     Case: 09-20654 Document: 00511292025 Page: 1 Date Filed: 11/12/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           November 12, 2010

                                         No. 09-20654                         Lyle W. Cayce
                                                                                   Clerk

MICHAEL L. BROWN,

                                                     Plaintiff-Appellant
v.

THOMAS E. BILEK; THE BILEK LAW FIRM, L.L.P.;
and HOEFFNER & BILEK, L.L.P.,

                                                     Defendants-Appellees




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:09-CV-2193


Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR, District
Judge.*

REED O’CONNOR, District Judge:**
       Plaintiff-Appellant Michael L. Brown (“Brown”) appeals the district court’s
dismissal of his complaint with prejudice under Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim, and alternatively, under
Rule 9(b) of the Federal Rules of Civil Procedure for failure to plead his fraud-


       *
            District Judge, Northern District of Texas, sitting by designation.
       **
          Pursuant to 5TH CIR . R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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based claims with particularity. We conclude that the district court did not err
in dismissing Brown’s complaint with prejudice, and affirm.
I.    Factual Background and Procedural History
      A.     In re Enron Class Action Litigation
      The facts that give rise to the instant lawsuit grow out of prior litigation,
a securities fraud class action in which Brown was a member of the class.
Following the collapse of Enron Corporation in 2001, shareholders across the
nation filed suit. The various shareholder lawsuits were consolidated in the
United States District Court for the Southern District of Texas as Civil Action
No. H-01-3624, captioned as In re Enron Corp. Securities Litigation, 206 F.R.D.
427 (S.D. Tex. 2002) (“In re Enron”), and heard by Judge Melinda Harmon. The
In re Enron litigation presented corporate securities claims and invoked the
Private Securities Litigation Reform Act of 1995 (“PSLRA”), Pub. L. No. 104-67,
109 Stat 737 (codified as amended in scattered sections of 15 U.S.C.). Pursuant
to the PSLRA, specifically 15 U.S.C. § 78u-4, Judge Harmon appointed the
Regents of the University of California (the “Regents”) as lead plaintiff. In their
role as lead plaintiff, the Regents selected, and the district court approved, the
California law firm of Milberg Weiss Bershad Hynes & Lerach LLP 1 (“Lead
Counsel”) to serve as lead counsel for the Enron class of plaintiffs.           Lead
Counsel, in turn, chose attorney Thomas E. Bilek (“Bilek”) and his law firm as
one of two Houston-based firms to serve as local counsel.
      Approximately seven years into the In re Enron litigation, the parties
reached various settlements totaling approximately $7.2 billion. See In re Enron
Corp. Sec., Derivative & ERISA Litig. (Newby v. Enron Corp.), 586 F. Supp. 2d
732, 740 (S.D. Tex. 2008) (district court’s order acknowledging a “total
[settlement] recovery of approximately $7.2 billion, plus interest, achieved in


      1
        The Milberg Weiss lawyers handling the case later changed firm affiliation and
subsequently became part of the law firm of Coughlin Stoia Rudman & Robbins L.L.P.

                                          2
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                                       No. 09-20654

settlements in this action”) (internal footnote omitted).                    Lead Counsel
subsequently moved for attorneys’ fees from the settlement recovery.
“Specifically Lead Counsel [sought] a fee of 9.52 percent of the total recovery, or
approximately $688 million, plus interest accrued, in accordance with a fee
agreement negotiated with Lead Plaintiff the Regents of the University of
California at the outset of [the] litigation.” Id. (internal footnote omitted). In
support of the Regents’ fee request, attorneys who had contributed work on
behalf of the class submitted documentation to the court of the work performed
and hours expended on the case. Bilek submitted a 107-page document setting
forth the hours and tasks allegedly expended and performed by Bilek and his
firm in the In re Enron litigation. The district court provided an opportunity for
the parties to object to the fee request, and Brown filed no objection.2 After
extensive briefing and a fairness hearing, the district court found that the ex
ante contingency fee agreement between the Regents and Lead Counsel “was
negotiated at arm’s length,” “served to attract . . . one of the top, most
experienced, and formidable securities law firms in the country,” and that, at the
time the fee was negotiated, “the 9.52 percentage [contingency fee] was lower
than that awarded in most securities class actions.” Id. at 767. The district
court approved Lead Counsel’s requested fee based on the contingency
agreement, finding that it was a “fair and reasonable fee.”3 Id. at 742, 828. The


       2
        At the time of the hearing, Brown was unaware of Bilek’s alleged misrepresentations,
and therefore could not have objected at that time.
       3
          The district court also analyzed the fee request under a loadstar analysis for use in
the event that enforcement of the ex ante percentage agreement was appealed and overturned
or modified in favor of a loadstar analysis. Id. at 778–804. An appeal of the fee award was
later filed and remained pending at the time the district court entered the order dismissing
Brown’s complaint in this subsequent case. However, that appeal has since been dismissed
by agreement. See Stipulated Dismissal of Appeal Pursuant to Federal Rule of Appellate
Procedure 42(b), Newby v. Enron Corp., No. 08-20648 (5th Cir. Sept. 10, 2009); Dismissal
Order, Newby v. Enron Corp., No. 08-20648 (5th Cir. Sept. 16, 2009). Therefore, the district
court’s decision to adopt the ex ante fee agreement is left undisturbed.

