Securities and Exchange Commission v. Morgan Keegan & Company, Inc. ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 2, 2012
No. 11-13992
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:09-cv-01965-WSD
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellant,
versus
MORGAN KEEGAN & COMPANY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 2, 2012)
Before BARKETT and HULL, Circuit Judges, and HINKLE,* District Judge.
PER CURIAM:
In this civil enforcement action, the Securities and Exchange Commission
(“SEC”) sued Defendant Morgan Keegan & Co. (“Morgan Keegan”) for violating
§§ 10(b) and 15(c)(1) of the Exchange Act, § 17(a) of the Securities Act, and SEC
Rule 10b-5. The SEC alleges that, in the critical time period of late 2007 and early
2008, Morgan Keegan’s brokers (1) misrepresented that auction rate securities
(“ARS”) were safe cash-equivalents with no liquidity risk and (2) despite myriad
auction failures and significant trouble in the ARS market, continued to
recommend ARS as short-term, liquid investments and failed to disclose the
known liquidity risk. The district court granted summary judgment to Morgan
Keegan. After review and with the benefit of oral argument, we vacate and
remand for further proceedings.
I. FACTUAL BACKGROUND
Defendant Morgan Keegan is an investment firm with more than 1,200
brokers and 300 offices throughout the southeast. The firm offers financial
products and services, such as securities brokerage, asset management, financial
*
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
2
planning, mutual funds, securities underwriting, sales and trading, and investment
advice. Morgan Keegan participated in the ARS market by underwriting and
selling ARS that were AAA-rated, issued by municipalities, and tax exempt.
Morgan Keegan underwrote approximately $1.1 billion of ARS. Morgan Keegan
also sold ARS underwritten by other firms. This action centers on Morgan
Keegan’s sales of ARS.
A. Auction Rate Securities
In the early 1980s, ARS were first offered for sale in the United States.
ARS were generally issued as municipal bonds, corporate bonds, or preferred
stock. By the beginning of 2008, there were approximately $330 billion of
outstanding ARS.
ARS typically have long-term maturities, or no maturity at all. Yet, ARS
were conceived as highly liquid investments designed to serve as an equivalent to
money-market funds and are structured for short-term holding periods.
ARS have a floating interest rate (or dividend) that resets periodically. The
interest rate (or dividend) for an issuance of ARS is reset through a “Dutch
auction” that occurs every 7, 28, or 35 days, depending on the governing
documents. In a Dutch auction, investors purchase and sell the securities at par
value, typically $25,000 per share. In advance of an auction, a potential investor
3
submits a bid (or “buy order”) to the managing broker–dealer (typically the
underwriter of the issuance), specifying the number of ARS shares the investor
wants to purchase and the minimum interest rate the investor will accept. Existing
holders of ARS can submit “sell orders” to sell a specified number of shares at a
certain interest rate, or “hold orders” to hold a specified number of shares.
An auction succeeds, or “clears,” if investors submit enough “buy orders” to
cover the “sell orders.” In a successful auction, the “clearing rate” is the lowest
interest rate that will cover all the “buy orders.” The clearing rate applies to each
buy order that is accepted, regardless of whether the buyer was willing to accept a
lower rate.
An auction fails if there are insufficient buy orders to purchase all of the
shares offered for sale. If an auction fails, the ARS interest rate resets to the
“maximum rate” until the next auction, and all of the current holders continue to
hold the securities, with minor exceptions. The maximum rate is usually either a
fixed rate or a floating rate, depending on the governing documents. Although an
auction failure means that the ARS investment is illiquid, the holder continues to
receive interest payments at the maximum rate, which is intended to compensate
the holder for the loss of liquidity until the next successful auction. In other
words, even if an auction fails, the issuer must continue to make all interest
4
payments due to holders of the ARS.
Underwriters of ARS, such as Morgan Keegan, historically prevented
auction failure by placing “supporting” bids to purchase, for their own accounts,
the excess securities offered for sale. The underwriter then would typically hold
these securities in its own inventory. Morgan Keegan, either as buyer or seller,
submitted orders in auctions for its own account to help ensure the liquidity of its
customers’ ARS.
B. 2008 Collapse of the ARS Market
Historically, ARS auctions rarely failed, and the ARS market was a
relatively safe and liquid market. Beginning in the second half of 2007, however,
ARS auctions began to fail. In a November 2007 email, the head of Morgan
Keegan’s short-term products desk commented, “We are in a credit crunch & it
will get worse before it gets better. . . Wall Street can’t carry anymore [ARS]
paper.”
In early February 2008, auctions failed at increasing rates, restricting the
ability of investors to liquidate their ARS and access their funds. This increased
auction failure resulted from most ARS underwriters, other than Morgan Keegan,
ceasing to place supporting bids. On February 8, 2008, the first auction co-
brokered by Morgan Keegan failed. In an email sent that day, Frank Phillips,
5
Morgan Keegan’s head of retail trading, stated that Morgan Keegan had
suspended all buying of ARS from dealers other than Morgan Keegan. On
February 9, 2008, Phillips sent an email to Kevin Giddis, the head of Morgan
Keegan’s retail fixed income trading desk, expressing concern about ARS auction
failures and brokers’ misunderstandings of ARS:
The [ARS auction] fail[ures] have potential to kill consumer
confidence and could cause a panic to sell based on fear of losing
liquidity. If this scenario of yelling fire in a crow[ded] room plays out,
then other types of auction rate securities will begin to fail and I fear,
will show that a lot of brokers have misrepresented [the] product to their
clients.
