Clinton v. Security Benefit Life ( 2023 )


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  • Appellate Case: 21-3035    Document: 010110833726   Date Filed: 03/28/2023   Page: 1
    FILED
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    March 28, 2023
    UNITED STATES COURT OF APPEALS
    Christopher M. Wolpert
    FOR THE TENTH CIRCUIT                       Clerk of Court
    _________________________________
    ELLA CLINTON; WILLIAM
    CARRICK; TERRI L. STAUFFER-
    SCHMIDT; JEAN P. WRIGHT;
    MICHAEL A. WEBBER; DONALD P.
    COX; HOWARD ROSEN; WAI HEE
    YUEN; MARTHA MILLER COX,
    Plaintiffs - Appellants,
    v.                                                    No. 21-3035
    SECURITY BENEFIT LIFE
    INSURANCE COMPANY,
    Defendant - Appellee.
    _________________________________
    Appeal from the United States District Court
    for the District of Kansas
    (D.C. No. 5:20-CV-04038-HLT-KGG)
    _________________________________
    Andrew S. Friedman of Bonnett Fairbourn Friedman & Balint PC (Francis J.
    Balint, Jr. of Bonnett Fairbourn Friedman & Balint PC, Phoenix, Arizona;
    Adam M. Moskowitz and Howard H. Bushman of The Moskowitz Law Firm,
    PLLC, Coral Gables, Florida; and Eric D. Barton of Wagstaff & Cartmell, LLP,
    Kansas City, Missouri, with him on the briefs), for Plaintiffs-Appellants.
    Robert D. Phillips, Jr. of Alston & Bird LLP (Samuel J. Park and Gillian H.
    Clow of Alston & Bird LLP, Los Angeles, California; Michael A. Valerio of
    Alston & Bird LLP, Washington, District of Columbia; and James D. Oliver,
    Anthony F. Rupp, and Holly Dyer of Foulston Siefkin LLP, Overland Park,
    Kansas, with him on the brief), for Defendant-Appellee.
    _________________________________
    Appellate Case: 21-3035   Document: 010110833726     Date Filed: 03/28/2023     Page: 2
    Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.
    _________________________________
    ROSSMAN, Circuit Judge.
    _________________________________
    Plaintiffs are consumers who sued Defendant Security Benefit Life
    Insurance    Company      under   the   Racketeer    Influenced    and       Corrupt
    Organizations Act (“RICO”), 
    18 U.S.C. § 1962
    , and state law, alleging Security
    Benefit developed a fraudulent scheme to design and market certain annuity
    products. This appeal requires us to determine whether the district court
    properly dismissed Plaintiffs’ first amended complaint without prejudice for
    lack of particularity and plausibility in pleading fraud. Because we conclude
    Plaintiffs have alleged facially plausible fraud claims with the particularity
    required under Federal Rule of Civil Procedure 9(b), the district court erred in
    granting Security Benefit’s motion to dismiss under Federal Rule of Civil
    Procedure 12(b)(6). Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we reverse
    and remand for further proceedings.
    I
    Background1
    This case involves equity-indexed deferred annuities, a type of insurance
    product marketed and sold to Plaintiffs by Security Benefit. Before turning to
    We rely on the complaint’s allegations for our account of this appeal’s
    1
    background.
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    our analysis, we will explain the technical features of this annuity. As we
    discuss later, the complaint’s principal fraud claims concern these features and
    the alleged undisclosed effects of their collective operation on Plaintiffs’
    investments.
    A. Equity-Indexed Deferred Annuities
    1. Basic Features
    A deferred annuity is a contract between a consumer and an insurance
    company. A consumer purchases the deferred annuity with a single “up-front
    payment”—an initial premium—deposited into the consumer’s account for a
    deferral period. Aplt. App. vol. 1 at 161 ¶ 23. The deferral period is a term of
    years specified in the annuity contract. The insurance company invests the
    consumer’s initial premium over the deferral period. A deferred annuity is a
    long-term investment because an annuity owner often cannot access their
    initial premium during the deferral period without incurring a financial
    penalty. An annuity owner may receive a lump sum payment at the end of their
    deferral period, or a stream of periodic payments.
    An equity-indexed deferred annuity—at issue here—gives consumers
    the choice to allocate their initial premium among several crediting options.
    Consumers may allocate their initial premium to a crediting option that
    provides a fixed interest rate “not less than a modest minimum guaranteed
    rate,” or to a crediting option linked to designated stock indices. 
    Id.
     at 161-62
    3
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    ¶ 24.2 Equity-indexed deferred annuities are usually linked to third-party
    stock indices like the Standard & Poor’s 500. One key feature of an
    equity-indexed deferred annuity is its performance is tied to the success of the
    linked financial market.
    2. Participation Rates & “Caps”
    The index-linked return credited to the investor can vary not only based
    on the performance of the stock index, but also based on the particular terms
    of the annuity contract. Participation rates and “caps” are common features of
    annuity products. A cap is a limit—usually a fixed percentage—on the amount
    an annuity owner earns from the underlying stock index’s gains. A
    participation rate is the percentage of the underlying stock index’s
    performance that the insurance company agrees to pass along to the investor.3
    2An equity-indexed deferred annuity “guarantees a minimum return
    to the contract owner if the contract is held to maturity.” Equity Index
    Insurance Products, Securities Act Release No. 7438, 
    Fed. Sec. L. Rep. (CCH) ¶ 85,957
     (Aug. 20, 1997). In this way equity-indexed deferred
    annuities “combine features of traditional insurance products (guaranteed
    minimum return) and traditional securities (return linked to equity
    markets).” 
    Id.
    3 The district court provides an example: if an annuity’s participation
    rate is 70% and the underlying index increases by 10%, then the annuity
    account is credited with 70% of the index’s increase, or 7%. Aplt. App. vol. 8
    at 1951.
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    Higher participation rates and higher caps yield a higher rate of interest
    credited to the annuity holder’s account. Many equity-indexed deferred
    annuities impose both caps and participation rates.
    B. Security Benefit’s Equity-Indexed Deferred Annuity Products
    Shortly after being acquired by a private equity firm in 2010, Security
    Benefit developed and marketed equity-indexed deferred annuity products. It
    sold two annuities: the “Secure Income Annuity” and the “Total Value Annuity”
    (collectively, the “annuity products”). Aplt. App. vol. 1 at 157 ¶ 3. Investors
    paid fees and charges associated with the annuity products. Plaintiffs allege
    these annuity products share several features relevant to their fraud claims.
    1. Proprietary Indices
    Equity-indexed deferred annuities typically tie their performance to
    established financial markets like the Standard & Poor’s 500. The annuity
    products at issue here were associated with proprietary stock indices used by
    Security Benefit.
    From 2012 to 2015, Security Benefit used three proprietary indices. Two
    were linked to the Total Value Annuity product. One was linked to the Secure
    Income Annuity product.4 Once a consumer bought one of these annuity
    4The proprietary indices are called the “5-Year Annuity Linked TV
    Index,” the “Morgan Stanley Dynamic Allocation Index Account,” and the
    “BNP Paribas High Dividend Plus Annual Point to Point Index Account –
    Year 2.” Aplt. App. vol. 1 at 158 ¶ 5. We discuss the individual proprietary
    5
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    products, Security Benefit allowed the consumer to allocate some or all their
    initial premium to the corresponding proprietary index.
    According to Plaintiffs, Security Benefit’s annuities linked to the
    proprietary indices “would—by design—produce near-zero returns due to
    misrepresented and undisclosed features, risks, charges and attributes.” Aplt.
    App. vol. 1 at 156-57 ¶ 2. Security Benefit misleadingly marketed the annuity
    products as attractive investment opportunities—uncapped and with 100%
    participation rates in the proprietary indices. But Plaintiffs allege the annuity
    products were, in practice, actually capped, and had less than 100%
    participation rates. The only information “reasonably available” to consumers
    about Security Benefit’s proprietary indices, Plaintiffs allege, was in the
    documents created and provided to them by Security Benefit. 
    Id.
     at 183-84
    ¶ 84.
    2. “Backcasting” Proprietary Indices’ Performance
    “Backcasting” is a methodology used to assess annuity performance by
    looking at a selective period of an asset’s past performance to project its future
    returns. The proprietary indices used by Security Benefit were relatively new,
    but Security Benefit used backcasted past performance data for periods
    predating their creation. Security Benefit’s backcasted data allegedly relied on
    indices as they become relevant in our analysis of Plaintiffs’ allegations and
    the district court’s dismissal order.
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    “cherry-picked” periods when the proprietary indices’ assets showed
    uncommonly high gains. See Aplt. App. vol. 1 at 174 ¶ 62. According to
    Plaintiffs, this representation of the proprietary indices’ backcasted
    performance was misleading, inaccurately representing outsized future
    returns. Security Benefit also assumed a 100% participation rate over the
    backcasted period. This assumption was false, Plaintiffs allege, because
    “hedging costs associated with . . . market conditions would preclude” full
    participation in the proprietary indices. 
    Id.
     at 174 ¶ 64. According to the
    complaint, Security Benefit thus misleadingly suggested Plaintiffs would
    receive future returns that could not actually be achieved. See 
    id.
     at 174-75
    ¶ 65.
    3. Volatility Control Overlay
    A volatility control overlay is a feature designed to prevent price
    variation in “assets encompassed by [an] index.” Aplt. App. vol. 1 at 168 ¶ 46.
    For example, high volatility means a stock’s price moves up and down in wide
    ranges within a short period of time. Lower volatility means the price changes
    at a slower, more gradual pace. In preventing price variation, the volatility
    control overlay is designed to protect investors from losses caused by asset
    volatility.
    Plaintiffs claim Security Benefit made misrepresentations and omitted
    material information about the volatility control overlay feature of its annuity
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    products and how it affected their investments. For example, Security Benefit
    allegedly misrepresented that the volatility control overlay benefited Plaintiffs
    and other consumers who purchased the annuity products. However, Security
    Benefit’s volatility control overlay offered Plaintiffs no benefit because the
    annuity products actually had a 0% interest floor. This means the owner never
    lost his initial investment. Security Benefit also failed to disclose that the
    volatility control overlay actually reduced Plaintiffs’ investment returns. And
    the volatility control overlay increased a fee, called an “index cost spread,” that
    Plaintiffs had to pay Security Benefit. 
    Id.
     at 186 ¶ 91. According to Plaintiffs,
    Security Benefit made these misrepresentations and omissions in various
    documents described in the complaint.
    C. Security Benefit’s Misrepresentations & Omissions
    About the Annuity Products
    Plaintiffs claim Security Benefit fraudulently induced them to purchase
    their annuity products using two types of documents. These materials
    allegedly misrepresented that the annuity products would yield favorable
    investment returns. What these documents said—or failed to say—about the
    annuity products is central to Plaintiffs’ claims.
    1. Marketing Materials
    Security Benefit allegedly induced Plaintiffs to purchase annuity
    products by using misleading marketing materials. According to Plaintiffs,
    8
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    Security Benefit created backcasted performance data, then used it to
    hypothetically illustrate the proprietary indices’ performance, and included
    those hypothetical illustrations, derived from backcasted data, in its
    marketing materials to represent favorable future returns.
    The marketing materials also compared the proprietary indices’
    performance to lower-performing, non-proprietary indices like the Standard &
    Poor’s 500 and Russell 1000. These comparisons allegedly created a false
    choice, incentivizing consumers to allocate their premiums to Security
    Benefit’s proprietary indices. Plaintiffs claim Security Benefit’s misleading
    representation that the proprietary indices were uncapped and had a 100%
    participation rate further heightened the contrast between the proprietary and
    non-proprietary indices’ performance.
    2. Statements of Understanding
    A Statement of Understanding is a document Security Benefit provided
    to the consumer at the time of sale that describes the annuity product and its
    features. Security Benefit required the purchaser of an annuity product to sign
    a Statement of Understanding; these documents were also available to
    consumers online. According to Plaintiffs, the Statements of Understanding
    made material misrepresentations and omitted material facts about the
    proprietary indices.
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    For example, the Statement of Understanding about the “5-Year Annuity
    Linked TV Index” (“ALTV Index”) did not disclose how various features of the
    Total Value Annuity offset the ALTV Index’s below-market returns and
    negatively affected the ALTV Index’s performance. The ALTV Index Statement
    of Understanding also did not disclose that the Index was designed using a
    selective, backcasted performance period. Along with these omissions, the
    ALTV Index Statement of Understanding allegedly misrepresented the
    benefits of the volatility control overlay. According to Plaintiffs, the volatility
    control overlay actually worked to reduce the proprietary indices’ participation
    rates. Security Benefit further misrepresented investors would benefit from
    allocating their premiums to the ALTV Index because it was not tied to equity
    and bond markets—but this actually reduced investors’ returns.5
    D. Procedural History
    In November 2019, Plaintiff Clinton sued Security Benefit on behalf of
    herself and others similarly situated in federal district court in the Southern
    District of Florida. Plaintiff Clinton alleged Security Benefit devised a
    fraudulent scheme to develop and sell equity-indexed deferred annuities that
    it knew would produce near-zero returns for consumers and relied on allegedly
    The complaint makes similar allegations about other Statements of
    5
    Understanding    provided    to   Plaintiffs,  which     also  contained
    misrepresentations or omissions about the proprietary indices.
    10
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    deceptive marketing practices to induce consumers to purchase these annuity
    products. See generally Class Action Complaint, Clinton v. Sec. Benefit Life Ins.
