                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0909n.06

                                            No. 12-4381

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


PHAROS CAPITAL PARTNERS, L.P.,                       )
                                                     )                    FILED
       Plaintiff-Appellant,                          )                   Oct 23, 2013
                                                     )             DEBORAH S. HUNT, Clerk
v.                                                   )
                                                     )
DELOITTE & TOUCHE, Deloitte & Touche LLP             )
c/o Lawrence A. Hilsheimer, Statutory Agent;         )
CREDIT SUISSE FIRST BOSTON                           ) ON APPEAL FROM THE UNITED
CORPORATION, c/o Prentice Hall Corp System,          ) STATES DISTRICT COURT FOR THE
Statutory Agent; PURCELL & SCOTT CO LPA,             ) SOUTHERN DISTRICT OF OHIO
c/o Peggy A. Scott, Statutory Agent; HAROLD W.       )
POTE,                                                )
                                                     )
       Defendants-Appellees.                         )




       Before: COOK, GRIFFIN, and KETHLEDGE, Circuit Judges


       PER CURIAM. In this chapter of the multi-district National Century Financial Enterprises,

Inc., Investment Litigation, MDL No. 2:03-md-1565, which arises from National Century’s

fraudulent business practices and stock offerings, investor Pharos Capital Partners, L.P., sued one

of National Century’s stock placement agents, alleging primary and secondary liability under

Ohio securities law, fraud, and negligent misrepresentation for its role in facilitating Pharos’s

now-worthless $12-million equity investment in National Century stock. The district court granted

summary judgment to the placement agent, Credit Suisse Securities (USA) LLC, finding in pertinent

part that: (i) Pharos unjustifiably relied on Credit Suisse’s representations in light of the parties’
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Pharos Capital Partners, L.P. v. Deloitte & Touche


“big boy agreement” in which Pharos eschews reliance on Credit Suisse in favor of its own due

diligence, and (ii) Pharos failed to present evidence of a predicate violation of Ohio securities law

to support its secondary liability claim against Credit Suisse. After carefully reviewing the record,

the applicable law, the parties’ briefs, and having had the benefit of oral argument, we find that the

district court’s opinion diligently and correctly sets out the undisputed facts and the governing law.


       During oral argument, Pharos defended its failure to designate evidence supporting the

secondary liability claim by denying that Credit Suisse’s motion for summary judgment challenged

its reliance on National Century’s Private Placement Memorandum (PPM). The record reveals

otherwise. (Appellee App. vol. 1 at 11175, CS Summ. J. Br. at 90 (“As a threshold matter, Pharos

has not established a primary violation of Section 1707.41, as required to recover under Section

1707.43. For example, Pharos has not identified a single false statement in the PPM that it

reasonably relied on to support its claim.”).) Pharos makes much of the fact that Credit Suisse’s

motion brief states that “Pharos admits it reviewed and relied on the PPM in connection with its

investment decision.” (Id. at 11109–10, Br. at 24–25.) But, as the district court noted, this generic

statement of Pharos’s legal position concedes nothing in terms of justifiable reliance.


       The district court thoroughly reviewed the record for evidence that Pharos reasonably

relied on material misstatements appearing in the PPM, finding nothing more than a handful of

vague assertions of reliance on the PPM. Indeed, the court granted Pharos more review than its

proffer required. See, e.g., Wimbush v. Wyeth, 619 F.3d 632, 638 n.4 (6th Cir. 2010) (“[I]t was [the



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non-movant’s] job to point to the evidence with specificity and particularity in the relevant brief

rather than just dropping a pile of paper on the district judge’s desk and expecting him to sort it

out.”); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008) (explaining that the district court has

no “duty to search the entire record to establish that it is bereft of a genuine issue of material fact”

(quotation omitted)). We discern no error with its judgment that Pharos failed to present evidence

demonstrating justifiable reliance. See Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 405 (6th Cir.

1992) (“[I]f the non-moving party fails to discharge [the summary judgment] burden—for example,

by remaining silent—its opportunity is waived and its case wagered.”).


       Pharos attempts to remedy this evidentiary shortcoming on appeal, pointing to deposition

testimony from its managing partners stating that it relied on the PPM’s performance forecasts and

its failure to disclose National Century’s asset-shifting practices. But even if we were to accept

these forfeited statements of reliance as properly before us, they suffer from the same lack of

particularity as those discovered by the district court.


       Finally, the district court correctly held that Pharos could not justifiably rely on any

statement by Credit Suisse because Pharos was a sophisticated investor, had substantial adverse

information about National Century, and, most critically, signed an agreement disclaiming reliance

on any statement by Credit Suisse. On appeal, Pharos argues that Credit Suisse had knowledge of

material information about National Century’s fraud that outside investors—like Pharos—could not

discover. Even assuming that this scenario could make Pharos’s reliance justifiable, Pharos has not



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demonstrated that any material information was truly unavailable to a sophisticated investor like

Pharos.


          Because this court’s issuance of a full opinion would be duplicative and serve no

jurisprudential purpose, we AFFIRM for the reasons stated in the district court’s well-reasoned

opinion and order of October 26, 2012.




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