Being that I trade the auction rates, I know a lot of brokers do not
understand the product fully and do not know what a failed auction
means. If the broker doesn’t understand what a failed auction is, do you
think the customer does? Unfortunately, I don’t think so.
By February 12, 2008, there were approximately 100 failures in auctions in which
Morgan Keegan played some participating role (although not as lead manager).
On February 13, 2008, many major ARS underwriters stopped supporting
auctions, and auctions failed on a widespread basis. On February 15, 2008, Giddis
sent Morgan Keegan’s brokers an email titled “AUCTION-RATE UPDATE-
PLEASE READ.” The email included an attachment describing the state of the
ARS market and states, “Share the information with your customer but please
don’t send out.” Marked for internal use only, the attachment describes the ARS
market issues as “liquidity-driven” rather than “credit-driven,” and includes
6
background information about what happens when an auction fails. In a section
titled “Advice to Investors and Financial Advisors,” the attachment states that “the
credit quality of the auction rate market remains strong” and that no investor has
lost principal on a deal in which Morgan Keegan was involved. The attachment
further advises brokers to avoid the “impulse” to sell their customers’ ARS:
We stress the importance of ignoring the impulse to “test” the process
by selling your clients’ ARS holdings in a wholesale manner simply
because you or your clients might be worried you will not be able to sell
them; we maintain our commitment to supporting the ARS market to the
extent possible, but this is only possible with your cooperation.
Remember, your clients are being well-compensated for holding their
ARS positions and the liquidity concerns should eventually sort
themselves out.
Morgan Keegan continued to support auctions by buying ARS for its own
account and thereby provided liquidity for its ARS customers. As a result,
Morgan Keegan’s ARS inventory increased from $18 million to $54 million by
February 8, 2008, to $133 million by February 15, 2008, to $179 million by
February 21, 2008. On February 22, 2008, Giddis again emailed Morgan
Keegan’s brokers and noted that some auctions were still succeeding and that none
of the auctions for which Morgan Keegan was the lead manager had failed.
On February 27, 2008, Morgan Keegan elected to cap its ARS inventory at
$182 to 185 million. After reaching the inventory cap, Morgan Keegan stopped
purchasing ARS for its own account. On February 28, 2008, the first Morgan
7
Keegan-managed auction failed. As a result of the 2008 market collapse, Morgan
Keegan’s ARS customers could not sell their securities through the auction
process or liquidate their investments.1 In the end and as of March 20, 2008,
Morgan Keegan’s customers were left holding approximately $2.2 billion of ARS,
including approximately $1.1 billion of ARS underwritten by Morgan Keegan.2
C. 2006 SEC Investigation of Morgan Keegan’s Intervention in ARS Auctions
In 2006 (prior to this 2009 action), the SEC investigated the ARS
underwriting and auction procedures of Morgan Keegan and other broker–dealers.
Ultimately, the SEC issued a May 31, 2006 cease-and-desist order against Morgan
Keegan and several other broker–dealers. See In re Bear, Stearns & Co., et al.,
Securities Act Release No. 8684, Exchange Act Release No. 53888, 88 SEC
Docket 259 (May 31, 2006).
The SEC charged each of the broker–dealers, including Morgan Keegan,
with violating § 17(a)(2) of the Securities Act by engaging in improper ARS
auction practices. In settling the SEC’s administrative charges, the broker–dealers
1
The auction failures did not affect customers’ receipt of interest and principal payments
as scheduled. Further, the ARS market did not completely dry up because some investors were
willing to sacrifice liquidity for the higher interest payments—the maximum rate—resulting from
the auction failures.
2
The complaint alleges that, as of July 15, 2009, Morgan Keegan customers held about
$272 million of illiquid ARS, approximately $50 million of which was underwritten by Morgan
Keegan.
8
consented to the issuance of a cease-and-desist order, censure, and payment of a
civil fine.
The May 31, 2006 cease-and-desist order states that the broker–dealers, or
at least some of them, committed the following “violative practices”:
(1) completing “open” or “market” bids, which allowed the broker–dealer to
designate some of the bid’s parameters and which advantaged the investors
submitting open or market bids by displacing other investors’ bids; (2) without
proper disclosure, intervening in auctions to prevent failed auctions or to set a
market rate; (3) prioritizing certain customers’ bids to increase the likelihood that
those bids would be filled; (4) submitting or revising bids after auction deadlines;
(5) improperly allocating ARS to investors who bid at the clearing rate instead of
allocating them pro rata, as stated in the disclosure documents; (6) in
oversubscribed auctions, not requiring certain customers to purchase the pro rata
share of ARS for which they had bid, even though the bids were supposed to be
irrevocable, (7) providing certain customers with returns above the auction
clearing rate based on “an express or tacit understanding reached prior to or during
an auction”; and (8) providing different “price talk” to certain investors, giving
those investors an advantage in determining what rate to bid. Id. at 5-6. In a
footnote, the SEC specifically noted that it was not prohibiting broker–dealers
9
from bidding for their own accounts if proper disclosures were made.
In the cease-and-desist order, each broker–dealer agreed to provide all of its
current ARS customers and the ARS issuers “with a written description of the
[broker–dealer’s] material auction practices and procedures.” Id. at 8.
Additionally, each broker–dealer agreed to provide all first-time ARS purchasers
with a written description of the broker–dealer’s “material auction practices and
procedures.” Id.