    Co., 
    519 F. Supp. 3d 943
     (D. Kan. 2021) (Case No. 5:20-cv-0438-HLT-KGG),
    ECF No. 1. The company linked the annuities’ performance to recently created,
    synthetic proprietary indices instead of to traditional markets like the
    Standard & Poor’s 500. To fraudulently induce consumers’ purchase of the
    annuity products, Security Benefit used marketing materials and the
    Statements of Understanding that contained misrepresentations and
    omissions about how the proprietary indices operated and were expected to
    perform. Security Benefit’s alleged conduct, Plaintiff Clinton claimed, violated
    RICO, 
    18 U.S.C. § 1962
    (c) and (d). Plaintiff Clinton alleged the annuity
    products’ costs, fees, and “performance dampening features” operated
    collectively to offset the proprietary indices’ returns, and that Security Benefit
    did not disclose the “collective impact” of these features on consumers’
    investments. Class Action Complaint, Clinton, 
    519 F. Supp. 3d 943
    , ECF No. 1
    at 23 ¶ 81.
    In January 2020, Plaintiffs amended their complaint to add additional
    plaintiffs and claims under RICO, 
    18 U.S.C. § 1962
    (c) and (d), along with
    consumer protection, unfair competition, and common law fraud claims under
    California, Illinois, Arizona, and Nevada state law. See Aplt. App. vol. 1 at 155.
    11
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    Security Benefit moved to dismiss, contending the complaint failed to
    plead plausible fraud claims with particularity.6 Aplt. App. vol. 7 at 1870-78.
    This action was then transferred to the District of Kansas under 
    28 U.S.C. § 1404.7
     In February 2021, the district court dismissed the complaint without
    prejudice.8 Aplt. App. vol. 8 at 1972-73. This timely appeal followed.
    6 Security Benefit also argued in its motion to dismiss that the
    McCarran-Ferguson Act barred Plaintiffs’ RICO claims. The district court
    concluded the McCarran-Ferguson Act did not reverse-preempt Plaintiffs’
    RICO claims. The district court’s ruling on this issue is not before us on
    appeal.
    7 Security Benefit asked to transfer the case to federal district court
    in Kansas, contending that was a more convenient forum. The district court
    granted the motion because the lawsuit could originally have been brought
    in the District of Kansas, for the “convenience of the parties and witnesses”
    and “in the interest of justice.” R. & R. on Def.’s Mot. to Transfer, Clinton,
    
    519 F. Supp. 3d 943
     (Case No. 5:20-cv-0438-HLT-KGG), ECF No. 73 at 3
    (citing 
    28 U.S.C. § 1404
    (a)); Order, ECF No. 75 (adopting magistrate judge’s
    report and recommendation to transfer).
    8 In 2019, the district court dismissed an action by a different named
    plaintiff alleging RICO claims against Security Benefit. See Ogles v. Sec.
    Benefit Life Ins. Co., 
    401 F. Supp. 3d 1210
     (D. Kan. 2019). There, the district
    court concluded the plaintiff’s “RICO theory alleging the fraudulent design
    of the [Total Value Annuity] is dismissed for failure to state a claim under
    Rule 12(b)(6),” 
    id. at 1213
    , because the plaintiff had “not pleaded mail and
    wire fraud with sufficient particularity to state a valid RICO claim,” 
    id.
    at 1228 n.21. The plaintiff in Ogles did not appeal the dismissal order.
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    II
    Discussion
    A. Appellate Jurisdiction
    We must first determine whether the dismissal of the complaint
    without prejudice was a “final decision” over which we have appellate
    jurisdiction. See 
    28 U.S.C. § 1291
    . “Although neither party challenges our
    appellate jurisdiction, we have an independent duty to examine our own
    jurisdiction.” Amazon, Inc. v. Dirt Camp, Inc., 
    273 F.3d 1271
    , 1274 (10th
    Cir. 2001) (citation omitted).
    “A dismissal of the complaint is ordinarily a non-final, nonappealable
    order (since amendment would generally be available), while a dismissal of
    the entire action is ordinarily final.” Moya v. Schollenbarger, 
    465 F.3d 444
    ,
    449 (10th Cir. 2006) (citation omitted). We scrutinize complaint dismissals
    “to pinpoint those situations wherein, in a practical sense, the district court
    by its order has dismissed a plaintiff’s action as well.” 
    Id.
     (citation omitted).
    In doing so, we “look to the substance and objective intent of the district
    court’s order, not just its terminology.” 
    Id.
     (emphasis omitted).
    The district court did “not grant leave to amend” and dismissed the
    complaint “without prejudice.” Aplt. App. vol. 8 at 1972 n.14. It then entered
    judgment and “closed” the case. Id. at 1974. A dismissal without prejudice
    is “usually not a final decision.” Amazon, 
    273 F.3d at 1275
    . But as Plaintiffs
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    correctly contend, a dismissal without prejudice may be a final decision
    where the district court dismisses the action as well. See Moya, 
    465 F.3d at 449
    . Here, the district court denied leave to amend, entered judgment for
    Security Benefit, and closed the case. Under the circumstances, this
    indicates the district court’s objective intent to dismiss the entire action.
    See 
    id. at 448-49
    ; accord Lewis v. Clark, 
    577 F. App’x 786
    , 792 (10th Cir.
    2014) (unpublished) (holding that order dismissing a complaint without
    prejudice for failure to state a claim was a final dismissal of the action
    because the court did not grant leave to amend and declared “this case is
    closed”). We thus conclude the order dismissing the complaint without
    prejudice disposed of the entire action and rendered the decision final under
    § 1291. We have jurisdiction and proceed to the merits.
    B. The district court erred in dismissing the complaint.
    The district court dismissed Plaintiffs’ complaint on two grounds; both
    are challenged in this appeal. First, we consider the district court’s
    conclusion that the complaint did not satisfy Federal Rule of Civil
    Procedure 9(b)’s particularity standard. We next consider the district
    court’s conclusion that Plaintiffs’ claims were implausible under Federal
    14
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    Rule of Civil Procedure 12(b)(6).9 As we explain, we agree with Plaintiffs
    that the district court committed reversible error.
    1. Standard of Review
    We review de novo the dismissal of a complaint under Rule 12(b)(6).
    Childs v. Miller, 
    713 F.3d 1262
    , 1264 (10th Cir. 2013). “The dismissal of a
    complaint . . . for failing to satisfy the requirements of Rule 9(b) is treated
    as a dismissal for failure to state a claim” under Rule 12(b)(6). Seattle-First
    Nat’l Bank v. Carlstedt, 
    800 F.2d 1008
    , 1011 (10th Cir. 1986) (citation
    omitted).
    To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege
    facts that, if true, “state a claim to relief that is plausible on its face.”
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. Corp. v.
    Twombly, 
    550 U.S. 544
    , 570 (2007)). We have explained that, when Iqbal
    speaks of a claim’s facial plausibility, the complaint must plead “factual
    content that allows the court to draw the reasonable inference that the
    9We have never prescribed an order-of-operations for the analysis of
    fraud-based claims under Rules 9(b) and 12(b)(6), nor would it be prudent
    to do so. But here, where a plaintiff must plead “with particularity the
    circumstances constituting” the predicate acts of mail and wire fraud, see
    Fed. R. Civ. P. 9(b), we first determine if the complaint has satisfied
    Rule 9(b), and if so satisfied, we next consider, on the basis of the
    particularized allegations, whether the complaint alleges a facially
    plausible claim for relief, see Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009).
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    defendant is liable for the misconduct alleged.” Hogan v. Winder, 
    762 F.3d 1096
    , 1104 (10th Cir. 2014) (quoting Iqbal, 
    556 U.S. at 678
    ).
    In reviewing an order granting a motion to dismiss, our role is like
    the district court’s: we accept the well-pleaded facts alleged as true and view
    them in the light most favorable to the plaintiff, see Mayfield v. Bethards,
    
    826 F.3d 1252
    , 1255 (10th Cir. 2016), but need not accept “[t]hreadbare
    recitals of the elements of a cause of action [that are] supported by mere
    conclusory statements,” Iqbal, 
    556 U.S. at 678
     (citation omitted), or
    allegations plainly contradicted by properly considered documents or
    exhibits, Farrell-Cooper Mining Co. v. U.S. Dep’t of the Interior, 
    728 F.3d 1229
    , 1237 n.6 (10th Cir. 2013).10 “An allegation is conclusory where it
    states an inference without stating underlying facts or is devoid of any
    10  The dissent appears convinced this case can be decided by
    identifying what it believes to be contradictions between “the contents of
    the sales documents” and the “specific allegations of the complaint.” Dissent
    at 2. We reiterate our agreement, as a general matter, that courts need not
    accept “allegations that contradict a properly considered document.”
    Farrell-Cooper, 
    728 F.3d at
    1237 n.6 (citation omitted). We disagree,
    however, with the dissent’s suggestion this principle is dispositive in this
    case. This is not, for example, Kramer v. Time Warner Inc., 
    937 F.2d 767
    (2d Cir. 1991), cited as analogous by the dissent at 2. There, the complaint
    alleged that the proposed merger consideration was said to “consist of cash,
    at least in part.” 
    937 F.2d at 775
    . However, when reviewing the actual offer
    to purchase, the Second Circuit found the document “stated that the
    consideration would consist of ‘cash or debt or equity securities.’” 
    Id.
    (emphases added). There was thus a plain contradiction between what the
    complaint alleged and what the document said—one we cannot discern in
    this case, as we will explain.
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    factual enhancement.” Brooks v. Mentor Worldwide LLC, 
    985 F.3d 1272
    ,
    1281 (10th Cir. 2021) (citation omitted). “The nature and specificity of the
    allegations required to state a plausible claim will vary based on context.”
    Kan. Penn Gaming, LLC v. Collins, 
    656 F.3d 1210
    , 1215 (10th Cir. 2011)
    (citation omitted). Our task is to consider the complaint’s allegations “taken
    as a whole.” U.S. ex rel. Lemmon v. Envirocare of Utah, Inc., 
    614 F.3d 1163
    ,
    1173 (10th Cir. 2010) (citation omitted); see also Twombly, 
    550 U.S. at
    569
    n.14; George v. Urb. Settlement Servs., 
    833 F.3d 1242
    , 1257 (10th Cir. 2016);
    cf. In re Hain Celestial Group, Inc. Securities Litigation, 
    20 F.4th 131
    , 137-
    38 (2d Cir. 2021) (directing district court to “consider cumulative effect of
    the circumstantial allegations” when weighing scienter in securities fraud
    case).
    And like the district court, we may consider certain documents outside
    the four corners of the complaint. See, e.g., Smith v. United States, 
    561 F.3d 1090
    , 1098 (10th Cir. 2009) (citation omitted). “Generally, a court considers
    only the contents of the complaint when ruling on a 12(b)(6) motion,” but
    “[e]xceptions to this general rule include the following: documents
    incorporated by reference in the complaint; documents referred to in and
    central to the complaint, when no party disputes its authenticity; and
    17
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    ‘matters of which a court may take judicial notice.’” Berneike v.
    CitiMortgage, Inc., 
    708 F.3d 1141
    , 1146 (10th Cir. 2013) (citation omitted).11
    “[G]ranting [a] motion to dismiss is a harsh remedy which must be
    cautiously studied, not only to effectuate the spirit of the liberal rules of
    pleading but also to protect the interests of justice.” Dias v. City & Cnty. of
    Denver, 
    567 F.3d 1169
    , 1178 (10th Cir. 2009) (second alteration in original)
    (citation omitted). There is a “low bar for surviving a motion to dismiss,”
    Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 
    973 F.3d 1022
    , 1034 (10th Cir.
    2020), and “a well-pleaded complaint may proceed even if it strikes a savvy
    judge that actual proof of those facts is improbable, and ‘that a recovery is
    very remote and unlikely,’” Dias, 
    567 F.3d at 1178
     (quoting Twombly, 
    550 U.S. at 556
    ); see also Woods v. City of Greensboro, 
    855 F.3d 639
    , 652
    (4th Cir. 2017) (“Whether [a plaintiff] will have a difficult time establishing
    the merits of its claim is of little import now.”).12
    11At the request of the parties, the district court took judicial notice
    of certain documents under Federal Rule of Evidence 201 that were
    referenced in the complaint or publicly accessible and of undisputed
    authenticity. We conclude all of the judicially noticed documents considered
    by the district court fall appropriately within the four “exceptions”
    contemplated by Berneike, 
    708 F.3d at 1146
    , and the parties have never
    argued otherwise. Accordingly, we will consider the judicially noticed
    materials in our review of the dismissal order.
    Besides acknowledging “the long-established proposition that on a
    12
    motion to dismiss a complaint the court should accept as true all well-
    pleaded factual allegations in the complaint,” the dissent does not engage
    18
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023    Page: 19
    2. The district court erred in dismissing the complaint for failing to
    satisfy Rule 9(b)’s particularity standard.
    Plaintiffs allege Security Benefit violated the federal RICO statute,
    which makes it “unlawful for any person employed by or associated with
    any enterprise engaged in, or the activities of which affect, interstate or
    foreign commerce, to conduct or participate, directly or indirectly, in the
    with the standards on a motion to dismiss. Dissent at 1. Perhaps this leads
    the dissent to a misimpression about the court’s opinion. For example:
     We do not “accept specific allegations of the complaint as
    gospel.” Dissent at 2. In reviewing the motion to dismiss, we do
    accept well-pled allegations as true and draw reasonable
    inferences in favor of the Plaintiffs, as the Federal Rules and
    our precedents command.