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district court awarded the requested attorneys’ fees to Lead Counsel. Id. at 828.
Lead Counsel then worked in conjunction with the Regents to determine which
other attorneys should receive a portion of the fees awarded, and in what
amounts. Lead Counsel allocated and distributed approximately $16 million of
the $688 million attorneys’ fee award to Bilek.4
       B.     Brown Files the Instant Lawsuit
       Nine months after the district court approved Lead Counsel’s fee request,
Brown filed the instant case. In his complaint, Brown asserted claims for fraud
and breach of fiduciary duty against Bilek, The Bilek Law Firm, L.L.P., and
Hoeffner & Bilek, L.L.P. Brown filed his complaint in Texas state court on
behalf of the putative class of
       [a]ll persons or entities who, as shareholders of Enron Corporation,
       participated in, did not opt out of, and received monies as a result
       of the settlement of the class action case styled: In re ENRON
       CORPORATION SECURITIES LITIGATION, Civil Action No. H-
       01-3624 (Consolidated), in the United States District Court,
       Southern District of Texas, Houston Division.

Brown’s complaint alleged that, “as part of the various attorneys’ efforts in the
[In re Enron] case to obtain fees,” Bilek provided false and exaggerated
information to the district court. Brown further alleged that, “[a]s a result of
Defendants’ misrepresentations to the Court, Defendants received more than
$16 million in attorneys’ fees from the Enron Case.                 Such fee reduced the
amount of recovery available to distribute to the class members.”5 Brown sought


       4
         In the district court, Brown alleged that Bilek received approximately $16 million in
fees. On appeal, Brown alleges that Bilek received approximately $18 million. We use the
figure presented to the district court, but our analysis would be the same using either amount.
       5
          After receiving Brown’s complaint, Bilek provided notice of the suit to the Regents.
The Regents subsequently filed a notice on the docket of the In re Enron litigation stating that
Bilek had submitted his time under oath, that they and Lead Counsel had reviewed the time
Bilek submitted, that they had observed Bilek’s work on the case over the years and that they
“did not have any reason to believe that there was any impropriety with respect to Mr. Bilek’s

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                                       No. 09-20654

disgorgement and unspecified actual and punitive damages.
       Pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) and § 1443,
Bilek removed the case from Texas state court to the Southern District of Texas.6
Bilek moved to dismiss Brown’s case, and the district court granted his motion.
The district court held that Brown could not represent his purported class
because it was already represented by the Regents, pursuant to their
appointment under the PSLRA as lead plaintiff in the In re Enron litigation.
Thus, the district court held, any claims asserted on behalf of the class should
have been brought by the Regents. Additionally, the district court held that,
even assuming Brown could act on behalf of the purported class, he could not
challenge the In re Enron fee award in a subsequent tort lawsuit. The district
court viewed Brown’s suit as an attempt to obtain relief from the court order in
In re Enron that the fee award to Lead Counsel was “fair and reasonable.” Thus,
the district court reasoned, the challenge should have been brought by a motion
under Rule 60(b) of the Federal Rules of Civil Procedure to set aside the
judgment in In re Enron, or by an action consistent with the PSLRA. Third, and
in the alternative, the district court found that Brown failed to plead his claims
with particularity, as mandated by Rule 9(b) of the Federal Rules of Civil
Procedure.
       The district court dismissed Brown’s complaint with prejudice, and this
appeal follows.




submitted time.” Lead Plaintiff’s Notice Regarding Case Against Thomas Bilek, In re Enron
Corp. Sec. Litig. (Newby v. Enron Corp.), Civ. Act. No. H-01-3624 (S.D. Tex. June 22, 2009).
Nevertheless, noting that they took Brown’s allegations seriously, the Regents stated that they
had requested substantiation of Brown’s claims from Brown’s attorney, who had not
responded. Id.
       6
         Following removal, Bilek’s case was originally assigned to Judge Kenneth M. Hoyt.
Judge Hoyt transferred the case to Judge Harmon since Judge Harmon has presided over the
In re Enron litigation.