The cease-and-desist order allows a broker–dealer to fulfill this notice
requirement as to first-time ARS purchasers “by including a written notification
with the trade confirmation, that a written description of the [broker–dealer’s]
material auction practices and procedures is available on a specified web page of
the [broker–dealer’s] website accessible” to those first-time purchasers. Id.
(emphasis added). This written notification with the trade confirmation (1) “must
be set forth prominently in such a manner as to call it to the attention of the
reader” and (2) must state that a written description of the broker–dealer’s
“material auction practices and procedures” will be sent to the purchaser upon
request. Id.
D. Trade Confirmations Sent to ARS Purchasers
Each Morgan Keegan customer who purchased ARS received a trade
10
confirmation after purchasing ARS. The trade confirmations primarily provide
information about each transaction, including the security purchased, the price, the
trade date, and the issuance and maturity dates of the security.
Morgan Keegan’s trade confirmations state, “For information regarding the
auction procedures refer to the Morgan Keegan website. Copies available upon
request.” The home page of Morgan Keegan’s website is listed in the top right
corner as www.morgankeegan.com. Although the trade confirmations refer to
“auction procedures,” they do not refer to “auction practices and procedures.”
Importantly for this case, the trade confirmations do not identify a specific web
page on Morgan Keegan’s website that contains its ARS auction practices and
procedures.
Morgan Keegan’s trade confirmations also do not refer to liquidity risk. At
best, the back side of the trade confirmations contain a generic statement that
investments in securities involve “investment risks.” Specifically, the back side of
each trade confirmation states, “Securities are not deposits or obligations of any
bank. . . . Investments in securities involve investment risks, including the loss of
principal.”3
The trade confirmations state that (1) “[i]f this or any transaction is in error
3
This statement is in the same font size as the rest of the information but is in bold
typeface and all capital letters.
11
or not in accordance with your understanding or instructions, please inform our
Customer Service Department immediately,” and (2) the transaction is “conclusive
and binding if not objected to in writing within ten business days.”
E. ARS Web Page
Although the trade confirmations do not mention liquidity risk, an ARS web
page posted on Morgan Keegan’s website shows that Morgan Keegan knew how
to advise customers about liquidity risk. The ARS web page first describes ARS
as “A Great Place for Short-Term Money” and states that many investors find ARS
“to be an attractive alternative” to tax-exempt money market funds, commercial
paper, certificates of deposit, and U.S. Treasury bills. However, the ARS web
page then cautions that “ARS provide (but do not guarantee) liquidity at par
through weekly and 35 day auctions.”
More significantly, this same ARS web page later on specifically mentions
the liquidity risk associated with ARS, and distinguishes between ARS and
money-market funds, as follows:
You should be aware that investing in auction rate securities involves
certain considerations that differentiate such securities from money
market investment instruments.
• Liquidity Risk—The ability of an investor to dispose of a share of an
auction rate security may be largely dependent on the success of the
auction.
12
There is no assurance that any particular auction will be successful, and
neither the issuer nor any broker dealer is obligated to take any action
to ensure that an auction will be successful. In the absence of successful
auctions, there is no assurance that a secondary market for the auction
will develop or, if such a market does develop, that shares will trade at
or close to par.
The SEC does not contest that the ARS web page, as a whole, adequately
describes the liquidity risk of ARS. The SEC complains, however, that Morgan
Keegan did not give the ARS information on this web page directly to its
customers and did not even direct its customers to this web page or make the ARS
web page easily accessible to its customers. The SEC notes that accessing this
ARS web page required four separate navigation steps from Morgan Keegan’s
homepage. And, despite the requirements in the cease-and-desist order, Morgan
Keegan’s trade confirmations did not provide customers with the URL for the
ARS web page where they could find the description of Morgan Keegan’s auction
practices and procedures.
Although it asserts that its ARS web page was easily accessible, Morgan
Keegan has not cited to us any evidence showing the structure of its website or the
navigation necessary to find its ARS web page. The only evidence in the record is
a five-page printout of an archived version of the web page itself.
F. ARS Manual
In addition to this ARS web page, Morgan Keegan relies on its 24-page
13
manual (the “ARS Manual”) describing its auction practices and procedures.
After the May 31, 2006 cease-and-desist order, Morgan Keegan prepared and sent
this ARS Manual to all customers who already held ARS at the time the ARS
Manual was prepared.
Like the ARS web page, the ARS Manual shows that Morgan Keegan was
aware of, and knew how to disclose, the liquidity risk of ARS. For example, the
ARS Manual has the same information quoted above from the shorter ARS web
page that discusses the liquidity risk of ARS. The ARS Manual also warns that
“[h]olders who have submitted sell orders should be aware that, in the event of an
auction failure, they will not be able to sell all, and may not be able to sell any,
securities in the auction.” A section entitled “Risk Factors and Special
Considerations” explains that (1) Morgan Keegan may act as a buyer or seller in
auctions, but is not obligated to do so, and (2) the fact that an auction clears
successfully does not mean that an ARS investment “involves no significant
liquidity or credit risk.” Under a section styled “No Assurances Regarding
Auction Outcomes,” Morgan Keegan warns that it “provides no assurance as to the
outcome of any auction. Nor does Morgan Keegan provide any assurance that any
bid will be successful, in whole or in part, or that any auction will clear at a rate
that a bidder considers acceptable.”