     We do not accept “Plaintiffs’ allegations . . . that Security
    Benefit’s backcasting was deceptive.” Dissent at 4. We do
    conclude these arguments were advanced with legal sufficiency
    while declining “to weigh potential evidence that the parties
    might present at trial.” Peterson v. Grisham, 
    594 F.3d 723
    , 727
    (10th Cir. 2010).
     And we do not “endorse[] the complaint’s allegation that
    Security Benefit was deceptive in stating that its investment
    products are not capped.” Dissent at 6. We do find Plaintiffs’
    complaint advanced sufficient “[f]actual allegations . . . to raise
    the right to relief above the speculative level.” Twombly, 
    550 U.S. at 555
    .
    The dissent’s disagreement with the disposition appears to rest in good
    measure on conjecture that Plaintiffs will be unable to prove their claims.
    But the ultimate merits of Plaintiffs’ case is not the question before us.
    Rule 9(b) demands “particularity,” not proof. Fed. R. Civ. P. 9(b). And at the
    motion to dismiss stage, we are assessing the complaint only for legal
    sufficiency to state a claim, which means we do not “weigh potential
    evidence that the parties might present at trial.” Smith, 
    561 F.3d at 1098
    .
    19
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 20
    conduct of such enterprise’s affairs through a pattern of racketeering
    activity or collection of unlawful debt.” 
    18 U.S.C. § 1962
    (c).
    According to Plaintiffs, Security Benefit committed mail fraud in
    violation of 
    18 U.S.C. § 1341
     and wire fraud in violation of 
    18 U.S.C. § 1343
    .
    There is no dispute both mail and wire fraud are racketeering activities
    under RICO. See 
    18 U.S.C. § 1961
    (1)(B) (defining “racketeering activity” to
    include violations of 
    18 U.S.C. §§ 1341
     and 1343). Rule 9(b) states: “In
    alleging fraud or mistake, a party must state with particularity the
    circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “The
    particularity requirement of Rule 9(b) . . . applies to claims of mail and wire
    fraud.” Tal v. Hogan, 
    453 F.3d 1244
    , 1263 (10th Cir. 2006); accord George,
    
    833 F.3d at 1254
    . Therefore, as the district court correctly determined,
    Plaintiffs must plead “with particularity the circumstances constituting”
    Security Benefit’s alleged mail and wire fraud. Fed. R. Civ. P. 9(b).
    “Rule 9(b)’s purpose is ‘to afford [a] defendant fair notice’ of a
    plaintiff’s claims and the factual grounds supporting those claims.” George,
    
    833 F.3d at 1255
     (alteration in original) (citation omitted). “[T]he most basic
    consideration for a federal court in making a judgment as to the sufficiency
    of a pleading for purposes of Rule 9(b) . . . is the determination of how much
    detail is necessary to give adequate notice to an adverse party and enable
    that party to prepare a responsive pleading.” Lemmon, 
    614 F.3d at
    1172
    20
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 21
    (second alteration in original) (quoting 5A Charles Alan Wright & Arthur
    R. Miller, Federal Practice and Procedure § 1298 (4th ed. 2022)).13
    We have held that, to adequately plead mail and wire fraud under
    Rule 9(b), Plaintiffs must allege “the time, place and contents of the false
    representations, the identity of the party making the false statements, and
    the consequences” of the false representations. George, 
    833 F.3d at 1254
    (quoting Koch v. Koch Indus., 
    203 F.3d 1202
    , 1236 (10th Cir. 2000)); accord
    Tal, 
    453 F.3d at 1265
     (complaint satisfied Rule 9(b) when it “identified the
    parties, the dates, the content of the communications, [and] how they were
    allegedly fraudulent”). Put differently, a complaint stating the “who, what,
    where, when, and how” of the alleged fraud gives a defendant the requisite
    level of notice required under Rule 9(b).
    The district court determined Plaintiffs’ fraud allegations were not
    sufficiently particularized, concluding, “[a]lthough the first amended
    complaint expounds at length on Plaintiffs’ theory that [Security Benefit]
    fraudulently developed and marketed the equity-indexed annuities while
    using the mail and wires, less prevalent are any specific details of the ‘time,
    13Security Benefit claims Lemmon is inapposite because it involves
    the “unique” setting of the False Claims Act (“FCA”). We are not persuaded.
    While Lemmon applied Rule 9(b) in the context of FCA claims, our Rule 9(b)
    analysis was not limited to a specific statutory context and applies with
    equal force here. See Lemmon, 
    614 F.3d at 1171-72
    .
    21
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 22
    place and contents of the false representation[s].’” Aplt. App. vol. 8 at 1964
    (alteration in original) (quoting George, 
    833 F.3d at 1254
    ). On appeal,
    Plaintiffs contend the district court erred because the complaint states
    sufficient factual content to satisfy Rule 9(b)’s pleading standard.
    Reviewing de novo, we agree.14
    Plaintiffs allege Security Benefit fraudulently misrepresented the
    attributes and performance of its proprietary indices using the marketing
    materials and Statements of Understanding.15 Regarding the “who” and
    14Security Benefit insists Plaintiffs seek the application of a relaxed
    particularity standard. Aplee. Br. at 46. That is not how we read the
    arguments on appeal. In any event, our law concerning Rule 9(b)’s pleading
    standard is settled, and we apply it here. See George, 
    833 F.3d at 1254
    .
    15Plaintiffs contend for the first time on appeal that Security Benefit’s
    policy contracts are themselves misleading. Aplt. Br. at 18. The record
    confirms Plaintiffs never alleged Security Benefit made misrepresentations
    in the policy contracts, in addition to in their marketing materials and
    Statements of Understanding. See Aplt. App. vol. 7 at 1892 n.2. For
    example, in opposing Security Benefit’s motion to dismiss in the district
    court, Plaintiffs said “[we] do not challenge the validity of or
    representations in the policy contracts themselves. Instead, Plaintiffs allege
    that the . . . marketing materials, sales illustrations and [Statements of
    Understanding] are false and misleading because they contain half-truths
    and omit material facts.” 
    Id.
     at 1892 n.2. By asking this court to proceed in
    the face of such inconsistency, Plaintiffs seem to invite error. See John Zink
    Co. v. Zink, 
    241 F.3d 1256
    , 1259 (10th Cir. 2001) (concluding the invited
    error doctrine applied where appellants’ argument was “a complete reversal
    from the position they asserted” below, and therefore appellants could not
    seek “reversal on the ground that the requested action was error” (citation
    omitted)). Under these circumstances, we do not reach Plaintiffs’ first-
    instance appellate argument concerning the policy contracts.
    22
    Appellate Case: 21-3035   Document: 010110833726    Date Filed: 03/28/2023     Page: 23
    “when” of the alleged fraud, the complaint states Security Benefit delivered
    the Statements of Understanding to purchasers of the annuity products and
    required purchasers to sign the Statements with the insurance agent who
    made the sale. Documents central to Plaintiffs’ claims, incorporated by
    reference in the complaint, are fully consistent with this allegation. These
    documents show the specific date when each Plaintiff signed their
    Statement of Understanding, along with the signatures of the individual
    agents who secured the annuity products’ sale.
    The    district   court   concluded   Plaintiffs   failed   to   set   forth
    particularized details of when Security Benefit made the allegedly false
    representations. But the district court did not account for the specific dates
    in the Statements of Understanding—documents it had judicially noticed
    because Plaintiffs “explicitly reference[d]” the Statements throughout their
    complaint, and because the Statements are central to Plaintiffs’ claims.
    Aplt. App. vol. 1 at 252, vol. 8 at 1950. The dates in the Statements of
    Understanding are consistent with the allegations in the complaint
    concerning when Security Benefit allegedly induced each Plaintiff to
    purchase the annuity products. The complaint also details that Security
    Benefit created the allegedly misleading Statements of Understanding, and
    the marketing materials, and controlled the dissemination of these
    documents. See Schwartz v. Celestial Seasonings, Inc., 
    124 F.3d 1246
    , 1253
    23
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 24
    (10th Cir. 1997) (“Rule 9(b) requires that a complaint set forth the identity
    of the party making the false statements” and “give notice to the defendants
    of the fraudulent statements for which they are alleged to be responsible.”
    (citations omitted)).
    As to “where” Security Benefit’s allegedly false representations were
    made, Plaintiffs allege Security Benefit induced them to purchase its
    annuity products using its allegedly misleading sales documents and
    Statements of Understanding at the point of sale in specific locations—
    namely, Florida, California, Illinois, Arizona, and Nevada. And the
    complaint alleges Security Benefit’s misrepresentations were found in its
    marketing materials and the Statements of Understanding that Plaintiffs
    signed. See 
    id. at 1252
     (concluding a complaint “adequately identifie[d] the
    time, place, and contents” of allegedly fraudulent statements by identifying
    “the documents, press releases, and other communications which
    contain[ed] the statements”); see also Cooper v. Pickett, 
    137 F.3d 616
    , 627
    (9th Cir. 1997) (determining plaintiffs’ complaint identified the “where” for
    Rule 9(b) by alleging fraudulent statements were made in quarterly
    financial statements). At Security Benefit’s request, the district court
    properly took judicial notice of the marketing brochures because those
    brochures were referenced in the complaint. See Aplt. App. vol. 1 at 252-53
    (stating in request for judicial notice that “Plaintiffs’ [complaint] also
    24
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 25
    references and cites directly to the marketing brochures for each of the
    three indices” and that the “TVBI Brochure . . . was a marketing brochure
    allegedly presented at the point of sale to [one plaintiff] . . . and it is
    referenced in the [complaint]”).
    The complaint also sufficiently identifies the “what” and the “how”—
    the content of Security Benefit’s Statements of Understanding and
    marketing materials and in what way they were allegedly fraudulent.16 See,
    e.g., Tal, 
    453 F.3d at 1265
     (finding complaint which “identified the parties,
    the dates, the content of the communications, how they were allegedly
    fraudulent and how they furthered the fraudulent enterprise” satisfied
    Rule 9(b)). For instance, the complaint alleges Security Benefit represented
    the proprietary indices were uncapped and had a 100% participation rate.
    16 The dissent has concluded Plaintiffs’ allegations lack merit and
    finds “there is nothing false or misleading about the . . . sales documents.”
    Dissent at 3. But the “bedrock principle” at this stage is “that a judge ruling
    on a motion to dismiss must accept all allegations as true and may not
    dismiss on the ground that it appears unlikely the allegations can be
    proven.” Robbins v. Oklahoma, 
    519 F.3d 1242
    , 1247 (10th Cir. 2008).
    Indeed, where, as here, the plausibility and particularity pleading
    standards are satisfied, “[a] Rule 12(b)(6) motion to dismiss is not a suitable
    procedure for determining that these documents could not possibly have
    been misleading.” Bible v. United Student Aid Funds, Inc., 
    799 F.3d 633
    ,
    658 (7th Cir. 2015) (emphasis added) (holding plaintiff in civil RICO case
    plausibly alleged mail and wire fraud for purposes of Rule 12(b)(6); though
    company’s written communications might be literally true, they could be
    misleading where additional information was concealed or where the
    language in the written materials “could reasonably be understood as
    implying” something other than the disclosed information itself).
    25
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 26
    But this is misleading, Plaintiffs have pleaded, because Security Benefit
    failed to disclose the cumulatively negative effect—the “collective impact”—
    of the annuity products’ so-called “performance dampening features.” See
    Aplt. App. vol. 1 at 185 ¶ 89. The complaint also alleges Security Benefit
    failed to disclose how the volatility control overlay worked in practice to
    reduce participation rates. Plaintiffs detail how Security Benefit used
    backcasted historical data to create hypothetical illustrations projecting the
    proprietary indices’ future gains. However, this data—and the future
    returns the data projected—were misleading because, as Plaintiffs allege,
    Security Benefit used “cherry-picked” performance periods that exhibited
    non-representative gains for the proprietary indices. 
    Id.
     at 174 ¶ 64.
    According to Plaintiffs, Security Benefit also assumed a 100% participation
    rate over the backcasted period, which was misleading because it was
    impossible for 100% of the gain in the index to be credited to the annuity
    during that period.
    Plaintiffs also have alleged, as they must, the “injuries they suffered
    as a result” of Security Benefit’s fraudulent misrepresentations. George, 
    833 F.3d at 1256
    . For instance, Plaintiff Clinton purchased five Total Value
    Annuities for $100,000 each, then allocated all $500,000 of her investment
    to Security Benefit’s proprietary “BNP Paribas High Dividend Plus Annual
    Point to Point Index Account – Year 2” (“BNP Index”). She was credited at
    26
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 27
    the end of a two-year annuity period with 0.00% interest. She also lost the
    use of her $500,000 investment allocated to the BNP Index. Plaintiff Clinton
    suffered additional harm because her annuities were allegedly worth less
    than what she paid for them on the day they were issued to her. The
    complaint contains similar allegations about the harm sustained by the
    remaining Plaintiffs. Except for Plaintiff Rosen, who received 1.68%
    interest on his investment from the “Morgan Stanley Dynamic Allocation
    Index Account” (“Morgan Stanley Index”), all Plaintiffs received 0.00%
    interest at the end of their annuity periods for the investments they made
    in annuity products linked to the proprietary indices used by Security
    Benefit.
