          United States Court of Appeals
                     For the First Circuit

No. 18-2064

        NORMA EZELL, LEONARD WHITLEY, and ERICA BIDDINGS,
     on behalf of themselves and others similarly situated,

                     Plaintiffs, Appellants,

                               v.

LEXINGTON INSURANCE COMPANY; AMERICAN INTERNATIONAL GROUP, INC.;
    AIG ASSURANCE COMPANY; AIG INSURANCE COMPANY; AIG PROPERTY
   CASUALTY COMPANY; AIG SPECIALTY INSURANCE COMPANY; AMERICAN
  GENERAL LIFE INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE
 COMPANY OF PITTSBURG, PA.; AGC LIFE INSURANCE COMPANY; AMERICAN
GENERAL ANNUITY SERVICE CORPORATION; AIG CLAIMS, INC., f/k/a AIG
                      Domestic Claims, Inc.,

                     Defendants, Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                      Lynch, Circuit Judge,
                   Souter, Associate Justice,
                   and Kayatta, Circuit Judge.


     Craig R. Spiegel, with whom Steve W. Berman was on briefs,
for appellants.
     Adam H. Offenhartz, with whom James L. Hallowell, Nancy E.
Hart, Peter M. Wade, William T. Hogan III, and Nolan J. Mitchell
were on brief, for appellees.


     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
June 11, 2019




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           SOUTER,   Associate Justice.          Appellants Norma Ezell,

Leonard   Whitley,   and    Erica    Biddings    entered    into     structured

settlement agreements with Lexington Insurance Company.                 By the

terms of their settlements, appellants agreed not to pursue their

wrongful death and personal injury claims against parties insured

by Lexington.   In exchange, Lexington agreed that appellants would

receive specific periodic payments from annuities that Lexington

would   purchase.     Years    after    these    agreements    took    effect,

appellants accused Lexington and other affiliated insurers of

misrepresenting     the   amount    appellants   would     receive    from   the

settlements.    Appellants brought this putative class action in

federal court, alleging that Lexington and other insurers made

fraudulent misrepresentations to appellants, actionable at common

law, and engaged in a scheme to defraud appellants in violation of

the Racketeer Influenced and Corrupt Organizations Act, or RICO,

18 U.S.C. §§ 1961 et seq.          Appellants now challenge the District

Court's dismissal of their claims as raised for a second time under

an amended complaint.      We affirm.

           We begin with the language of the relevant settlement

documents that are part of the record on appeal.              One settlement

agreement applied to Ezell and Whitley; the other, to Biddings.

Under each, Lexington would purchase annuities from various life

insurance companies, and the proceeds from the annuities would be

remitted to appellants in periodic installments.             As to Ezell and


                                     - 3 -
Whitley, a preliminary memorandum provided that $200,000 would be

"annuitized" by Lexington for the purpose of financing periodic

payments, Ezell Settlement Memorandum ¶ 2, while a formal agreement

indicated the exact amount Ezell and Whitley would receive each

month, Ezell Settlement Agreement ¶ 2.2.             As to Biddings, a formal

agreement indicated that the "total present value" of the periodic

payments would be $1,642,000, and it also specified the exact

amount   she    would      receive   each   month.      Biddings     Settlement

Agreement ¶ 2.2.

             Appellants respectively allege that they did not receive

the promised amounts ($200,000 to be "annuitized" for Ezell and

Whitley, and $1,642,000 in "total present value" for Biddings)

because the life insurers that sold the annuities to Lexington

diverted four percent of those amounts to pay commissions to the

brokers who arranged the transactions with Lexington.                Since these

commissions were not disclosed in the settlement agreements or

otherwise,     appellants     contend   that   the     insurers   fraudulently

misrepresented       the   amount    appellants   would    receive     from   the

settlements.       This allegation is the basis for appellants' common-

law fraud and RICO claims.

             The    problem   for    appellants   is    that   the   settlement

documents, fairly read, did not promise that Ezell and Whitley

would receive $200,000, or that Biddings would receive $1,642,000.

Rather, they promised only that $200,000 would be "annuitized" for


                                      - 4 -
Ezell and Whitley, and that the "total present value" of the

periodic payments to Biddings would be $1,642,000.                    The amount

"annuitized" to produce a periodic payment stream plausibly refers

to the amount of money spent to purchase that payment stream, not

the amount a beneficiary receives from it.               See American Heritage

Dictionary of Business Terms 19 (2009) (defining "annuitize" as

"[t]o       convert   a   sum   of   money   into   a   series   of   payments").