14
Also like the ARS web page, the SEC does not dispute that the ARS Manual
adequately advises about liquidity risk. Rather, the SEC stresses that Morgan
Keegan did not make the ARS Manual’s disclosures readily accessible to new
ARS customers in 2008 and did nothing else to ensure its customers saw or even
knew about the ARS Manual.
It is undisputed that Morgan Keegan did not require its brokers to distribute
copies of the ARS Manual directly to new customers before or after they
purchased ARS. And even though the ARS Manual was apparently posted
somewhere on Morgan Keegan’s website, Morgan Keegan has not cited evidence
showing specifically where it was on the website or how a customer would
navigate to it.4
G. ARS Brochure and New Disclosure Procedure
To underscore that Morgan Keegan knew about, and easily could have
disclosed, the liquidity risk of ARS (especially during the early 2008 time period),
4
The ARS web page in the record is an archived version of a web page, but the ARS
Manual in the record appears to be a hard copy of the Manual. We note that, in the top right side
of the ARS web page, there is the term “Auction Rate Securities Practices and Procedures,”
which is also the full title of the ARS Manual. However, Morgan Keegan’s brief has not cited
evidence to us showing whether this language is a link or, if so, whether the link retrieves the
ARS Manual. In any event, it appears that a customer would have to get to the ARS web page
(or the five-page archived version of the web page that is in the record) and then proceed to the
ARS Manual. The SEC does not dispute that the ARS Manual was somewhere on Morgan
Keegan’s website.
15
the SEC also points both to a Morgan Keegan ARS Brochure (published in hard
copy) and to the effective disclosure policy Morgan Keegan instituted after March
20, 2008.
The ARS Brochure is a short, tri-fold brochure describing Morgan Keegan’s
ARS products and their liquidity risk. The ARS Brochure includes many of the
same liquidity risk disclosures contained on the ARS web page and in the ARS
Manual. For example, the ARS Brochure states that (1) “investing in auction rate
securities involves certain risks that differentiate such securities from money
market investment instruments,” (2) “[t]he ability of an investor to dispose of a
share of an auction rate security may be largely dependent on the success of the
auction,” and (3) “[t]here is no assurance that any particular auction will be
successful, and neither the issuer nor any broker dealer is obligated to take any
action to ensure that an auction will be successful.”
During 2007 and 2008, Morgan Keegan had hard copies of the ARS
Brochure available at some of its office branches.5 Morgan Keegan also emailed
5
Disputing the availability of hard copies of the ARS Brochure, the SEC points out that
Morgan Keegan (1) did not post the ARS Brochure on its public website, (2) did not require the
ARS Brochure to be distributed to each branch office before March 20, 2008, (3) did not track
which branches requested or received hard copies of the ARS Brochure, (4) had no means of
identifying or determining whether hard copies were distributed to brokers at each branch office,
and (5) had no standard practice or procedure regarding where and how hard copies of the ARS
Brochure were displayed, maintained, or disseminated within each branch office.
16
the ARS Brochure to all of its brokers, but there is no evidence that Morgan
Keegan emailed the brochure to customers purchasing ARS. Instead, Morgan
Keegan provided the brochure to customers only upon request.
Morgan Keegan did institute a new disclosure policy on March 20, 2008,
after the collapse of the ARS market. Under the new policy, Morgan Keegan
required prospective ARS customers to sign this statement: “I understand that
many auction rate securities are currently, or have been recently, failing at auction.
I understand that it may be a considerable period of time before liquidity returns to
this investment and I view this with a longer term horizon.”
H. Morgan Keegan’s Alleged Oral Misrepresentations
During the early 2008 auction failures in the ARS market, Morgan Keegan
continued to sell ARS. Between January 2 and March 19, 2008,6 Morgan Keegan
sold approximately $647 million of ARS to about 1,145 customers. This is the
time frame at issue in this SEC enforcement action.
The SEC contends that, in late 2007 continuing through the collapse of the
ARS market in February 2008, Morgan Keegan’s brokers misrepresented ARS
liquidity risk in an attempt to increase sales. The SEC cites the testimony of four
6
The SEC chose to end the time period for this action on March 20, 2008, apparently
because that date was when Morgan Keegan instituted its new policy of requiring ARS customers
to sign a statement that they understood the liquidity risk of ARS and viewed the ARS
investment “with a longer term horizon.”
17
customers who stated that Morgan Keegan brokers misled them regarding the risk
associated with ARS. These four Morgan Keegan customers testified that Morgan
Keegan brokers told them that ARS (1) were “as good as cash”; (2) were “as good
as money”; (3) were “just like money markets and CDs”; (4) were “cash
equivalents to CDs and money markets”; (5) were “just as good as” an investment
in a CD insured by the FDIC; (6) were “completely liquid” except for a “possible
35-day hold”; (7) presented “zero concerns [and] zero risk”; and (8) involved
“absolutely no risk.”
The customers averred that the brokers did not disclose the possibility of an
auction failure and the associated liquidity risk. They testified further that some
Morgan Keegan brokers claimed that ARS investments carried no risk at all. The
SEC contends that these four customers never saw the ARS web page, the ARS
Manual, or the ARS Brochure, and that their brokers never told them where these
documents could be found.
The SEC also submitted written complaints from 14 customers, including
customer letters, civil actions filed in federal court, arbitration statements of claim
filed with the Financial Industry Regulatory Authority, complaints filed with state
regulators, and complaints filed with the SEC. These written complaints identified
similar misrepresentations of the liquidity risk of ARS by Morgan Keegan brokers.