    Not all Plaintiffs’ allegations satisfy Rule 9(b), however. While the
    complaint specified with particularity when Security Benefit allegedly
    made misrepresentations in the Statements of Understanding, the same
    cannot be said of misrepresentations made in the marketing materials,
    except for one allegation regarding a sales illustration prepared for Plaintiff
    Webber on April 22, 2014. See Koch, 
    203 F.3d at 1237
     (determining alleged
    misrepresentations made “during 1982 and continuing to the present time”
    did not “alert the [d]efendants to a sufficiently precise time frame to satisfy
    Rule 9(b)”).
    27
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 28
    But, as we have previously recognized, not every allegation of
    fraudulent misconduct must be pleaded with particularity for a complaint
    to survive at the motion to dismiss stage. See George, 
    833 F.3d at 1257
    . In
    George, some allegations only “generally allege[d]” that one plaintiff
    “sometimes on specific dates, made phone calls to [a defendant], [and] spoke
    with unidentified [defendant] employees who made false representations to
    him via phone” and “through the mail.” 
    Id. at 1255
    . We concluded these
    “general allegations” did not suffice under Rule 9(b). 
    Id. at 1256
    . However,
    other allegations were sufficiently particular because, for instance, they
    identified a defendant’s employees “by name,” specified “the dates when
    those employees made allegedly false statements, identif[ied] the actions
    the plaintiffs took in reliance on those misrepresentations, [and] detail[ed]
    the injuries they suffered as a result.” 
    Id.
    Under those circumstances, we concluded that even where “not all of
    the plaintiffs’ allegations” are pleaded with particularity, 
    id. at 1255
    (emphasis added), a complaint may nonetheless satisfy Rule 9(b)’s
    requirements when its allegations are sufficiently particularized when
    “taken as a whole,” 
    id. at 1257
     (emphasis added) (citation omitted). So too
    here. George teaches that, in evaluating the particularity of fraud
    allegations under Rule 9(b), we must ask whether the complaint, taken as
    a whole, “sufficiently apprise[s]” the defendant of its involvement in the
    28
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 29
    alleged fraudulent conduct. 
    Id.
     (citation omitted); see also U.S. ex rel. Heath
    v. AT & T, Inc., 
    791 F.3d 112
    , 125 (D.C. Cir. 2015) (“Rule 9(b) does not
    inflexibly dictate adherence to a preordained checklist of ‘must have’
    allegations.”). Here, reviewing de novo, and reading the complaint in its
    entirety, we conclude that it does. Plaintiffs have satisfied Rule 9(b)’s
    requirements, and the district court erred in concluding otherwise.
    3. The district court also erred in dismissing the complaint for failing to
    allege facially plausible claims for relief.
    We next consider whether Plaintiffs have stated facially plausible
    fraud claims. See Iqbal, 
    556 U.S. at 678
    . Rule 9(b) needs to be read
    harmoniously with the rules of notice pleading. Although Plaintiffs’
    allegations are sufficiently particularized under Rule 9(b), the complaint
    must also include “factual content that allows the court to draw the
    reasonable inference that the defendant is liable for the misconduct
    alleged.” 
    Id.
     (citation omitted); see also Wright & Miller, 
    supra
     (“[O]ne
    cannot focus exclusively on the fact that Rule 9(b) requires particularity in
    pleading the circumstances of fraud without taking account . . . the
    strictures of plausibility pleading.”) (footnote omitted). Facial plausibility
    means the complaint must offer sufficient factual allegations “to raise a
    right to relief above the speculative level.” Twombly, 
    550 U.S. at 555
    ; see
    also Llacua v. W. Range Ass’n, 
    930 F.3d 1161
    , 1177 (10th Cir. 2019) (“The
    29
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 30
    question is whether, if the allegations are true, it is plausible and not
    merely possible that the plaintiff may obtain relief.” (citation omitted)).
    The district court determined the complaint “lack[ed] plausibility”
    because Plaintiffs failed to set forth “sufficient facts from which an
    inference of fraud can be drawn.” Aplt. App. vol. 8 at 1965. In making its
    determination, the district court focused primarily on four alleged
    misrepresentations and omissions:
     “[T]he annuities were ‘uncapped’ and had 100% participation”
    rates, id. at 1966;
     Security Benefit used “backcasting” to create “hypothetical
    illustrations projecting the performance” of the proprietary
    indices, id. at 1967;
     “[T]hat [Security Benefit] . . . ‘misleadingly suggest[ed] that the
    volatility control overlay ha[d] a symmetrical impact on
    performance’” of the proprietary indices “when it did not,” id.
    at 1969 (quoting Aplt. App. vol. 1 at 186 ¶ 92);
     Security Benefit failed “to disclose the composition of assets in
    the ALTV Index and BPHD [BNP] Index.” Id. at 1970.
    Plaintiffs argue the district court erred in its ultimate conclusion and
    engaged in a flawed analysis by considering only a handful of allegations in
    isolation, failing to account for—or understand—the gist of the alleged
    fraudulent scheme. Security Benefit insists the district court “thoroughly
    examined” the complaint and addressed in “painstaking detail” the four
    alleged misrepresentations and omissions “at the heart of the alleged
    fraudulent scheme.” Aplee. Br. at 27. Guided by a methodical application of
    30
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 31
    the standard of review, we agree with Plaintiffs. Accepting the well-pleaded
    facts alleged as true and viewing them in the light most favorable to
    Plaintiffs, we conclude the complaint’s particularized allegations plausibly
    allege Security Benefit engaged in a fraudulent scheme.
    “In order to bring a [civil] RICO claim, a plaintiff must allege a
    violation of 
    18 U.S.C. § 1962
    , which consists of four elements: ‘(1) conduct
    (2) of an enterprise (3) through a pattern (4) of racketeering activity.’”
    Gillmor v. Thomas, 
    490 F.3d 791
    , 797 (10th Cir. 2007) (quoting Sedima,
    S.P.R.L. v. Imrex Co., 
    473 U.S. 479
    , 496 (1985)). “To establish a pattern of
    racketeering activity, [Plaintiffs] must allege at least two predicate acts.”
    George, 
    833 F.3d at 1254
    ; accord Deck v. Engineered Laminates, 
    349 F.3d 1253
    , 1257 (10th Cir. 2003) (“A pattern of racketeering activity must include
    commission of at least two predicate acts.” (citation omitted)); see also Safe
    Streets All. v. Hickenlooper, 
    859 F.3d 865
    , 882 (10th Cir. 2017) (“The [civil
    RICO] statute defines ‘racketeering activity’ to encompass dozens of state
    and federal offenses, known in RICO parlance as predicates.” (citation
    omitted)). Recall that mail and wire fraud—the claims alleged here—are
    predicate racketeering activities under RICO. See 
    18 U.S.C. § 1961
    (1)(B);
    see also George, 
    833 F.3d at 1254
     (“As defined in 
    18 U.S.C. § 1961
    (1)(B),
    ‘racketeering activity’ includes indictable acts of mail and wire fraud as
    prohibited under 
    18 U.S.C. §§ 1341
     and 1343, respectively.”); Bridge v.
    31
    Appellate Case: 21-3035   Document: 010110833726    Date Filed: 03/28/2023   Page: 32
    Phoenix Bond & Indem. Co., 
    553 U.S. 639
    , 647 (2008) (“The term
    ‘racketeering activity’ is defined to include a host of so-called predicate acts,
    including ‘any act which is indictable under . . . section 1341 (relating to
    mail fraud).’” (alteration in original) (quoting § 1961(1)(B))); CGC Holding
    Co. v. Broad & Cassel, 
    773 F.3d 1076
    , 1088 (10th Cir. 2014) (“Section
    1961(1)(B) describes the qualifying ‘racketeering activities,’ or ‘predicate
    acts,’ which include wire fraud.”).
    To state a claim for mail and wire fraud, Plaintiffs must “plausibly
    allege ‘the existence of a scheme or artifice to defraud or obtain money or
    property by false pretenses, representations or promises.’” George, 
    833 F.3d at 1254
     (citation omitted); see also United States v. Zar, 
    790 F.3d 1036
    , 1050
    (10th Cir. 2015) (“[T]his court has recognized that the first two elements of
    the mail fraud statute and the wire fraud statute [a scheme and intent to
    defraud], §§ 1341 and 1343, are identical.” (citation omitted)).17
    17Here, Plaintiffs allege Security Benefit violated the federal mail and
    wire fraud statutes to “effectuate their scheme.” Aplt. App. vol. 1 at 208
    ¶ 163. In assessing Security Benefit’s alleged mail and wire fraud in the
    civil RICO context, we look to criminal law for general guidance in
    interpreting the elements of these predicate offenses. See, e.g., Bridge, 
    553 U.S. at 647
     (“The term ‘racketeering activity’ [in § 1962(c)] is defined to
    include a host of so-called predicate acts, including [mail fraud]. . . . The
    gravamen of the offense is the scheme to defraud, and any ‘mailing that is
    incident to an essential part of the scheme satisfies the mailing element.’”)
    (quoting Schmuck v. United States, 
    489 U.S. 705
    , 712 (1989)); see also
    Sorensen v. Polukoff, 
    784 F. App’x 572
    , 577 (10th Cir. 2019) (unpublished)
    (stating that in review of the dismissal of a civil RICO action “[t]he elements
    32
    Appellate Case: 21-3035    Document: 010110833726        Date Filed: 03/28/2023   Page: 33
    “[T]he central focus of the first element [of mail and wire fraud] is the
    existence of a scheme.” United States v. Kennedy, 
    64 F.3d 1465
    , 1475 (10th
    Cir. 1995) (citation omitted); see also United States v. Welch, 
    327 F.3d 1081
    ,
    1104 (10th Cir. 2003) (“The gist of [mail and wire fraud] is a scheme to
    defraud and the use of interstate communications to further that scheme.”
    (citation omitted)). “A ‘scheme or artifice to defraud’ ‘connotes a plan or
    pattern of conduct which is intended to or is reasonably calculated to
    deceive persons of ordinary prudence and comprehension.’” United States v.
    Hanson, 
    41 F.3d 580
    , 583 (10th Cir. 1994) (citation omitted); accord Welch,
    
    327 F.3d at 1106
    ; see also Zar, 
    790 F.3d at 1050
     (“[T]he first element of wire
    [and mail] fraud is a scheme to defraud and that element includes a scheme
    to   obtain   property    by   means      of   false   or   fraudulent    pretenses,
    representations, or promises . . . .”).
    “[I]ntent to defraud” under §§ 1341 and 1343, the second element of a
    mail and wire fraud scheme, may be established “by various means.” Welch,
    
    327 F.3d at 1106
    ; see also Carpenter v. United States, 
    484 U.S. 19
    , 27 (1987)
    (“Sections 1341 and 1343 reach any scheme to deprive another of money or
    of mail fraud under 
    18 U.S.C. § 1341
     are ‘(1) a scheme or artifice to defraud
    or obtain property by means of false or fraudulent pretenses,
    representations, or promises, (2) an intent to defraud, and (3) use of the
    mails to execute the scheme.’” (footnotes omitted) (quoting United States v.
    Zander, 
    794 F.3d 1220
    , 1226 (10th Cir. 2015))).
    33
    Appellate Case: 21-3035    Document: 010110833726   Date Filed: 03/28/2023   Page: 34
    property by means of false or fraudulent pretenses, representations, or
    promises.”). For instance, we have held that a scheme to defraud may
    involve the use of “material misrepresentations,” United States v. Schuler,
    
    458 F.3d 1148
    , 1153 (10th Cir. 2006), or “knowledge of a false statement,”
    United States v. Bailey, 
    327 F.3d 1131
    , 1140 (10th Cir. 2003); accord United
    States v. Kalu, 
    791 F.3d 1194
    , 1205 (10th Cir. 2015) (determining that
    “[i]ntent to defraud” under § 1341 “may be inferred from the defendant’s
    misrepresentations [or] knowledge of a false statement” (citations omitted)).
    Not every scheme to defraud will involve an affirmative falsehood. See
    United States v. Gallant, 
    537 F.3d 1202
    , 1228 (10th Cir. 2008) (“A scheme
    to   defraud   focuses    on   the   intended   end   result   and   affirmative
    misrepresentations are not essential . . . .” (citation omitted)); Kemp v. Am.
    Tel. & Tel. Co., 
    393 F.3d 1354
    , 1359 (11th Cir. 2004) (“[I]t is not necessary
    for a plaintiff to point to affirmative misstatements in order to establish the
    requisite fraudulent intent of a defendant under the mail and wire fraud
    statutes.” (citation omitted)); Kehr Packages, Inc. v. Fidelcor, Inc., 
    926 F.2d 1406
    , 1415 (3d Cir. 1991) (“The [mail fraud] scheme need not involve
    affirmative misrepresentation . . . .” (citation omitted)).
    “[A] misleading omission” also may establish the intent to defraud
    under the mail and wire fraud statutes. United States v. Cochran, 
    109 F.3d 660
    , 665 (10th Cir. 1997) (citation omitted); see also Gallant, 
    537 F.3d 34
    Appellate Case: 21-3035   Document: 010110833726    Date Filed: 03/28/2023   Page: 35
    at 1228 (“Fraudulent intent is required under the statute, and ‘deceitful
    concealment of material facts may constitute actual fraud.’” (citation
    omitted)). A fiduciary relationship between parties “can trigger a duty of
    disclosure as can some other relationship of trust and confidence between
    the parties,” and when such a relationship exists “certain people must
    always disclose facts where nondisclosure could result in harm.” Cochran,
    
    109 F.3d at 665
     (citations omitted). But “[e]ven apart from a fiduciary
    duty . . . ‘a misleading omission[] is actionable as fraud’” under the mail and
    wire fraud statutes “if it is intended to induce a false belief and resulting
    action to the advantage of the misleader and the disadvantage of the
    misled.” 
