                          UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 06-1788


In Re: MUTUAL FUNDS INVESTMENT LITIGATION
________________________________________

In Re: ALGER, COLUMBIA, JANUS, MFS, ONE GROUP, PUTNAM, and
ALLIANZ DRESDNER
________________________________________

MATTHEW WIGGENHORN, individually   and   on   behalf   of   all
others similarly situated,

              Plaintiff – Appellant,

         v.

AXA EQUITABLE LIFE INSURANCE COMPANY, formerly known        as
Equitable Life Assurance Society of the United States,

              Defendant – Appellee.



                          No. 06-1789


In Re: MUTUAL FUNDS INVESTMENT LITIGATION
________________________________________

In Re: ALGER, COLUMBIA, JANUS, MFS, ONE GROUP, PUTNAM, and
ALLIANZ DRESDNER
________________________________________

EDMUND WOODBURY, individually and on behalf of all others
similarly situated,

              Plaintiff – Appellant,

         v.
NATIONWIDE LIFE INSURANCE COMPANY,

               Defendant – Appellee.



                           No. 06-1790


In Re: MUTUAL FUNDS INVESTMENT LITIGATION
________________________________________

In Re: ALGER, COLUMBIA, JANUS, MFS, ONE GROUP, PUTNAM, and
ALLIANZ DRESDNER
________________________________________

NIKITA MEHTA, as Trustee of the N.D. Mehta Living Trust,
individually and on behalf of all others similarly
situated,

               Plaintiff – Appellant,

          v.

AIG SUNAMERICA LIFE ASSURANCE COMPANY, formerly known as
Anchor National Life Assurance Company,

               Defendant – Appellee.



                           No. 06-2010


In Re: MUTUAL FUNDS INVESTMENT LITIGATION
_______________________________________

In Re: ALGER, COLUMBIA, JANUS, MFS, ONE GROUP, PUTNAM, and
ALLIANZ DRESDNER
_______________________________________

PAULA BEALS,

               Plaintiff – Appellant,

          v.


                                2
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY,

                Defendant – Appellee.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.  J. Frederick Motz, District Judge.
(1:04-md-15863-JFM)


Argued:   October 31, 2008              Decided:   January 30, 2009


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert L. King, St. Louis, Missouri, for Appellants.
David A. Jones, AKIN, GUMP, STRAUSS, HAUER & FELD, San Antonio,
Texas; Charles Platt, WILMER, CUTLER, PICKERING, HALE & DORR,
L.L.P., New York, New York, for Appellees.    ON BRIEF: Klint L.
Bruno,   KOREIN   TILLERY,   L.L.C.,   Chicago,   Illinois,  for
Appellants. Daniel McNeel Lane, Jr., AKIN, GUMP, STRAUSS, HAUER
& FELD, San Antonio, Texas, for Appellees AIG SunAmerica Life
Assurance Company and The Variable Annuity Life Insurance
Company; Michele Odorizzi, Sheila Finnegan, MAYER, BROWN, ROWE &
MAW, L.L.P., Chicago, Illinois, for Appellee AXA Equitable Life
Insurance Company, formerly known as Equitable Life Assurance
Society of the United States; Gordon Pearson, WILMER, CUTLER,
PICKERING, HALE & DORR, L.L.P., Washington, D.C., for Appellee
Nationwide Life Insurance Company.


Unpublished opinions are not binding precedent in this circuit.




                                 3
PER CURIAM:

      Matthew   Wiggenhorn,      Edmund    Woodbury,       Nikita    Mehta,    and

Paula   Beals   (collectively      “Plaintiffs”)       appeal       the   district

court’s dismissal of their respective class action suits against

AXA Equitable Life Insurance Co., Nationwide Life Insurance Co.,

AIG SunAmerica Life Assurance Co., and Variable Annuity Life

Insurance Co. (collectively “Defendants”).                 The district court

dismissed the cases based on its determination that the suits

are preempted by the Securities Litigation Uniform Standards Act

of 1998 (“SLUSA”).     Finding no error, we affirm.



                                       I

      Plaintiffs    purchased    variable     annuities      from    Defendants.

Although variable annuities offer a range of investment options,

those at issue here involved mutual funds containing foreign

securities.

      Policyholders    of   variable      annuities   allocate       money    among

the   various   investment    accounts     offered    by    the   annuity.      If

policyholders      choose   to   invest     in    variable    accounts,       they

further   apportion     their    money     into    sub-accounts       that    each

correspond with a mutual fund invested in by Defendants.                       The

money that policyholders invest in a particular sub-account goes

into a pool of assets, owned by Defendants, which is used to

purchase shares of the designated mutual fund.                Rather than own

                                       4
the mutual fund shares themselves, policyholders receive sub-

account Accumulation Units (“AUs”) in proportion to the amount

of money they have invested in the sub-account.

      The value of a sub-account’s AU is determined once every

business day at the close of trading on the New York Stock

Exchange (“NYSE”), 4:00 p.m. Eastern Time.                   The value is based

on   the   corresponding       mutual     fund’s    net    asset   value     (“NAV”),

which is also determined at the close of the NYSE.                     To determine

the NAV of a mutual fund, Defendants use the closing trade price

of each security in its home market; as a result, the closing

prices of foreign securities whose markets close earlier than

4:00 p.m. Eastern Time are several hours old by the time the

mutual fund’s NAV is calculated.

      Further, value movements on the NYSE which occur after the

close      of   foreign    securities          markets     often     foreshadow      a

corresponding       movement    in   those       markets    the    following    day.