Similarly, the "total present value" of a payment stream plausibly

refers to its cost, not to the amount a beneficiary receives.                See

Black's Law Dictionary 43 (10th ed. 2014) (defining "actuarial

present value" as the "amount of money necessary to purchase an

annuity that would generate a particular monthly payment, or

whatever periodic payment the plan provides . . .").

               Here, there is no dispute that Lexington paid $200,000

to purchase the annuities for Ezell and Whitley, and $1,642,000

for the annuities for Biddings.1             Although the life insurers that

sold the annuities to Lexington then allegedly used four percent

of these sums to pay commissions to brokers, appellants conceded

in their complaint that it is "[i]ndustrywide" practice for brokers


        1
       This is not, therefore, a case in which Lexington as the
settling insurer incurred an obligation to disclose a fact
necessary to correct what would be a falsity in some representation
in the absence of further disclosure. Cf. Macomber v. Travelers
Prop. & Cas. Corp., 804 A.2d 180, 186-187 (Conn. 2002) (reversing
the dismissal of a complaint that the settling insurer
misrepresented the purchase price of an annuity by failing to
disclose a rebate from the broker).


                                        - 5 -
to be paid "a standard sales commission of four percent (4%) of

the   annuity's   cost,"   Amended   Complaint   ¶   31,   and   that   the

commission would be paid by the annuity issuer, id. ¶¶ 35, 99(b),

100(b), 120(b), 121(b).2 Assuming that these allegations are true,

as we must at the motion-to-dismiss stage, Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007), the four-percent commission

payment would have been paid by the life insurance companies that

sold the annuities, and would have been accounted for as a standard

element of the cost of doing business by the life insurance

companies and reflected in the market prices that Lexington paid.

The commission, in other words, was included in the price of a

given annuity in the marketplace, and the appellants have provided

no basis to infer that liability insurers in Lexington's position

were under any obligation to inform a settlement party of the items

of overhead that it was the annuity industry's continuing practice

to account for in pricing their products.            Because the words

"annuitized" and "total present value" simply committed Lexington

to pay the amounts stated as necessary to produce the periodic



      2Despite this allegation, at several points the complaint
contains the arguably contradictory claim that Lexington's parent
company retained the four percent, see Amended Complaint ¶¶ 50,
57, 65, but without specifying that it did so in the transactions
with Ezell, Whitley, or Biddings. To the extent this unspecified
claim contradicts the other allegations in the record, it fails
under the pleading standards of Federal Rule of Civil Procedure
9(b), which requires the plaintiff to "state with particularity
the circumstances constituting fraud."


                                 - 6 -
payments   specified        in   the   agreements,    the   annuity      companies'

payment of brokers' commissions from out of the money Lexington

paid for the annuities does not belie the facts that Lexington

paid the amounts it quoted and that appellants received exactly

those   specific       annuity    payments    the    agreements    had    promised,

payments that the appellants have not alleged that they failed to

receive.

             Moreover, even if there were ambiguities in the terms

"annuitized" or "total present value," the specific schedules of

periodic payments set out in the respective settlement agreements

would cure them, for those agreements listed the precise amount

appellants could expect to receive each month throughout a stated

period.      In so doing, the agreements concretely defined what

$200,000 "annuitized" and $1,642,000 in "total present value"

meant in terms of annuity benefits to be paid to appellants.

Because there is no dispute that appellants did receive the

periodic     payment     amounts       they   were    promised     in    agreements

containing        no   uncorrected      misrepresentations,        there     is     no

allegation in the pleadings that appellants suffered the kind of

harm necessary to make out a case of the statutory or common-law

violations claimed.

             In    short,    appellants       have   failed   to    "state        with

particularity the circumstances constituting fraud."                    Fed. R. Civ.

P. 9(b).     Under Rule 9(b), appellants must state "the who, what,


                                        - 7 -
where, and when of the allegedly [misleading] representation" with

particularity.    Kaufman v. CVS Caremark Corp., 836 F.3d 88, 91

(1st Cir. 2016) (quoting Alt. Sys. Concepts, Inc. v. Synopsys,

Inc., 374 F.3d 23, 29 (1st Cir. 2004)).     Here, however, the basic

problem with appellants' complaint is not that they failed to state

some facts "with particularity."   Fed. R. Civ. P. 9(b).     Rather,

it is that the facts they have pleaded "with particularity" on the

matters   discussed   here   demonstrate    the   absence   of   any

"circumstances constituting fraud."   Id.    Accordingly, we affirm

the District Court's decision dismissing the amended complaint

with prejudice.



So ordered.




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