18
II. PROCEDURAL HISTORY
On July 21, 2009, the SEC sued Morgan Keegan for securities fraud in
violation of § 17(a) of the Securities Act (Counts One and Two); § 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder (Count Three); and
§ 15(c)(1) of the Exchange Act (Count Four). The complaint alleged that Morgan
Keegan’s brokers and marketing materials misrepresented ARS as cash
alternatives and omitted mention that ARS carried liquidity risk.7
The SEC’s complaint sought this relief: (1) findings that Morgan Keegan
committed the violations alleged in the complaint, (2) a permanent injunction
prohibiting Morgan Keegan from violating Rule 10b-5, §§ 10(b) and 15(c)(1) of
the Exchange Act, and § 17(a) of the Securities Act, (3) an order requiring Morgan
Keegan “to repurchase all ARS that the Defendant sold prior to March 20, 2008,”
(4) disgorgement of “all ill-gotten gains or unjust enrichment,” and (5) civil
monetary penalties in accord with § 20(d) of the Securities Act and § 21(d)(3) of
the Exchange Act.
Following discovery, Morgan Keegan moved for summary judgment on all
counts on the ground that the undisputed facts failed to show a “material”
7
The complaint also alleged that Morgan Keegan’s brokers were insufficiently trained on
the liquidity risk of ARS and that Morgan Keegan continued to push ARS despite knowledge of
significant and increasing risk associated with ARS. These claims are not on appeal.
19
misrepresentation or omission, as required for liability under the Exchange Act,
the Securities Act, and Rule 10b-5. In a thorough order, the district court granted
Morgan Keegan’s motion. SEC v. Morgan Keegan & Co., 806 F. Supp. 2d 1253
(N.D. Ga. 2011). The district court first analyzed Morgan Keegan’s distribution of
its written disclosures about liquidity risk and concluded they were adequately
distributed. Id. at 1260-62. As to the materiality issue, the district court noted that
oral misrepresentations are not immaterial simply because proper written
disclosures exist but then concluded that “the oral statements of four brokers out
of hundreds would not lead a rational jury to believe that Morgan Keegan, as a
whole, misrepresented the risks of ARS investments to its customers.”8 Id. at
1265.
The district court observed that the Supreme Court’s standard for
materiality—whether a reasonable investor would view certain information as
significantly altering the “total mix” of information available—works well when
(1) a securities dealer makes a misrepresentation to an individual who brings a
private action against the dealer, or (2) when a dealer makes a misrepresentation to
the public, in a press release for example, and the SEC brings an enforcement
8
Although the SEC submitted written complaints by 14 other customers, the district court
declined to consider this evidence on the ground that the statements were inadmissible hearsay.
Morgan Keegan, 806 F. Supp. 2d at 1265 n.12.
20
action on behalf of the public. Id. at 1266. The district court characterized this
case as a “hybrid case where the SEC claims that Morgan Keegan misled the
public through the oral statements made to four individuals.” Id. In granting
summary judgment to Morgan Keegan, the district court concluded that the SEC
“must do more than show a few isolated instances of alleged broker misconduct to
obtain the relief it seeks.” Id.
The SEC appeals.9
III. DISCUSSION
The SEC alleges that Morgan Keegan violated §§ 10(b) and 15(c)(1) of the
Exchange Act, § 17(a) of the Securities Act, and SEC Rule 10b-5. To prove a
violation of § 10(b) or Rule 10b-5,10 the SEC must show (1) a material
misrepresentation or materially misleading omission, (2) in connection with the
purchase or sale of a security, (3) made with scienter. SEC v. Merch. Capital,
LLC, 483 F.3d 747, 766 (11th Cir. 2007). The elements of a § 15(c)(1) claim are
the same as a § 10(b) claim.11 SEC v. George, 426 F.3d 786, 792 (6th Cir. 2005).
9
“We review the entry of summary judgment de novo . . . .” SEC v. Warren, 534 F.3d
1368, 1369 (11th Cir. 2008).
10
Section 10(b) of the Exchange Act is codified at 15 U.S.C. § 78j(b). Rule 10b-5 is
codified at 17 C.F.R. § 240.10b-5.
11
Section 15(c) of the Exchange Act is codified at 15 U.S.C. § 78o(c).
21
To show a violation of § 17(a)(1), the SEC must prove (1) a material
misrepresentation or materially misleading omission, (2) in the offer or sale of a
security, (3) made with scienter. Merch. Capital, 483 F.3d at 766. Finally, to
establish a violation of § 17(a)(2) or 17(a)(3),12 the SEC must show (1) a material
misrepresentation or materially misleading omission, (2) in the offer or sale of a
security, (3) made with negligence. Id.
An important distinction exists between the elements of a private
enforcement action and an SEC enforcement action. In a private enforcement
action under § 10(b) or Rule 10b-5, the plaintiff also must show “justifiable
reliance” on the material misstatement or omission and that the misstatement
caused the plaintiff’s damages. See Bruschi v. Brown, 876 F.2d 1526, 1529 (11th
Cir. 1989). “Justifiable reliance,” however, is not an element of an SEC
enforcement action because Congress designated the SEC as the primary enforcer
of the securities laws, and a private plaintiff’s “reliance” does not bear on the
determination of whether the securities laws were violated, only whether that
private plaintiff may recover damages. See SEC v. Rana Research, Inc., 8 F.3d
1358, 1364 (9th Cir. 1993) (“The SEC need not prove reliance in its action for
injunctive relief on the basis of violations of section 10(b) and Rule 10b–5.”); SEC
12
Section 17(a) of the Securities Act is codified at 15 U.S.C. § 77q(a).