Resourceful short-traders can take advantage of these “stale”

foreign     securities    prices     by    buying    or    selling    shares    of   a

mutual     fund’s   corresponding       sub-account,       depending    on   whether

the securities are undervalued or overvalued, and then quickly

selling or buying those shares once the foreign market reflects

the most recent value movement.                This practice is called “market

timing.”        When annuity holders “market time,” it dilutes the

ownership interests of other sub-account holders.

                                           5
                                             II

      Plaintiffs brought these putative class actions on behalf

of all variable annuity policyholders who (a) invested in sub-

accounts       corresponding         with    mutual   funds   containing     foreign

securities and (b) did not engage in market timing.                        The four

actions were filed in Illinois state court and were based on

state     law.         Initially,      Plaintiffs     claimed    that    Defendants

negligently relied on the stale NAVs to calculate the value of

the       sub-account         shares        and    that    Defendants       deceived

policyholders, or at least failed to provide them with complete

and truthful information, by not informing them of the potential

harm of market timing.

        Defendants removed each of the four cases to the United

States District Court for the Southern District of Illinois and

moved     to    dismiss       them    on    the   basis   that   the    claims   were

preempted by SLUSA.             Plaintiffs moved to remand the cases for

lack of subject matter jurisdiction, arguing in part that SLUSA

did not apply because Plaintiffs were all non-trading securities

holders. 1      Before the district court ruled on these motions, the

Judicial       Panel    for     Multidistrict       Litigation    transferred    the


      1
       This argument has since been foreclosed by Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006), which
held that SLUSA precludes the state law claims of non-trading
securities holders, just as it does the state law claims of
securities purchasers and sellers.


                                              6
actions to the United States District Court for the District of

Maryland,     where   they      were       consolidated         with    an     existing

multidistrict    proceeding        involving         other    market   timing       cases.

Defendants    renewed      their    motions          to   dismiss    based     on    SLUSA

preemption.

     In an effort to avoid SLUSA preemption, Plaintiffs amended

their    complaints   to    assert     a       single     claim:     that    Defendants

negligently exposed their investments to the dilution effect of

market    timing.        Nevertheless,          the       district     court    granted

Defendants’    motions     to   dismiss         on    SLUSA    preemption      grounds.

Specifically, the district court found that Plaintiffs’ claims

were preempted by 15 U.S.C. § 78bb(f)(1)(A), which states:

     No covered class action based upon the statutory or
     common law of any State or subdivision thereof may be
     maintained in any State or Federal court by any
     private party alleging--
     (A) a misrepresentation or omission of a material fact
     in connection with the purchase or sale of a covered
     security[.]

The district court held that Plaintiffs’ allegations involved a

“misrepresentation or omission,” reasoning:

     The element of a misrepresentation or omission of a
     material fact is satisfied when a plaintiff alleges a
     misrepresentation  concerning   the   value  of   the
     securities sold or the consideration received in
     return. That is exactly what the plaintiffs have done
     here, despite their emphatic disavowal of their prior
     explicit allegations of misrepresentation, and their
     pared-down amended complaint.      Putting aside the
     convoluted terminology and formulas associated with
     variable annuities, at bottom the plaintiffs simply


                                           7
        allege that the defendants incorrectly priced certain
        investment options provided under the annuities.

In re Mut. Funds Inv. Litigation, 437 F.Supp.2d 439, 443 (D.Md.

2006)(citations and punctuation omitted).

        The    district      court   also    found       that    Defendants’     alleged

misrepresentations occurred “in connection with” the purchase or

sale of securities.            Plaintiffs argued that because they did not

trade    the       securities     themselves,      but    were    merely     non-trading

holders       of    the    securities,    Defendants’       misrepresentations         to

Plaintiffs         could    not   have   occurred     “in       connection    with”   the

purchase or sale of securities.                    Rejecting this argument, the

district court noted that in Merrill Lynch the Supreme Court

held that SLUSA applies broadly and preempts claims brought by

holders of securities, as well as by purchasers and sellers.

Merrill Lynch, 547 U.S. at 88-89.                    For the above reasons, the

district court granted Defendants’ motions to dismiss.



                                            III

        We review de novo the dismissal of a complaint pursuant to

Fed. R. Civ. P. 12(b)(6).                Constantine v. Rectors and Visitors

of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).                              We

accept as true “all well-pleaded allegations and . . . view the

complaint in a light most favorable to the plaintiff.”                                Id.

(citations         omitted).       Further,       dismissal      is   not    appropriate


                                             8
“unless it appears certain that the plaintiff can prove no set

of facts which would support her claim and would entitle her to

relief.”       Id.     (punctuation      omitted).           Questions    of    subject

matter jurisdiction are also reviewed de novo.                       Lontz v. Tharp,

413 F.3d 435, 439 (4th Cir. 2005).

     Having    reviewed     the    record        and   the    applicable       law,   and

having   had     the    benefit    of    oral      argument,    we     conclude       that

Plaintiffs’      claims   are     preempted       by   SLUSA.        Accordingly,      we

affirm   based    substantially         on   the    reasoning     of    the    district

court. See In re Mut. Funds Inv. Litigation, 437 F.Supp.2d 439

(D.Md. 2006). 2

                                                                               AFFIRMED




     2
      In light of our disposition, we need not address the
parties’ arguments regarding alternative grounds for dismissal.
Additionally, given our conclusions regarding the motions to
dismiss, we find that the district court did not err in failing
to remand the case to state court.


                                             9