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II.     Standard of Review
        “This court reviews the district court’s dismissal under Rule 12(b)(6) de
novo, accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009) (internal quotation marks omitted). “Factual allegations must be enough
to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007).
        Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, “[i]n alleging
fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions
of a person’s mind may be alleged generally.” Courts have also applied the
particularity requirement of Rule 9(b) to breach of fiduciary duty claims
predicated on fraud. See, e.g., City of Driscoll, Texas v. Saenz, No. C-06-543,
2007 WL 173232, at *5 (S.D. Tex. Jan. 17, 2007) (citing, inter alia, In re Elec.
Data Sys. Corp. ERISA Litig., 305 F. Supp. 2d 658, 672 (E.D. Tex. 2004) (“Only
a breach of fiduciary duty claim which includes a fraud claim implicates Rule
9(b).”)).
III.    Analysis
        A.    Dismissal for Failure to State a Claim
        Brown first challenges the district court’s holding that Brown’s claims
against Bilek and his law firms must be brought, if at all, through the Regents
in their capacity as lead plaintiff in the In re Enron litigation. We hold that
based upon the facts present here, Brown’s allegations must be presented
through the Regents in a manner consistent with the PSLRA, rather than
advanced by Brown in a separate tort lawsuit.
        The PSLRA provides that the district court “shall appoint as lead plaintiff
the member or members of the purported plaintiff class that the court
determines to be most capable of adequately representing the interests of class

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                                        No. 09-20654

members.”       15 U.S.C. § 78u-4(a)(3)(B)(I).7           It is undisputed that Brown’s
proposed class is encompassed by the In re Enron litigation class, which is
represented by the Regents as the appointed lead plaintiff. The PSLRA provides
that, once selected, the lead plaintiff “shall, subject to the approval of the court,
select and retain counsel to represent the class.” Id. § 78u-4(a)(3)(B)(v). “[T]he
PSLRA grants th[e] lead plaintiff primary responsibility for selecting and
supervising the attorneys who work on behalf of the class.” In re Cendant Corp.
Sec. Litig. (“Cendant II”), 404 F.3d 173, 181 (3rd Cir. 2005).8 “Any attorney who
wishes to be compensated out of the plaintiff class’s recovery in a class action
governed by the PSLRA must submit his fee requests to the PSLRA lead
plaintiff.” Id. at 199. Under the framework established by the PSLRA, “lead
plaintiffs are entitled to significant discretion in selecting and compensating lead
counsel” and “so to are they entitled to similar discretion in determining whether
other firms have benefited [sic] the class, and whether and to what extent to
compensate such firms.”9 Id. at 180–81.
       The facts that form the basis of Brown’s suit are inextricably woven into
the In re Enron litigation. Brown has alleged that Bilek committed fraud on the



       7
          The PSLRA also creates a “rebuttable presumption” that the lead plaintiff “has the
largest financial interest in the relief sought by the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I).
Brown has advanced no argument attempting to rebut this presumption, nor has he alleged
that the Regents would not adequately represent the interests of the class by rectifying Bilek’s
alleged fraud.
       8
         Cendant II followed the Third Circuit’s opinion in In re Cendant Corp. Sec. Litig
(“Cendant I”), 264 F.3d 201 (3rd Cir. 2001), in which the court “rejected the District Court’s
use of an auction mechanism to select and compensate lead counsel, and remanded for a
determination of attorneys’ fees in accordance with the agreement between lead plaintiffs and
their chosen lead counsel.” Cendant II, 404 F.3d at 180.
       9
        In reciting the PSLRA provisions governing the lead counsel’s responsibility to select
and monitor other counsel involved in a case, we are not called upon to discuss, nor do we
reach any conclusion regarding the court’s duties to oversee the reasonableness of the ultimate
fee award. This decision is limited to Bilek’s procedural duty to present his allegations first
to counsel for the Regents pursuant to the statute.