    Id.
     (second alteration in original) (citation omitted); see also United
    States v. Allen, 
    554 F.2d 398
    , 410 (10th Cir. 1977) (“While the existence of
    a fiduciary duty is relevant and an ingredient in some mail fraud
    prosecutions, it is not an essential in all such cases. . . . [F]raudulent
    representations . . . may be effected by deceitful statements of half-truths
    or the concealment of material facts . . . .” (footnote omitted) (citations
    omitted)).18
    18The dissent claims the majority “adopts unprecedented notions of
    fraud.” Dissent at 1. We see nothing threateningly novel about Plaintiffs’
    allegations.
    Plaintiffs claim Security Benefit committed both mail and wire fraud,
    which are predicate racketeering activities under RICO. “RICO is to be read
    35
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    Here, Plaintiffs claim reversal is required because the district court
    misconstrued the four misrepresentations and omissions it specifically
    analyzed and ignored other related allegations. See, e.g., Aplt. Br. at 46.
    Plaintiffs contend the complaint sufficiently pleads Security Benefit
    broadly. This is the lesson not only of Congress’ self-consciously expansive
    language and overall approach, but also of its express admonition that
    RICO is to ‘be liberally construed to effectuate its remedial purposes.’ The
    statute’s ‘remedial purposes’ are nowhere more evident than in the
    provision of a private action for those injured by racketeering activity.”
    Sedima, 
    473 U.S. at 497-98
     (quoting 
    Pub. L. 91-452, § 904
    (a), 
    84 Stat. 947
    );
    see also Safe Streets All., 
    859 F.3d at 881, 885
     (discussing RICO’s civil
    remedies and rejecting the notion of any “hidden . . . pleading
    requirement”).
    Plaintiffs allege Security Benefit, in its marketing materials and
    Statements of Understanding, materially misrepresented the “performance
    dampening features” of its annuity products and failed to disclose the
    collective impact of these features on Plaintiffs’ investments. A fraud claim
    is plausible under these circumstances. See Restatement (Second) of Torts
    § 529 (“A representation stating the truth so far as it goes but which the
    maker knows or believes to be materially misleading because of his failure
    to state additional or qualifying matter is a fraudulent representation.”);
    see also id. cmt. b (“Whether or not a partial disclosure of the facts is a
    fraudulent misrepresentation depends upon whether the person making the
    statement knows or believes that the undisclosed facts might affect the
    recipient’s conduct in the transaction at hand. It is immaterial that the
    defendant believes that the undisclosed facts would not affect the value of
    the bargain which he is offering.”); cf. Miller v. Thane Intern., Inc., 
    519 F.3d 879
    , 886 (9th Cir. 2008) (holding, in the securities fraud context of § 12(a)(2)
    of the Securities Act of 1933, that “statements literally true on their face
    may nonetheless be misleading when considered in context”); McMahan &
    Co. v. Wherehouse Ent., Inc., 
    900 F.2d 576
    , 579 (2d Cir. 1990) (recognizing,
    for purposes of disclosure requirements under the federal securities laws,
    “[s]ome statements, although literally accurate, can become, through their
    context and manner of presentation, devices which mislead investors”).
    36
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    induced Plaintiffs to purchase the annuity products through “materially
    false and misleading representations and half-truths.” Aplt. App. vol. 1
    at 159 ¶ 9. According to Plaintiffs, the complaint, when taken as a whole,
    plausibly alleges Security Benefit engaged in a scheme to defraud by
    materially misrepresenting the “performance dampening features” of its
    annuity products and failing to disclose the collective impact of these
    features on Plaintiffs’ investments. 
    Id.
     at 185 ¶ 89. We agree. The district
    court failed to consider the complaint as a whole, see Lemmon, 
    614 F.3d at 1173
    , and its analysis of the four misrepresentations and omissions in
    isolation   reveals     it    did   not   fully   account   for   Security   Benefit’s
    misrepresentations about the discrete features of the annuity products that,
    together, operated to reduce the proprietary indices’ performance. We now
    turn to the district court’s analysis of each allegation it considered and
    explain why the court erred.
    a. “Uncapped” Annuity Products & 100% Participation Rates
    The district court focused first on the alleged misrepresentations
    made by Security Benefit about the “uncapped” annuity products with 100%
    participation rates in the proprietary indices. Plaintiffs failed to allege the
    annuities were “capped,” the district court reasoned, so the complaint was
    “not clear on how” statements about the caps and 100% participation rates
    “are misleading.” Aplt. App. vol. 8 at 1966. But Plaintiffs never alleged that
    37
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    Security Benefit actually capped its annuity products because that was not
    the problem. Aplt. Br. at 49. Rather, it was Security Benefit’s use of
    “uncapped”     terminology      without    additional    disclosures    that    was
    misleading.
    Advertised claims that an annuity offers “uncapped” rates of return
    could falsely create inflated consumer expectations of future performance.
    Here, the complaint alleged that, when marketing the annuity products to
    Plaintiffs, Security Benefit never disclosed how the annuity products’
    features, such as the excess return reductions and annual spreads,
    functioned collectively in practice to reduce the proprietary indices’
    performance and limit returns. Security Benefit’s misrepresentations and
    omissions about the collective effect of the annuity products’ features—
    which operated in practice as caps and reduced the annuity products’
    participation rates—were “critical components” of Security Benefit’s
    fraudulent scheme. Id. at 45.
    For example, while Security Benefit noted that the ALTV Index was
    based on the Trader Vic Excess Return Index and included a single sentence
    in the BNP Index brochure explaining the BNP Index was an excess return
    index, Plaintiffs allege Security Benefit never explained what an
    excess-return index is (i.e., that it subtracts the risk-free rate of return from
    the   index   returns).    Therefore,     the   excess-return   deductions     were
    38
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    undisclosed deductions from the index returns. Any undisclosed deduction
    from index returns would render misleading a representation that the
    annuities were uncapped and had 100% participation rates. What the
    district court found lacking about Plaintiffs’ allegations reflected a
    misunderstanding of this aspect of Plaintiffs’ fraud claim.19
    The district court also determined judicially noticed documents
    contradicted the allegation that Security Benefit misrepresented the
    annuity products had a 100% participation rate. According to the district
    19The dissent seems to labor under a similar misunderstanding. At
    one point, the dissent poses several hypotheticals. One analogizes Security
    Benefit’s alleged activity to credit card marketing: “Is it fraudulent to tout
    a credit card as offering no monthly fee,” the dissent asks, “when the
    disclosed interest rate is higher than ordinary unless the credit-card
    company says that there is effectively a monthly fee because the higher
    interest rate similarly hurts the cardholder financially?” Dissent at 9.
    Respectfully, the dissent’s hypothetical is not this case. Perhaps
    somewhat more apposite would be the credit card company that “tout[s] a
    credit card as offering no monthly fee,” but fails to disclose what it might
    call a “maintenance fee” that will just so happen to be withdrawn from
    customer accounts twelve times each year.
    The dissent also asks whether a car seller is “liable for fraud for
    failing to say that [a car engine] effectively has [fuel-efficiency reducing]
    feature A because features B and C reduce the efficiency.” Dissent at 9.
    Again, we disagree that is the scenario here. More relevant might be
    the case of a car seller who provides the buyer certain favorable fuel
    economy numbers on the Monroney label but declines to mention those
    numbers might be inflated based on its own testing conditions and unlikely
    to be reproduced in the course of normal driving. Cf. In re Hyundai & Kia
    Fuel Econ. Litig., 
    926 F.3d 539
     (9th Cir. 2019) (en banc).
    39
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    court, a hypothetical sales illustration prepared for Plaintiff Webber and a
    Total Value Annuity Statement of Understanding expressly stated the
    annuity products were guaranteed never to go below a 50% participation
    rate and thus “belied” Plaintiffs’ allegations. Aplt. App. vol. 8 at 1966.20
    We discern no contradiction between the documents and the
    allegations.21 The complaint alleges Security Benefit marketed the annuity
    products as having a 100% participation rate in the proprietary indices.
    Plaintiffs further allege that Security Benefit did not disclose how effects of
    the annuity products’ features operated collectively to reduce the
    participation rate. This means that, notwithstanding what Security Benefit
    represented to Plaintiffs, the participation rate, in reality, could never be
    as high as 100%. That the judicially noticed documents promised the
    participation rate never would go below 50% is not inconsistent with
    Plaintiffs’ allegations that it was misleading for Security Benefit to suggest
    the participation rate ever could reach 100%. Accordingly, Plaintiffs have
    pleaded factual content to support the plausibility of the alleged fraudulent
    20 Security Benefit identifies similar language in other documents. For
    example, one Secure Income Annuity Statement of Understanding states
    “[t]he Current Participation Rate” for the Morgan Stanley Index “is 100%”
    but that Security Benefit may change the participation rate later. Aplt. App.
    vol. 7 at 1692.
    Nor, therefore, are we persuaded by the dissent’s treatment of the
    21
    same. See Dissent at 6.
    40
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    scheme,     including        that     Security       Benefit      made       “material
    misrepresentations,” Schuler, 
    458 F.3d at 1153
    , and concealed material
    facts, see Gallant, 
    537 F.3d at 1228
    , about the “uncapped” annuity products
    and their advertised 100% participation rate.
    b. Hypothetical Illustrations & Backcasting
    The district court next analyzed the allegations that Security Benefit
    misled Plaintiffs by using the hypothetical illustrations to project the
    proprietary indices’ potential performance. The complaint alleged these
    illustrations relied on backcasted performance data, enabling Security
    Benefit to project misleadingly high future investment returns. The district
    court concluded Plaintiffs’ allegations about backcasted data were
    implausible. This conclusion was erroneous, as we explain.
    First, the district court committed a legal error to the extent it faulted
    Plaintiffs for failing to identify a false statement in the hypothetical
    illustrations.   Recall,    a   fraudulent       scheme    requires      a   material
    misrepresentation, see Schuler, 
    458 F.3d at 1153
    , or the concealment of
    material   facts,   see    Gallant,   
    537 F.3d at 1228
    ,   but    “affirmative
    misrepresentations are not essential,” 
    id.
     (citation omitted). Here, the
    complaint alleges the hypothetical illustrations created a false impression
    because they were based on backcasted data that selected the proprietary
    indices’ performance periods “to correspond with years when the ind[ices’]
    41
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    asset components exhibited non-representative gains.” Aplt. App. vol. 1
    at 174 ¶ 64. The backcasted data did not derive from the assets’ entire
    performance period but was based only on select periods when the assets
    performed    particularly   well.   Plaintiffs   claim   depictions   of    future
    performance based on “imaginary,” backcasted performance data are
    misleading. Aplt. Br. at 51. The district court concluded Plaintiffs have done
    nothing more than simply assert the failure of the hypothetical
    illustrations’ projections to “materialize into actual returns” or “actually
    come to fruition.” Aplt. App. vol. 8 at 1968.22 We disagree. Plaintiffs have
    plausibly alleged Security Benefit’s hypothetical illustrations were based
    22The district court determined that market conditions could explain
    why the ALTV Index performed poorly. Plaintiffs argue that, in so
    concluding, the district court impermissibly drew an inference in favor of
    Security Benefit. Aplt. Br. at 56. We agree. Even if market conditions
    ultimately prove explanatory, inference drawing in favor of the defendant
    is not appropriate at the motion to dismiss stage. The complaint contains
    allegations explaining why and how Security Benefit designed its
    proprietary indices to produce near-zero returns. The district court should
    have accepted the truth of these facts, see Mayfield, 
    826 F.3d at 1255
    , rather
    than explained them away in Security Benefit’s favor. On appeal, Security
    Benefit again maintains that market conditions during the relevant period,
    not any fraudulent scheme, obviously explain why its proprietary indices
    performed poorly. See Aplee. Br. at 33-36. While courts may infer from a
    complaint’s factual content “obvious alternative explanation[s]” for the
    alleged misconduct, Iqbal, 
    556 U.S. at 682
    , we do not conclude, under the
    circumstances here, that generalized “market conditions” are such an
    obvious alternative explanation for the proprietary indices’ poor
    performance that Plaintiffs’ claims are implausible.
    42
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    on backcasted data that misled investors and induced the purchase of the
    annuity products.
    Notwithstanding the dissent’s contrary view, a non-representative
    backcasting period can be misleading. Recall, a new proprietary index, like
    those used by Security Benefit, will lack any historical performance. If the
    index’s creator and marketers want to advertise historical performance,
    they must work backward and calculate what the index’s hypothetical value
    would have been in the past—this is what Plaintiffs call backcasting. So an
    index will have a launch date, which is the date the index was actually
    created, but it may also have a backcast period of simulated historical
    performance before that launch date. An unscrupulous company that wants
    a lackluster index to have impressive simulated historical performance
    might choose a backcast period where the index performed particularly
    well. That the company might include the worst-performing years in such a
    backcast period does not remedy the problem that the backcast period as
    selected is unrepresentative.
