . and the applicable Lightship
 4                   Company is not in material default under any such Contract, nor, to
 5                   Holding’s Knowledge, does any condition exist that . . . would
 6                   constitute a material default under any such Contract.
 7
 8   It is uncontested that the ICA does not appear on Schedule 4(k)(i). Section 4(k)(ii) specifies that

 9   Schedule 4(k)(ii) consists of two CDs, on which the ICA does not appear. Granted, the printed

10   language of Schedule 4(k)(ii) both directs the reader to the CDs and includes a paragraph stating that

11   “all of Lightship’s interconnection agreements with Verizon have expired,” noting that those ICAs

12   were being operated on a month-to-month basis. Contrary to OCC’s argument, however, this

13   paragraph is most logically interpreted as explaining why the ICAs are being excluded from

14   Schedule 4(k)(ii), rather than including them: if Schedule 4(k)(ii) were read to include the ICAs,

15   then the language of Section 4(k)(ii) is incomplete and incorrect. Moreover, Section 4(k)(iii)

16   specifies that the contracts in schedules (i) and (ii) are valid, in full force and effect, and binding,

17   which would contradict the description of the Verizon ICAs as expired. In order to give full effect

18   to all of the language of the contract, therefore, Schedule 4(k)(ii) is most appropriately read to

19   exclude the Verizon ICAs. We therefore conclude that the complaint does not plausibly allege that

20   the representation in Section 4(k)(iii) was not violated by any alleged noncompliance with the ICAs.

21


22           As for the further disclosure of financial data by Lightship to CTC between the signing of

23   the merger agreement and the closing of the transaction, OCC argues that the merger clauses do not

24   operate to bar reliance on post-signing disclosure. See, e.g., Dresner v. Utility.com, Inc., 371 F.

25   Supp. 2d 476, 496 & n.10 (S.D.N.Y. 2005). We need not decide here whether post-agreement

26   representations are distinguishable from pre-agreement representations in this case because we find

27   that OCC has failed adequately to allege scienter with respect to this portion of the claim. OCC has


                                                        8
 1   offered nothing more than speculation and vague allegations as to the knowledge and involvement

 2   of defendants JP Morgan SBIC LLC, Sixty Wall Street SBIC Fund, L.P., The Megunticook Fund

 3   II, L.P., and The Megunticook Side Fund II, L.P. With regard to the asserted misrepresentations,

 4   merely pleading the involvement of outside directors Matlack and Oppenheimer, appointed by these

 5   entities, is insufficient. With respect to the corporate officers O’Hare and Koester, we conclude that

 6   OCC’s allegations fail the test laid out in Tellabs: with the allegations assessed holistically, the

 7   inference that the corporate officers were deliberately inflating their revenue via improper billing

 8   practices is not “cogent and at least as compelling” as the inference that they reasonably believed

 9   that they were billing properly and appropriately reporting their EBITDA, particularly given that

10   Verizon had never objected to the bills. Tellabs, 127 S. Ct. at 2505.

11           Section 20(a) of the 1934 Act makes “controlling persons” jointly and severally liable with

12   controlled persons to any person to whom the controlled person is liable for securities fraud. 15

13   U.S.C. § 78t(a); Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998). In order to establish a

14   prima facie case of liability under § 20(a), a plaintiff must show, among other things, “a primary

15   violation by a controlled person.” Id. Having concluded above that plaintiffs have failed to

16   demonstrate any primary violations, we affirm the dismissal of the § 20(a) claims.

17           Finally, this Court “review[s] a district court’s decision to decline supplemental jurisdiction

18   over pendent state law claims for abuse of discretion.” WWBITV, Inc. v. Vill. of Rouses Point, 589

19   F.3d 46, 49 (2d Cir. 2009). If all of a plaintiff’s federal claims are dismissed, a district court is well

20   within its discretion to decline to assert supplemental jurisdiction over any state law claims, as it did

21   here. Id. at 52; see also Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998). We note that these

22   claims may still be brought in state court and that plaintiffs may there find a remedy for any viable

23   fraud, misrepresentation, or breach of representations and warranties claims.



                                                         9
 1            All arguments not otherwise discussed in this summary order are found to be moot or without

 2   merit.

 3            For the foregoing reasons, the March 31, 2009 judgment and May 1, 2009 order of the

 4   district court are hereby AFFIRMED.

 5


 6                                                                 FOR THE COURT:

 7                                                                 Catherine O’Hagan Wolfe, Clerk

 8

 9

10




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