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                                      No. 09-20654

In re Enron court, plaintiff class, and lead plaintiff by making false
representations regarding his work on behalf of the class. Brown seeks to
disgorge the attorneys’ fees received by Bilek through the PSLRA-governed fee
award in In re Enron and to return such fees to the class members.10 If Brown’s
action were successful, it would necessarily disturb the ex ante percentage fee
agreement between the Regents and Lead Counsel, the district court’s order
approving that arrangement, as well as the Regent’s determination of which
non-lead counsel are entitled to attorneys’ fees from the class recovery, and in
what amounts. An unnamed class member may not circumvent a PSLRA lead
plaintiff’s authority by filing an independent tort lawsuit on behalf of members
of the class complaining of acts and omissions that occurred in the context of the
PSLRA-governed litigation. Given the specific requirements of the PSLRA, as
well as the facts of this case, Brown’s allegations must be brought, if at all, in a
motion under Rule 60(b) of the Federal Rules of Civil Procedure by the Regents
in their capacity as lead plaintiff.11
       B.     Dismissal for Failure to Plead Fraud with Particularity
              1.     9(b) Deficiency
       The district court found that, in the alternative, Brown’s complaint failed
to meet the pleading requirements of Rule 9(b). Brown argues that the district
court held him to too high of a pleading standard. After reviewing Brown’s
complaint de novo, we agree that it failed to meet the requirements of Rule 9(b).
       This Circuit has held that “the Rule 9(b) standards require specificity as



       10
          Brown does not argue that Bilek’s portion of the fees should be re-allocated to the
remaining attorneys rather than remitted to the class. Brown would lack standing to advance
such a proposed remedy.
       11
           Because this holding mandates dismissal of Brown’s complaint for failure to state
a claim, we do not opine on the subsequent and even more fact-specific question of whether,
and if so, under what circumstances, a proper plaintiff may bring a tort lawsuit to challenge
a PSLRA-governed fee award.

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                                  No. 09-20654

to the statements (or omissions) considered to be fraudulent, the speaker, when
and why the statements were made, and an explanation why they are
fraudulent.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing
Nathenson v. Zonagen, 267 F.3d 400, 412 (5th Cir. 2001)). “What constitutes
‘particularity’ will necessarily differ with the facts of each case and hence the
Fifth Circuit has never articulated the requirements of Rule 9(b) in great detail,”
but “has found that the plaintiff must allege with particularity ‘the defendant’s
acts with the plaintiff contends amount to fraud.’” Guidry v. Bank of LaPlace,
954 F.2d 278, 288 (5th Cir. 1992) (quoting Unimobil 84, Inc. v. Spurney, 797 F.2d
214, 217 (5th Cir. 1986)).
      Turning to the facts of this case, Brown’s complaint presents Bilek’s
alleged misbehavior in general terms that fall short of the heightened pleading
requirements of Rule 9(b). Brown’s complaint alleges that, “Bilek [] provided to
the [In re Enron] Court information that was, in some cases patently and
demonstrably false, and in other cases, grossly exaggerated, in order to justify
a fee award for him and the law firms with whom he was affiliated.” However,
Bilek did not identify with particularity even one such piece of information, did
not plead facts demonstrating why the information was patently and
demonstratably false, and did not state to what extent it was exaggerated. His
complaint further alleges, “Defendants breached [their] fiduciary duty by
providing false information to the Court to justify a fee award, by violating the
criminal laws, and by violating various attorney ethical obligations imposed by
the State Bar of Texas.” Brown does not support these general allegations with
particular facts tending to show specifically what information was false, why the
information was false, or which criminal laws and ethical obligations Bilek
violated. After reviewing the facts of this case, we agree that Brown’s complaint
failed plead his allegations with the particularity required by Rule 9(b).



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             2.    Denial of Leave to Amend
       Brown also contends that, after finding his pleading deficient under Rule
9(b), the district court should have either granted him leave to amend his
pleadings or dismissed his suit without prejudice. On review, this court must
“review the denial of leave to amend the complaint for abuse of discretion.”
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002). Brown
provided the district court no guidance as to why he should be given an
opportunity to replead, or to the substance of his proposed amended complaint.
Courts of this Circuit have affirmed denials of motions for leave to amend when
plaintiffs “fail[] to amend their complaint as a matter of right, fail[] to furnish
the district court with a proposed amended complaint, and fail[] to alert both the
court and defendants to the substance of their proposed amendment.” Id. at 315.
Even on appeal, Brown has not identified any facts he would add to his
complaint if given the opportunity to replead, but instead has asserted that “it
escapes logical reasoning as to how his Petition could be made more ‘particular.’”
Brief of Appellant Michael L. Brown at 22, Brown v. Bilek, No. 09-20654 (5th
Cir. Nov. 25, 2009). We therefore cannot say that the district court abused its
discretion in dismissing Brown’s complaint without first providing him the
opportunity to replead.
IV.    CONCLUSION
       Brown’s complaint was properly dismissed for failure to state a claim
because, on the facts of this case, his allegations must be presented through the
lead plaintiff in a manner consistent with the PSLRA. Additionally, Brown’s
complaint was properly dismissed because he failed to plead his claims with
particularity as required by Rule 9(b). We hold that the district court did not err
in dismissing Brown’s complaint with prejudice.
Affirmed.



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