    The ten worst-performing years of a period in which the index would
    have performed very well could still be better than the ten best-performing
    years of a period in which the index would have performed poorly. In other
    words, the company’s selection of a start and end point is responsible for
    the relative success of the index presented. An investor looking at these
    43
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    marketing materials would not know that the backcast period was
    unrepresentative because it is the only performance data available for the
    newly created index. When a newly created index is marketed based on a
    historically unrepresentative, cherry-picked period of performance, that
    marketing is misleading.
    Plaintiffs have plausibly alleged Security Benefit did just that. They
    alleged one of the proprietary indices had poor performance immediately
    after exiting the backcast period, which is a characteristic of backcast
    periods chosen to show abnormally high performance. Aplt. App. vol. 1
    at 176 ¶ 67 (ALTV Index declined in five years after plaintiff purchased it);
    
    id.
     at 181 ¶ 78) (post-backcast performance of the synthetic indices was near
    zero); see also Aplt. Br. at 22-23 (Citi Equities presentation used ALTV
    Index as an example of an index that underperformed immediately after
    exiting backcast period). And the Plaintiffs cited statistical analysis of the
    assets underlying the indices, which showed their expected returns were
    near zero and thus, the indices’ exceptional performance during the
    backcast period was unrepresentative. At trial, Plaintiff would need to
    present evidence to prove these claims—such as expert testimony or
    documentation     about   Security   Benefit’s   decisionmaking—but       these
    allegations will survive a motion to dismiss.
    44
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    Second, the district court concluded the complaint lacked “factual
    support” for Plaintiffs’ allegation that the hypothetical illustrations were
    based on time periods whose performance could not be reproduced. Aplt.
    App. vol. 8 at 1968. This is incorrect. The complaint contains multiple
    allegations describing Security Benefit’s “manipulative” backcasting
    practice. No more factual detail is needed at the motion to dismiss stage to
    conclude Plaintiffs have plausibly alleged facts supporting an inference of
    fraud.
    Third, the district court determined Plaintiffs’ allegations about
    Security Benefit’s misleading backcasted data were “at odds with the
    underlying theme of Plaintiffs’ case—that [Security Benefit] knew the
    [proprietary indices] would generate ‘near-zero returns.’” Id. at 1968
    (emphasis omitted). Again, we disagree. The complaint sufficiently alleges
    Security   Benefit      sold   annuity   products   based   on   the   misleading
    hypothetical illustrations, which induced consumers to buy products and
    allocate their premiums to the proprietary indices, even though Security
    Benefit knew their indices would produce near-zero returns.
    Finally, the district court concluded Plaintiff Webber’s Total Value
    Annuity sales illustration contradicted Plaintiffs’ allegations that investors
    were “given only projections of non-attainable gains” and that the
    hypothetical illustrations were based on “cherry-picked” time periods. Id.
    45
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    at 1969. For instance, the district court observed that Plaintiff Webber’s
    illustration is labeled “hypothetical,” id. (quoting Aplt. App. vol. 7 at 1745),
    and states “[t]he values in this illustration are not guarantees or even
    estimates of the amounts you can expect from your annuity,” id. (quoting
    Aplt. App. vol. 7 at 1747).
    Plaintiffs correctly contend the disclaimer in the hypothetical
    illustrations does not undermine the allegations that Security Benefit
    committed fraud.23 At the motion to dismiss stage, the disclaimers do not
    render implausible Plaintiffs’ claim that Security Benefit used misleading
    backcasted data to induce their purchase of the annuity products. See In re
    Flint Water Cases, 
    960 F.3d 303
    , 329 (6th Cir. 2020) (“For a document to
    contradict the complaint, it must ‘utterly discredit’ the allegations.”
    (citation omitted)).
    The district court also cited an excerpt from the sales illustration that
    used various ten-year periods to simulate investment changes in the ALTV
    Index. According to the district court, these simulations contradicted the
    complaint’s allegations that the hypothetical illustrations were based on
    23  Security Benefit identifies additional excerpts from Plaintiffs’
    signed Statements of Understanding—separate documents from the sales
    illustration the district court discussed—detailing Plaintiffs understood
    “that any [index] values shown are for explanatory purposes only and are
    not guaranteed.” E.g., Aplt. App. vol. 6 at 1473. These excerpts do not
    contradict the complaint’s allegations either.
    46
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    backcasted performance periods. Again, we disagree. The ten-year periods
    Security Benefit used to simulate changes in the ALTV Index occurred
    within the alleged backcast period. It is a reasonable inference that the
    simulations themselves are based on the allegedly misleading backcasted
    performance data. Under these circumstances, the district court erred in
    concluding the simulations contradicted Plaintiffs’ allegations that Security
    Benefit used selective historical periods in its marketing materials to
    misleadingly illustrate the proprietary indices’ unachievable future
    performance.
    The district court also pointed to the “Guaranteed Illustrated Values”
    chart in the marketing materials, which depicted a potential 0% interest
    rate for the ALTV Index. The district court concluded the chart in this
    hypothetical illustration contradicted Plaintiffs’ allegations, because the
    chart “represent[ed] . . . exactly what [Plaintiff Webber] claims to have
    earned.” Aplt. App. vol. 8 at 1969. The district court correctly described the
    content of the chart but erred in concluding it fails to support an inference
    of fraud. The “Guaranteed Illustrated Values” chart represents the
    Standard & Poor’s 500 would perform poorly relative to Security Benefit’s
    proprietary index. Plaintiffs allege Security Benefit induced consumers to
    “purchase the [annuity products] and direct their premium dollars to the
    [proprietary indices]” by using marketing materials that depicted the
    47
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    proprietary indices would generate returns “far exceeding the comparative
    performance of crediting options based on . . . indices like the [Standard &
    Poor’s] 500.” Aplt. App. vol. 1 at 173 ¶ 59. The “Guaranteed Illustrated
    Values” chart, therefore, does not contradict Plaintiffs’ allegations about
    Security Benefit’s use of misleading performance data to induce their
    purchase of the annuity products.24
    We conclude Plaintiffs have plausibly alleged Security Benefit
    engaged in a scheme to defraud by using misleading backcasted
    performance data in its marketing materials to induce the purchase of its
    annuity products.
    c. Volatility Control Overlay
    The district court next analyzed a single allegation about Plaintiffs’
    claim that Security Benefit misled investors by falsely suggesting the
    volatility control overlay had a “symmetrical impact” on an index’s
    increases and decreases in price. Aplt. App. vol. 8 at 1969. Plaintiffs
    challenge the district court’s singular focus, contending the court ignored
    24On appeal, Security Benefit identifies other disclosures in Plaintiff
    Webber’s hypothetical illustration that arguably contradict Plaintiffs’
    allegations—for example, the illustration’s mention of its current
    participation rate and annual spread. However, these are summaries of the
    ALTV Index’s current and guaranteed features at the time they were
    prepared for Plaintiff Webber. They do not contradict Plaintiffs’ allegations
    that Security Benefit used misleading backcasted data to depict
    unattainable future returns for the proprietary indices.
    48
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    other allegations about Security Benefit’s failure to disclose the cumulative,
    negative effects the volatility control overlay had on their investments.
    Plaintiffs’ argument is well taken.
    The first “problem” with Plaintiffs’ allegation, the district court
    concluded, was the ALTV Index Statement of Understanding “[did] not
    actually say that the volatility overlays have a ‘symmetrical impact.’” Aplt.
    App. vol. 8 at 1970 (emphasis added). But, as we have explained, what
    Plaintiffs must plead is a material misrepresentation, not a false statement.
    Plaintiffs have alleged the excerpt from the ALTV Index Statement of
    Understanding in the complaint “misleadingly suggests” the volatility
    control overlay had a symmetrical impact. Aplt. App. vol. 1 at 186 ¶ 92. The
    excerpt allegedly creates a false impression because the volatility control
    overlay actually adversely impacted positive gains and offered Plaintiffs no
    benefits when the index decreased in price. That the ALTV Index’s
    Statement of Understanding did not affirmatively state the volatility
    control overlay had a symmetrical impact is not a reason to conclude
    Plaintiffs’ fraud claim is implausible.
    The district court also determined the complaint “pleaded [no] facts
    to show that the volatility overlay did not operate as stated.” Aplt. App.
    vol. 8 at 1970. That is incorrect. The complaint sufficiently alleges Security
    Benefit failed to disclose the “operation, impact or import” of the volatility
    49
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    control overlay. Aplt. App. vol. 1 at 186 ¶ 90. Plaintiffs also alleged Security
    Benefit never disclosed the volatility control overlay effectively reduced the
    ALTV Index’s participation rate. The volatility control overlay also
    allegedly had a negative impact on the index cost spreads that Plaintiffs
    paid to Security Benefit.
    In support of affirmance, Security Benefit identifies an excerpt from
    the Statements of Understanding it contends “accurately disclosed” the
    volatility control overlay’s operation, impact, and import:
    The [ALTV Index] has a volatility control overlay that is
    adjusted daily based on recent historical volatility, so that more
    volatility generally leads to a reduced exposure to the TVI and
    less volatility generally leads to more exposure. The overlay
    may thus reduce or increase the potential positive change in the
    [ALTV Index] relative to the TVI and thus may lessen or
    increase the interest that will be credited to a fixed index
    annuity allocated to the [ALTV Index] relative to one allocated
    to the TVI (which is not available). The overlay also reduces the
    cost to hedge the interest crediting risk to [Security Benefit].
    Aplee Br. at 41 (quoting, e.g., Aplt. App. vol. 6 at 1475).
    This excerpt does not contradict the allegations that Security Benefit
    failed to disclose the “operation, impact or import” of the volatility control
    overlay on their investments. It simply states the volatility control overlay
    is adjusted daily and offers comparisons between two indices. As Plaintiffs
    reasonably argue, this disclosure does not address how the volatility control
    50
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    overlay affects the proprietary indices’ participation rates or costs
    associated with the annuity products.
    We conclude Plaintiffs have adequately alleged that Security Benefit
    made fraudulent misrepresentations regarding its volatility control overlay
    and this further supports the plausibility of the alleged fraudulent scheme.
    d. Disclosure of Asset Allocations
    The last “allegation of fraud” the district court considered was
    Security Benefit’s failure to “disclose the composition of assets” in the
    proprietary indices. Aplt. App. vol. 8 at 1970. Plaintiffs insist Security
    Benefit did not disclose the proprietary indices’ assets or the rules it used
    to change the assets over time. According to Plaintiffs, therefore, no
    consumer could understand the proprietary indices’ risks or potential
    returns. Plaintiffs acknowledge, however, that brochures provided to them
    about two proprietary indices actually disclosed their general categories of
    assets.
    The district court found that brochures for the proprietary indices
    explained the components of each index, and Security Benefit had no duty
    to disclose additional information about the asset allocations. At bottom,
    the district court saw no “misleading impressions or half-truths . . . that
    required additional disclosures about asset allocations.” 
    Id. at 1971
    . As to
    this allegation, we conclude the district court did not err.
    51
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    Security Benefit had no duty to disclose additional information about
    the asset allocations. Plaintiffs claim Security Benefit made two
    representations that give rise to a duty to disclose additional information.
    First, the proprietary indices allowed Plaintiffs to make money when other
    indices would not. Second, the volatility control overlay affected the
    proprietary indices. They argue these representations created a duty to
    disclose “all related material facts undermining the accuracy of its
    representations.” Aplt. Br. at 70. And that failing to do so made Security
    Benefit’s representations “partial . . . half-truths.” 
    Id.
    But Plaintiffs have not shown how the two alleged representations
    establish an intent to defraud regarding the asset allocations. Recall an
    omission may be fraudulent where a fiduciary relationship exists between
    parties, see Cochran, 
    109 F.3d at 665
    , but that “[e]ven apart from a fiduciary
    duty” a misleading omission is only actionable as fraud where “it is intended
    to induce a false belief and resulting action to the advantage of the
    misleader and the disadvantage of the misled,” 
    id.
     (citation omitted).
    Here, Plaintiffs have not shown how the two alleged representations
    they identify give rise to a duty to disclose additional information. Plaintiffs
    make no argument that their relationship with Security Benefit creates a
    duty to disclose. See 
    id.
     (“While a fiduciary relationship is not an essential
    element of a wire fraud [claim], it can trigger a duty of disclosure as can
    52
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    some other relationship of trust and confidence between the parties.”
    (citations omitted)). Moreover, Plaintiffs identify nothing about the two
    representations intended to induce a “false belief” about the proprietary
    indices’ asset allocations. Gallant, 
    537 F.3d at 1228
    . As the district court
    correctly determined, Plaintiffs have not shown Security Benefit had a duty
    to disclose more information about the asset classes.
    But we must examine the whole complaint, see Lemmon, 
    614 F.3d at 1173
    , and determine if Plaintiffs have plausibly alleged the “central
    focus,” Kennedy, 
    64 F.3d at 1475
    , of their wire and mail fraud claims: “[A]
    scheme or artifice to defraud or obtain money or property by false pretenses,
    representations or promises.” George, 
    833 F.3d at 1254
     (citation omitted).