22
v. Blavin, 760 F.2d 706, 711 (6th Cir. 1985) (“Unlike private litigants seeking
damages, the Commission is not required to prove that any investor actually relied
on the misrepresentations or that the misrepresentations caused any investor to
lose money.”); see also Merch. Capital, 483 F.3d at 766 (not including “reliance”
in the elements of a § 10(b) action in an SEC enforcement action).
In its summary-judgment motion, Morgan Keegan challenged only the
SEC’s failure to meet the “materiality” element of each of its claims. Accordingly,
the district court assumed that the SEC had met the other elements, namely that
Morgan Keegan’s brokers made oral misrepresentations or omissions “in
connection with” the purchase or sale of securities, and that these
misrepresentations or omissions were made with scienter or negligence, as
appropriate. Morgan Keegan, 806 F. Supp. 2d at 1259–60. Because both the
district court and the parties on appeal addressed only “materiality,” we do the
same.
A. The Test for Materiality
The U.S. Supreme Court has developed the materiality test in a series of
private actions in which the plaintiff investors alleged that the defendant
company’s public statements were misleading. See Matrixx Initiatives, Inc. v.
Siracusano, 131 S. Ct. 1309 (2011); Basic Inc. v. Levinson, 485 U.S. 224, 108 S.
23
Ct. 978 (1988); TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S. Ct.
2126 (1976). The parties agree that this materiality test also applies in this SEC
enforcement action.
The modern test for determining materiality derives from the Supreme
Court’s 1976 decision in TSC Industries v. Northway, Inc., which involved a
minority shareholder’s allegation that the defendant companies’ joint proxy
statement was materially misleading, in violation of § 14(a) of the Exchange Act.
426 U.S. at 441, 96 S. Ct. at 2129. The Supreme Court noted the “universal[]
agree[ment]” that materiality is an “objective” inquiry involving the significance
of an omitted or misrepresented fact to a reasonable investor. Id. at 445, 96 S. Ct.
at 2130. In TSC Industries, the Supreme Court adopted this standard for
materiality in a proxy solicitation: “An omitted fact is material if there is a
substantial likelihood that a reasonable shareholder would consider it important in
deciding how to vote.” Id. at 449, 96 S. Ct. at 2132. In other words, a
misstatement or omission is material if there is a “substantial likelihood that the
disclosure of the omitted fact would have been viewed by the reasonable investor
as having significantly altered the ‘total mix’ of information made available.” Id.;
see also SEC v. Ginsburg, 362 F.3d 1292, 1302 (11th Cir. 2004) (“Materiality is
proved by showing a substantial likelihood that the disclosure of the omitted fact
24
would have been viewed by the reasonable investor as having significantly altered
the ‘total mix’ of information made available.” (quotation marks omitted)); Merch.
Capital, 483 F.3d at 766 (applying “reasonable man” standard).
In its next major materiality decision, Basic Inc. v. Levinson in 1988, the
Supreme Court expressly applied the TSC Industries materiality test to a fraud
case under § 10(b) of the Exchange Act and Rule 10b-5. 485 U.S. at 231–32, 108
S. Ct. at 983 (stating that “to fulfill the materiality requirement there must be a
substantial likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered the ‘total mix’ of
information made available” (quotation marks omitted)). The plaintiffs in Basic
were former shareholders who sold their shares after the defendant company
issued public statements denying preliminary merger negotiations, even though the
defendant was in merger negotiations with a larger company. Id. at 227–28, 108
S. Ct. at 981. The defendant company in Basic proposed a bright-line rule for
determining the materiality of merger negotiations—“merger discussions do not
become material until ‘agreement-in-principle’ as to the price and structure of the
transaction has been reached between the would-be merger partners.” Id. at 233,
108 S. Ct. at 984.
In Basic, the Supreme Court acknowledged that considering merger
25
negotiations “material” only after an agreement in principle was reached would be
an easy materiality test to apply. Id. at 236, 108 S. Ct. at 986. However, “[a]ny
approach that designates a single fact or occurrence as always determinative of an
inherently fact-specific finding such as materiality, must necessarily be
overinclusive or underinclusive.” Id. (emphasis added). Noting that the
materiality test “requires delicate assessments of the inferences a ‘reasonable
shareholder’ would draw from a given set of facts and the significance of those
inferences to him,” the Supreme Court rejected the “agreement-in-principle” test
as underinclusive. Id.; see also Ginsburg, 362 F.3d at 1302 (noting that materiality
“requires delicate assessments of the inferences a reasonable [investor] would
draw from a given set of facts” and that “these assessments are peculiarly ones for
the trier of fact” (quoting TSC Indus., 426 U.S. at 450, 96 S. Ct. at 2133)). The
Supreme Court found “no valid justification for artificially excluding from the
definition of materiality information concerning merger discussions, which would
otherwise be considered significant to the trading decision of a reasonable
investor, merely because agreement-in-principle as to price and structure has not
yet been reached by the parties or their representatives.” Basic, 485 U.S. at 236,
108 S. Ct. at 986 (emphasis added).
Rather, Basic concluded that “materiality depends on the significance the
26
reasonable investor would place on the withheld or misrepresented information.”
Id. at 240, 108 S. Ct. at 988. The role of the materiality inquiry is “to filter out
essentially useless information that a reasonable investor would not consider
significant, even as part of a larger ‘mix’ of factors to consider in making his
investment decision.” Id. at 234, 108 S. Ct. at 985 (emphasis added). Thus,
“[w]hether merger discussions in any particular case are material . . . depends on
the facts.” Id. at 239, 108 S. Ct. at 987.
The Supreme Court’s recent application of the materiality test in Matrixx
Initiatives, Inc. v. Siracusano is also instructive as to what number of adverse
events it takes to make certain information “significant” to the reasonable investor.
131 S. Ct. 1309 (2011). There the plaintiff investors sued Matrixx, a
pharmaceutical company, for failing to disclose reports of adverse events caused
by Matrixx’s Zicam cold-remedy product, in violation of § 10(b) of the Exchange
Act and Rule 10b-5. The plaintiffs alleged that Matrixx knew of reports from
several doctors that their patients lost their senses of smell after using Zicam.13
13
Although Matrixx was aware of these doctors’ reports, Matrixx relied on its own
clinical trials and issued a press release stating that (1) Zicam products were manufactured and
marketed in compliance with FDA guidelines, (2) “Matrixx believes statements alleging that
intranasal Zicam products caused anosmia (loss of smell) are completely unfounded and
misleading,” and (3) in two double-blind, placebo-controlled, randomized clinical trials, there
were no reports of anosmia and “no statistically significant difference between the adverse event
rates for the treated and placebo subsets.” Matrixx, 131 S. Ct. at 1316.
27
Yet, Matrixx issued positive earnings expectations and failed to disclose that it
already was defending product-liability lawsuits involving Zicam.14
Matrixx’s defense was that the plaintiff investors failed to allege a
“statistically significant correlation between the use of Zicam and [loss of smell]
so as to make failure to publicly disclose complaints and [the doctors’ reports] a
material omission.” Id. at 1317. Rejecting this argument, the Supreme Court noted
that—like the defendant company in Basic—Matrixx was proposing a “bright-line
rule that reports of adverse events associated with a pharmaceutical company’s
products cannot be material absent a sufficient number of such reports to establish
a statistically significant risk that the product is in fact causing the events.” Id. at
1318–19 (footnote omitted). But this proposed rule would “artificially exclude
information that would otherwise be considered significant to the trading decision
of a reasonable investor.” Id. at 1319 (alteration and quotation marks omitted).
The Supreme Court reasoned that statistically significant data are not always
available and that medical researchers and the FDA routinely rely on other
14
In October 2003, Matrixx reported that Zicam was “poised for growth in the upcoming
cough and cold season” and predicted a 50% revenue increase and earnings per share of between
25 to 30 cents. Matrixx, 131 S. Ct. at 1315. In its 10-Q filed with the SEC in November 2003,
Matrixx warned that product-liability claims, “whether or not proven to be valid,” could have a
“material adverse effect” on its product branding and goodwill. Id. Matrixx did not disclose that
two plaintiffs had sued, alleging Zicam caused their loss of smell. Then, in January 2004,
Matrixx raised its revenue growth prediction to 80% and its earnings-per-share estimate to 33 to
38 cents. Id.
28
evidence to establish an inference of causation. “Given that medical professionals
and regulators act on the basis of evidence of causation that is not statistically
significant, it stands to reason that in certain cases reasonable investors would as
well.” Id. at 1321.15
B. The “Total Mix” of Information in an SEC Enforcement Action
We now apply this materiality test to the facts of this SEC enforcement
action. To do so, however, we must answer the threshold question of whether, in
an SEC enforcement action, a misstatement or omission by an individual broker to
an individual investor may be included in the analysis of the “total mix” of
information available to the hypothetical reasonable investor. For several reasons,
we conclude that the brokers’ alleged misstatements are included in the materiality
inquiry in an SEC enforcement action.
Morgan Keegan’s principal argument on appeal is that an SEC enforcement
action is designed to protect the public as a whole, and therefore the SEC must
15
Applying the Basic “total mix” standard, the Supreme Court in Matrixx concluded that,
at the motion to dismiss stage, materiality was established under these facts alleged in the
complaint: (1) Matrixx received information from medical experts revealing a plausible
connection between Zicam and the loss of smell, (2) consumers would likely have viewed the
risk of losing the sense of smell as outweighing the benefit of using Zicam to alleviate cold
symptoms, and (3) Zicam accounted for 70% of Matrixx’s sales. The Supreme Court concluded
that these facts suggested “a significant risk to the commercial viability of Matrixx’s leading
product” and that a reasonable investor would view information about this risk to the company’s
leading product as “significantly alter[ing] the total mix of information made available.” Matrixx,
131 S. Ct. at 1323 (quotation marks omitted).
29
demonstrate that Morgan Keegan misled the public as a whole and not just a small
subset of customers. Morgan Keegan argues that the “materiality” of a
misrepresentation in an SEC enforcement action is evaluated in the context of only
disclosures to the public as a whole and without any consideration of a broker’s
communications to a particular investor.16 This argument fails because the
Supreme Court’s materiality standard analyzes the “total mix” of information
available to a hypothetical reasonable investor, not just to the public at large. See
Matrixx, 131 S. Ct. at 1318 (stating the test for materiality is whether there is “a
substantial likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered the ‘total mix’ of
information made available” (emphasis added) (quotations marks omitted)); see
16
Citing Dupuy v. Dupuy, 551 F.2d 1005, 1015 (5th Cir. 1977), Morgan Keegan argues
that “materiality in SEC enforcement actions is appropriately evaluated in the context of
disclosures made ‘to the public, not to any particular investor.’” Morgan Keegan cites Dupuy
wholly out of context. First, the issue in Dupuy was whether the private plaintiff acted with due
diligence, not whether the defendant’s misrepresentations and omissions were material. Second,
Dupuy does not purport to limit SEC enforcement actions in any way. Rather, the Court was
explaining that the subjective knowledge or diligence of any particular investor is not relevant to
an SEC enforcement action, which focuses on whether a defendant violated the securities laws,
not whether any particular investor was harmed.