    Plaintiffs have done so, and our conclusion is not disturbed because
    Plaintiffs’ allegations regarding asset composition are implausible. See also
    Kan. Penn Gaming, 
    656 F.3d at 1214
     (“[T]o withstand a motion to dismiss,
    a complaint must have enough allegations of fact, taken as true, ‘to state a
    claim to relief that is plausible on its face.’” (emphasis added) (quoting
    Twombly, 
    550 U.S. at 570
    )). Under the applicable standard of review, the
    complaint contains enough factual content to support Plaintiffs’ claim that
    Security Benefit made material misrepresentations and omissions about
    the collective operation of the annuity products’ features—including the
    proprietary indices’ participation rates, caps, volatility control overlays,
    53
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    and the hypothetical illustrations’ use of backcasted data—and their
    negative impact on Plaintiffs’ investments. Therefore, we conclude
    Plaintiffs have plausibly alleged “a plan or pattern of conduct which is
    intended to or is reasonably calculated to deceive,” Hanson, 
    41 F.3d at 583
    ,
    using material misrepresentations, Schuler, 
    458 F.3d at 1153
    , and the
    concealment of material facts, Gallant, 
    537 F.3d at 1228
    .
    Finally, Security Benefit recites a list of “common sense” explanations
    to undermine the plausibility of Plaintiffs’ fraud allegations; for example,
    that Security Benefit would have no reason to harm its reputation in the
    marketplace by designing and selling poorly performing annuity products.
    See Aplee. Br. at 30-33. We reject Security Benefit’s invitation, at this stage,
    to draw inferences in its favor.25
    25 We note that, like the district court, the dissent at times also relies
    on impermissible defense-favorable inferences or ventures beyond the
    record before us. Information not alleged in the complaint, presented to the
    district court, or argued on appeal is simply not fair game in our review
    under Rule 12(b)(6). For example, the dissent claims we misconceive of the
    function and mechanics of the volatility overlay and explains that, in
    certain hypothetical circumstances, the volatility overlay may in fact work
    as Security Benefit alleges. Dissent at 11-13. This is precisely the sort of
    information that is not before us at this stage but that might be revealed
    during discovery. Plaintiffs, not Security Benefit, “receive[] the benefit of
    imagination” at this stage. Twombly, 
    550 U.S. at 563
     (quoting Sanjuan v.
    Am. Bd. of Psychiatry & Neurology, Inc., 
    40 F.3d 247
    , 251 (7th Cir. 1994)).
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    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 55
    According to the dissent, our decision today “may stifle security
    markets,” Dissent at 1, and means “no marketer of investment products is
    safe,” Dissent at 5. The dissent sounds a false alarm. Well-settled pleading
    rules and precedents will block frivolous suits and weed out claims with no
    facial merit. Twombly, 
    550 U.S. at 570
    ; cf. Tellabs, Inc. v. Makor Issues &
    Rights, Ltd., 
    551 U.S. 308
    , 322 (2007) (describing the PSLRA’s “twin goals”
    to “curb frivolous, lawyer-driven litigation, while preserving investors’
    ability to recover on meritorious claims”). Were immunity from suit our
    priority, it might require closing the courthouse doors entirely.26 But our
    law does no such thing. Cf. Krupski v. Costa Crociere S.p.A., 
    560 U.S. 538
    ,
    550 (2010) (referring to the “preference expressed in the Federal Rules of
    Civil Procedure . . . for resolving disputes on their merits”); see also Woods,
    
    855 F.3d at 652
     (“Manifestly, the rule of Iqbal/Twombly was not intended
    to serve as a federal court door-closing mechanism for arguably weak cases,
    even assuming this case fits the description of ‘arguably weak.’”).
    When reviewing the district court’s decision to dismiss a complaint,
    we make no determination of the merits of Plaintiffs’ claims. See Twombly,
    
    550 U.S. at 556
    . “Rule 12(b)(6) motions to dismiss are not designed to weigh
    26 We must disagree with the dissent that Plaintiffs’ particularized,
    facially plausible complaint presents any “abuse of the courts.” Dissent at 3.
    And we certainly cannot endorse the dissent’s suggestion that the claims
    may be “fraudulent.” 
    Id.
    55
    Appellate Case: 21-3035   Document: 010110833726   Date Filed: 03/28/2023   Page: 56
    evidence or consider the truth or falsity of an adequately pled complaint.”
    Tal, 
    453 F.3d at 1266
    . We thus decline to join the dissent in conducting an
    inquiry beyond that allowed by the current procedural stage. According to
    the dissent, “[S]uch are the vagaries of the market that [the Plaintiffs]
    probably would not be complaining if they had acquired the ALTVI-linked
    investment to begin last year.” Dissent at 15. Unlike the dissent, we will
    not speculate about the parties’ litigation motives in reviewing the district
    court’s order on appeal. Rather, we must accept the well-pleaded facts
    alleged as true, viewing them in the light most favorable to Plaintiffs.
    Having done so, we hold that Plaintiffs’ complaint survives Security
    Benefit’s Rule 12(b)(6) motion to dismiss.
    III
    Conclusion
    The district court erred in dismissing Plaintiffs’ RICO claim and their
    state-law claims for lack of particularity and plausibility. We reverse and
    remand for further proceedings consistent with this opinion.
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    21-3035, Clinton v. Security Benefit
    HARTZ, J., dissenting.
    I respectfully dissent. The majority opinion errs factually and legally. It improperly
    accepts the truth of allegations in the complaint that are contradicted by the sales
    documents on which the complaint is founded. And it adopts unprecedented notions of
    fraud that may stifle securities markets.
    Regarding the factual error, I am well aware of the long-established proposition that
    on a motion to dismiss a complaint the court should accept as true all well-pleaded factual
    allegations in the complaint. But when the complaint describes the contents of a document,
    a court must reject an allegation that misstates the contents. As this court stated not long
    ago, “[A]lthough we accept all well-pleaded allegations as true and draw all reasonable
    inferences in favor of the plaintiff, if there is a conflict between the allegations in the
    complaint and the content of the attached exhibit, the exhibit controls.” Brokers’ Choice of
    Am., Inc. v. NBC Universal, Inc., 
    861 F.3d 1081
    , 1105 (10th Cir. 2017); see Farrell-Cooper
    Mining Co. v. U.S. Dep’t of Interior, 
    728 F.3d 1229
    , 1237 n.6 (10th Cir. 2013) (“Factual
    allegations that contradict a properly considered document are not well-pleaded facts that
    the court must accept as true.” (brackets, ellipsis, and internal quotation marks omitted));
    Jackson v. Alexander, 
    465 F.2d 1389
    , 1390 (10th Cir. 1972) (“[W]e need not accept as true
    . . . allegations of fact that are at variance with the express terms of an instrument attached
    to the complaint as an exhibit and made a part thereof.”); Droppleman v. Horsley, 
    372 F.2d 249
    , 250 (10th Cir. 1967) (When a complaint includes an attached exhibit, “[the exhibit’s]
    legal effect is to be determined by its terms rather than by the allegations of the pleader.”
    Appellate Case: 21-3035      Document: 010110833726           Date Filed: 03/28/2023      Page: 58
    (internal quotation marks omitted)); 5A Charles Alan Wright, Arthur R. Miller & A.
    Benjamin Spencer, Federal Practice and Procedure § 1327, at 300–01 (4th ed. 2018)
    (“[W]hen a disparity exists between the written instrument annexed to the pleadings and
    the allegations in the pleadings, the terms of the written instrument will control, particularly
    when it is the instrument being relied upon by the party who made it an exhibit.”).
    In this case Plaintiffs alleged they were defrauded by the sales documents provided
    by Security Benefit. Rather than accept specific allegations of the complaint as gospel,
    which appears to be the approach of the majority opinion, we can compare them to the
    contents of the sales documents and reject those that misstate the contents. Other courts of
    appeals have done so in similar contexts, affirming dismissals of complaints alleging fraud
    by examining the purportedly fraudulent documents. See, e.g., Paradise Wire & Cable
    Defined Benefit Pension Plan v. Weil, 
    918 F.3d 312
    , 318–19 (4th Cir. 2019) (in considering
    allegedly false and misleading merger proxy statement, the court “turn[ed] to the language
    of the Proxy [statement] which the [plaintiffs] incorporated into the amended complaint by
    reference” and determined that plaintiffs’ allegations of fraud were unfounded); City of
    Edinburgh Council v. Pfizer, Inc., 
    754 F.3d 159
    , 168–69 (3d Cir. 2014) (court’s “full
    reading” of the allegedly false or misleading press release revealed that plaintiffs’ account
    was “based on a selective reading of that document” and in fact “bolstered the District
    Court’s conclusion that it contained no false statements”); Kramer v. Time Warner Inc.,
    
    937 F.2d 767
    , 775 (2d Cir. 1991) (the offer to purchase, which was subject to judicial
    notice, “misrepresented neither the form nor the value of the Merger Consideration actually
    received,” contrary to the complaint’s characterization of the document); cf. Hampton v.
    Page 2
    Appellate Case: 21-3035      Document: 010110833726           Date Filed: 03/28/2023      Page: 59
    root9B Techs., Inc., 
    897 F.3d 1291
    , 1303 (10th Cir. 2018) (where third-party document
    relied upon to show that defendant’s statement was false did not say what plaintiffs’
    complaint alleged it did, “the district court was not obliged” to adopt plaintiffs’ allegation);
    Emps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 
    889 F.3d 1153
    , 1163 (10th Cir. 2018) (court
    rejected plaintiff’s characterization, which relied on “misleadingly extract[ing]” a single
    comment from the broader context in which the remark was made). To do so is not, in the
    words of the majority opinion, to “conjecture that Plaintiffs will be unable to prove their
    claims.” Maj. Op. at 19 n.12. It is to preclude the further abuse of the courts to pursue
    undisputably baseless (fraudulent?) claims. To use twenty-first century parlance governing
    review of motions to dismiss, allegations that contradict the documents on which they are
    based are not “plausible.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (internal quotation
    marks omitted).
    As for the legal error, the traditional test for whether a statement is fraudulent is
    whether the statement is false or omits matters that must be disclosed to avoid leaving a
    misleading impression. Under the majority opinion, however, even if there is nothing false
    or misleading about the descriptions in the sales documents of each restriction on the
    earnings paid to investors, the seller may be liable for the failure to disclose the cumulative
    impact of the restrictions. From this time forward, I presume, the portion of each prospectus
    that sets forth the risks of an investment will need to include an additional (and extensive)
    discussion of how bad things can be if all the risks materialize. It will not be enough to
    give an accurate description of the investment; the seller will need to include an analysis
    of whether, given the disclosed facts, the investment is a good one.
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    But this introduction is perhaps too abstract. I now turn to an analysis of the majority
    opinion’s specific rulings on the allegations of fraud in this case.
    I.      BACKCASTING
    One of Plaintiffs’ allegations accepted by the majority opinion is that Security
    Benefit’s backcasting was deceptive because the backcast period was cherry-picked. But
    the allegation is contradicted by the sales documents. To make this clear, some background
    is in order.
    Some of the investment products offered by Security Benefit used proprietary
    indices that had been recently created by other entities (such as Morgan Stanley, BNP
    Paribas, and the Royal Bank of Scotland) independent of Security Benefit. Security Benefit
    then created an investment product based on the index. Each index uses a proprietary
    formula to determine what particular mix of specific investments will be valued on any
    particular day. For example, a precious-metals index might be based on a mixture of the
    prices of gold and silver, with the ratio of the two metals determined by, say, that day’s
    15-year mortgage rate.
    Before putting money into an investment based on the index, an investor might well
    want to know how well that index has performed in the past, and for how long. One may,
    or may not, want to jump into an investment based on the price of gold if that price has
    gone steadily higher over the past year, or invest only if the price has performed well over
    five or 10 years. Apparently, for a newly created index one can apply the proprietary
    formula to determine how it would have performed in the past. For example, the sales
    documents indicate that Bloomberg made those computations for the prior 20 years for the
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    ALTVI, on which one of the Security Benefit products was based. This “backcasting” of
    the index was used in the sales materials of Security Benefit.
    The sales materials included spreadsheets showing how well the purchaser’s
    investment would perform in the next 20 years based on the backcast performance of the
    investment. Plaintiffs’ complaint alleges that Security Benefit cherry-picked the
    backcasting to encourage investment in an index by illustrating above-market gains by the
    index for a particular backcast period. If that were the only period used in the Security
    Benefit materials, the complaint would have a point. But what Security Benefit actually
    did was look at the backcast results for the prior 20 years and then provide four projections
    of how the buyer’s investment in the associated Security Benefit product would fare over
    the next 20 years. One projection, the one about which Plaintiffs complain, is based on the
    backcast results for the best performing 10-year period within the prior 20 years (the sales
    materials state that this period for the ALTVI index was from March 1994 to March 2004).
    But the sales materials also include illustrations based on the backcast results for the worst
    performing 10-year period, the median performing 10-year period, and the most recent 10-
    year period (December 2003 to December 2013). If that is improper cherry-picking, then
    no marketer of investment products is safe. The cherry-picking allegation in the complaint
    is utterly discredited by the documents underlying the complaint.
    One may question the value of backcasting. As investors are told in every
    prospectus, past performance is no guarantee of future results. If, as some theorists propose,
    markets perform randomly, so stock picking (and therefore index picking) is a waste of
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    time and effort, then perhaps one should pay no attention to backcast performance. But that
    is a distinct issue from whether particular backcasting is fraudulent.
    II.    PARTICIPATION RATES AND CAPS
    The majority opinion also endorses the complaint’s allegation that Security Benefit
    was deceptive in stating that its investment products are not capped and have a 100%
    participation rate. There are at least two significant problems with this allegation. First,
    Plaintiffs have not, and could not, point to anywhere in the sales documents provided to
    them before they invested where Security Benefit makes the alleged claims. The sales
    documents do not describe any investment product as uncapped, having no cap, or the like.
    Nor do they promise that the investment product will always have a 100% participation
    rate. On the contrary, the illustrations provided by Security Benefit described 100% as the
    “current” participation rate, a number which could be “change[d]. . . at any time” before
    the signing of the contract, but which once set at the beginning of an Index Term (the period
    during which the investor cannot transfer out of the index account and at the end of which
    the value is computed and credited to the investor), would be the same for the entirety of
    that term. Aplts. App., Vol. VII at 1746. The only guarantee for future Index Terms was
    that the rate would not go below 50%. And if the participation rate was set to drop during
    the next Index Term, the investor could switch to a different investment product. In any
    event, it was 100% during the entire period of the alleged fraud.
    To circumvent this factual problem, Plaintiffs create another—by changing the
    definitions of cap and participation rate. Each term is a term of art related to how the
    performance of the selected index is translated into the performance of the associated
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    Security Benefit investment product. If there is a cap on the investment product, then no
    matter how well the index performs, the earnings of the investment product will not exceed
    the cap. If there is a 7% cap on the product and the index increases in value by 10%, the
    product will increase in value by only 7%. If the product has a participation rate, say 90%,
    then the increase in value of the product is only 90% of the increase in the value of the
    associated index. Thus, if the index increases in value by 10%, the product will increase in
    value by only 9%.
    The records of Plaintiffs’ investments show that their returns were never adjusted
    by a cap or by a participation rate below 100%. Indeed, Plaintiffs do not allege the contrary.
    One would think that that would end the matter. But Plaintiffs present a theory, endorsed
    by the majority opinion, that even though Security Benefit did not impose a cap and
    provided 100% participation rates, it limited gains on Plaintiffs’ investments in other ways
    that had the “effect” of caps or lower participation rates. And, say Plaintiffs, even if those
    limitations were adequately described in the marketing documents (whether they were
    adequately described is a separate matter1), Plaintiffs should have been advised that these
    limitations effectively acted as caps or lower participation rates.
    This endorsement by the majority opinion was in error. Although the other
    limitations imposed on the investment products reduced the return on those investments,
    1
    I find it interesting that while Plaintiffs claim that Security Benefit did not disclose
    the cumulative effect of the limitations, their analysis of that cumulative effect is based on
    the disclosures in the sales documents regarding each of the limitations. One might infer
    that Plaintiffs believe that the disclosures of the individual limitations were accurate.
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    just as caps and lower participation rates would reduce the return, those limitations were
    not simply caps or lower participation rates by another name. Security Benefit was not, and
    is not accused of, playing a semantic game in which it says it has no caps but does have
    what it calls “crowns” that set an upper limit on returns. The other limitations are based on
    different parameters and work in different ways. The volatility adjustment, for example,
    turns on how much the value of the index varies from day to day. Its effect on the
    investment return is essentially independent of whether the return on the investment is
    approaching the maximum allowed under a cap, and it does not set a limit on what the
    investment return can be.
    Plaintiffs’ theory amounts to the proposition that one who markets an investment
    cannot say that it does not impose certain limits on returns that are commonly imposed on
    similar products unless it also says that other, quite distinct, limits it does impose (and
    discloses) effectively amount to one of those commonly imposed limits because they, too,
    reduce the potential return. This is quite an innovative theory. And the boundaries of its
    application are not at all apparent. The possibilities are endless. Say, there are three main
    engine features that can reduce the mileage efficiency of a motor vehicle: A, B, and C. The
    seller tells you about features B and C and announces pridefully that the vehicle you are
    looking at does not have feature A. Is the seller liable for fraud for failing to say that the
    engine effectively has feature A because features B and C reduce the efficiency? What is
    the difference between that marketing of the motor vehicle and the marketing of an
    investment product that accurately describes all the imposed expenses but also announces
    that a common expense is not imposed? Is it fraudulent to tout a credit card as offering no
    Page 8
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    monthly fee when the disclosed interest rate is higher than ordinary unless the credit-card
    company says that there is effectively a monthly fee because the higher interest rate
    similarly hurts the cardholder financially? Plaintiffs’ “effectively” theory should be a
    nonstarter.
    Further, I think it dispositive that Plaintiffs rely solely on the sales documents as the
    basis for their assertions of fraud in Security Benefit’s failure to disclose how various
    features of Security Benefit’s investment products combine to reduce returns on those
    products. Every allegedly negative feature is described in those documents. Plaintiffs’
    “contribution” is simply to analyze what is described and conclude (after a few years of
    poor results) that they made poor investments. Unlike the colorable claims of fraud of
    which I am aware, the complaint points to no undisclosed factual information to support
    the claim that Plaintiffs were deceived.
    III.   VOLATILITY CONTROL OVERLAY
    The volatility control overlay is a feature of the ALTVI itself; it is not something
    used to translate the performance of that index to the performance of the associated Security
    Benefit investment product. It is used to translate the daily change in value of the
    underlying TVI to the change in value of the ALTVI. When the TVI price is volatile, the
    change (up or down) in the TVI is reduced in computing the ALTVI. When the TVI price
    is not volatile, the change in the ALTVI price may be greater than the change in the TVI
    price. One paragraph of the sales documents describes the volatility control overlay as
    follows:
    Page 9
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    The ALTVI has a volatility control overlay that is adjusted daily based on
    recent historical volatility, so that more volatility generally leads to reduced
    exposure to the TVI and less volatility generally leads to more exposure. The
    overlay may thus reduce or increase the potential positive change in the
    ALTVI relative to the TVI and thus may lessen or increase the interest that
    will be credited to a fixed index annuity allocated to the ALTVI relative to
    one allocated to the TVI (which is not available). The overlay also reduces
    the cost to hedge the interest crediting risk to [Security Benefit].
    Aplts. App., Vol. VI at 1475 (footnote omitted). Another paragraph states that “[t]he
    volatility control overlay reduces the impact of a falling price as well as increases in the
    price of the TVI.” 
    Id.,
     Vol. VII at 1660.
    The complaint alleges that the description of the ALTVI is deceptive because it
    suggests that the overlay acts symmetrically with respect to increases and decreases in the
    ALTVI. But the paragraph does not say anything about symmetry. Indeed, in a separate
    paragraph of the sales documents it says that the overlay in itself can be expected to reduce
    returns on the investment. See id. at 1762 (“The volatility overlay . . . is also expected to
    reduce the potential positive change in the [ALTVI] and thus the amount of interest that
    will be credited to a fixed index annuity that is allocated to the [ALTVI].”)
    Nevertheless, the majority opinion endorses the deceptiveness claim on a different
    ground, stating that the volatility control overlay acts only to reduce the return on the
    Security Benefit investment product based on the ALTVI; in other words, it can never
    increase the return. It reaches this conclusion from the observation that the investment
    product guarantees that the investor will not suffer a loss in value of the investment. That
    conclusion is based on a misunderstanding of how the overlay and the guarantee work. The
    overlay is a daily adjustment used to compute the ALTVI from the TVI, while the guarantee
    Page 10
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    comes into play only at the end of the five-year investment term for the ALTVI-linked
    product (other products have shorter investment terms). A brief explanation may be useful.
    What the guarantee says is that the investor will get at least all the original
    investment (say, $5000) back at the end of the five-year investment term. During those five
    years the value of the investment product will almost certainly go up and down. At one
    point the $5000 investment product may be valued at $6000. If the value drops to $5900
    the next day, the guarantee does nothing. After all, the investment product is still worth
    more than the original investment. What if the value of the investment product drops the
    next day to $4900? Again, the guarantee does nothing. In particular, it does not revise the
    value upward to $5000. This is because the value of the investment product could still go
    up (and exceed $5000) by the end of the investment term. All the guarantee cares about is
    the value at the end of the five-year term. If the value on that date is $4900, the guarantee
    requires Security Benefit to pay the investor $5000.
    In contrast, the volatility overlay applies on a daily basis. If the TVI has been
    volatile, the amount of the change in the ALTVI that day is reduced. For example, if the
    volatility has been sufficiently high, the overlay may reduce the change in the value of the
    ALTVI to only 50% of the change in the TVI. The 50% figure applies whether the index
    went up or down. If the TVI goes up (or down) 1%, the ALTVI will go up (or down) .5%.
    Also, if the TVI has not been volatile, the volatility overlay may increase the amount of the
    change in the value of ALTVI by more than the change in the value of the TVI. The change
    (up or down) in the value of the ALTVI may be as much as 150% of the change in the
    value of the TVI. (If volatility is high, the change in the value of the ALTVI may be only
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    10% of the change in the TVI. The sales documents state that the historical average of the
    overlay as of December 31, 2013, was 95.8%.)
    Thus, the volatility overlay may increase the return to the investor in two different
    ways. First, if the volatility is low and the TVI is rising, the percentage increase in the value
    of the ALTVI will be greater than the percentage increase in the value of the TVI. The TVI
    may go up 5%, but the ALTVI goes up 6%. Second, if the volatility is high and the TVI is
    dropping, the percentage decline in the value of the ALTVI will be less than the decline in
    the TVI. If the TVI is volatile and drops by 1% during the day, the value of the ALTVI
    may drop by only .5 %. Because of this reduced loss, the ultimate value of the investment
    product based on the ALTVI is likely to be greater than it would be otherwise. Say, the
    value of the ALTVI is $6000 and the TVI declines by $100. Because of the overlay, the
    value of the ALTVI drops by only, say, $70, leaving it at $5930. If the value of the ALTVI
    remains steady until the end of the five-year investment term, it will be worth $30 more
    than if there had been no overlay. The no-loss guarantee, in contrast, would have no effect
    with regard to the one-day drop; if the value of the investment exceeds $5000 at the end of
    the five-year term, the guarantee does not add anything to the value.2
    I see nothing deceptive in the description of the volatility control overlay in the sales
    documents. I may be missing something. But I can say with some confidence that the theory
    2
    The majority opinion says that this analysis of the volatility overlay “is precisely
    the sort of information that is not before us at this stage but that might be revealed during
    discovery.” Maj. Op. at 54 n.25. But the analysis is based entirely on disclosures in the
    allegedly fraudulent sales documents.
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    of deception alleged in the complaint, and endorsed by the majority opinion, is based on a
    misconception of the investment product.
    IV. THE EXCESS-RETURN FEATURE
    The remaining claim of deception is that the sales documents did not explain what
    they meant when stating that indices on which Security Benefit based its investment
    products were excess-return indices. To endorse this claim would wreak havoc. What was
    the deception? Excess return is not some arcane term known only by the cognoscenti.
    Plaintiffs have not suggested that it had a special meaning confined to the Security Benefit
    sales documents. It was even defined where the documents described the MSDA index.
    See Aplts. App., Vol. VII at 1731 (“The Index is calculated on an excess return basis over
    an equivalent cash investment, which means that the Index level reflects the deduction of
    the Federal Funds interest rate that would apply to such a cash investment.”). Perhaps sales
    documents should contain a glossary of terms with special meaning in the documents; but
    there is no reason to define terms that have well-known meanings in the context.
    V. CONCLUSION
    Everyone who markets an investment hopes that others will think it will be
    profitable. Sometimes it does not turn out that way. A bad result does not imply fraud by
    the seller. See Olkey v. Hyperion 1999 Term Tr., Inc., 
    98 F.3d 2
    , 8 (2d Cir. 1996) (“Not
    every bad investment is the product of misrepresentation.”). Here, Plaintiffs assert, without
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    Appellate Case: 21-3035      Document: 010110833726          Date Filed: 03/28/2023     Page: 70
    any supporting analysis or explanation,3 that there is no way that their investments could
    have turned out well. See, e.g., Aplts. App., Vol I at 157 (“[T]he Synthetic Indices would—
    by design—produce near-zero returns.”); id. at 180 (“[T]he Synthetic Indices are designed
    and administered to generate near-zero returns.”); id. at 185 (“[T]he collection of
    commodities comprising the ALTV Index . . . have an expected near-zero return.”); Aplts.
    Br. at 4 (“[Security Benefit] knew the extraordinarily complicated Annuities and
    Proprietary Indices were in fact destined to produce near‐zero or below‐market returns to
    annuity owners.”). But such are the vagaries of the market that they probably would not be
    complaining if they had acquired the ALTVI-linked investment to begin last year.4 Courts
    3
    The majority opinion states that “Plaintiffs cited statistical analysis of the assets
    underlying the indices, which showed their expected returns were near zero.” Maj. Op.
    at 44. What the complaint alleges, in its entirety, is “standard economic models using
    recognized statistical methods (such as the Monte Carlo analysis) demonstrate that the
    expected returns for the assets underlying the Synthetic Indices are nearly zero once the
    spreads and costs of the Secure Income and Total Value Annuities are taken into account.”
    Aplts. App., Vol. I at 179. The complaint provides no citation to any study, making it
    impossible to determine whether there was any particular analysis of the investments by
    the Plaintiffs, or whether they are just studies saying generally that investors cannot beat
    the market. Such a conclusory assertion is entitled to no weight in assessing the validity of
    the complaint.
    4
    During 2022, while the S&P 500 dropped in value by 20%, the ALTVI went up
    4%:
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    Appellate Case: 21-3035    Document: 010110833726       Date Filed: 03/28/2023   Page: 71
    should eschew assuming the role of becoming the final backstop to protect disappointed
    investors.
    Annuity Linked TVI Index (USD), MerQube, https://merqube.com/index/NWSALTVI (last
    visited Jan. 3, 2023).
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