If anything, Dupuy bolsters our conclusion that the brokers’ statements must be included
in the materiality inquiry by stating that the “standard of conduct for defendants logically should
be the same whether the SEC or a private litigant enforces the duty” imposed by the securities
laws. Id. Because the materiality test determines whether a defendant’s conduct violates the
securities laws, the materiality test “logically should be the same whether the SEC or a private
litigant enforces the duty.” See id. The materiality test will be the same only if the “total mix” of
information is the same in an SEC enforcement action as it is in a private enforcement action.
30
also Basic, 485 U.S. at 236, 108 S. Ct. at 986 (stating the materiality analysis
“requires delicate assessments of the inferences a ‘reasonable shareholder’ would
draw from a given set of facts and the significance of those inferences to him”
(emphasis added)); Merch. Capital, 483 F.3d at 768–71 (applying “reasonable
man” standard). In other words, the materiality test requires the court to consider
all the information available to the hypothetical reasonable investor, which
necessarily includes private communications. See Aaron v. SEC, 446 U.S. 680,
682–83, 100 S. Ct. 1945, 1948–49 (1980) (considering, in SEC enforcement
action against managerial employee of broker–dealer, misleading statements by
two individual brokers to prospective investors). By failing to consider the
brokers’ alleged oral misrepresentations, Morgan Keegan’s analysis deprives the
publicly available written disclosures of their complete context and deprives its
brokers’ oral misrepresentations of any role in SEC enforcement actions.
The problem for Morgan Keegan is the SEC enjoys the authority to seek
relief for any violation of the securities laws, no matter how small or
inconsequential.17 And it is well-settled that a violation of § 10(b) of the
17
Both the Securities Act and the Exchange Act permit the SEC to bring a civil action
either to enjoin or to impose a civil penalty for any violation of the federal securities laws. See
15 U.S.C. § 77t(b) (“Whenever it shall appear to the Commission that any person is engaged or
about to engage in any acts or practices which constitute or will constitute a violation of the
[Securities Act], or of any rule or regulation prescribed under authority thereof, the Commission
may, in its discretion, bring an action in any district court of the United States . . . to enjoin such
31
Exchange Act requires only a (1) material misrepresentation or materially
misleading omission, (2) in connection with the purchase or sale of securities, (3)
made with scienter. Merch. Capital, 483 F.3d at 766. The SEC thus may seek a
civil penalty against any defendant who has made a single misstatement or
omission, if material and made with scienter and in connection with the purchase
or sale of securities.18 Morgan Keegan cannot show that its oral misstatements
were immaterial merely by showing that those statements were not made publicly.
Moreover, a rule excluding all individual broker–investor communications
from the materiality inquiry is underinclusive, just like the “agreement-in-
principle” rule the Supreme Court rejected in Basic and the “statistical
significance” rule it rejected in Matrixx. See Basic, 485 U.S. at 236, 108 S. Ct. at
986; Matrixx, 131 S. Ct. at 1319. That is, the hypothetical reasonable investor
looking for a short-term, liquid investment is likely to consider his broker’s
statements about the relative merit (and lack of risk) of certain investments in
acts or practices . . . .”); 15 U.S.C. § 78u(d)(1) (“Whenever it shall appear to the Commission
that any person is engaged or is about to engage in acts or practices constituting a violation of any
provision of [the Exchange Act], the rules or regulations thereunder, [or] the rules of a national
securities exchange or registered securities association of which such person is a member or a
person associated with a member . . . it may in its discretion bring an action in the proper district
court of the United States . . . to enjoin such acts or practices . . . .”); see also 15 U.S.C.
§§ 77t(d), 78u(d)(3) (authorizing the SEC to seek a monetary civil penalty against any person
who “has violated any provision” of the Securities Act or the Exchange Act).
18
Other limitations—such as money or time—may counsel against the SEC’s prosecuting
such actions. But the statutes grant the SEC this broad authority.
32
deciding among different investment options.19 And the fact-finder could easily
conclude that a reasonable investor would find liquidity risk an important factor in
determining whether to invest in ARS, especially given Morgan Keegan’s
advertising ARS as a highly liquid alternative to money market funds.
Further, there is no statutory or precedential support for Morgan Keegan’s
argument that some threshold number of investors must be misled before finding
its brokers’ misrepresentations “material” in an SEC enforcement action. The
SEC is not required to prove an institution-wide effort by brokers to mislead
customers in order to bring or to prevail in an SEC enforcement action. The extent
of the brokers’ misrepresentations may ultimately affect the size of the remedy,
such as fines or disgorgement imposed, but there is no minimum number of
misrepresentations required for a materiality finding in an SEC enforcement
action. Simply put, a numerical threshold for materiality runs counter to the
securities acts’ broad grant of authority to the SEC to bring an action for any
violation of the securities laws.
In this case, the SEC presented evidence that four Morgan Keegan brokers
19
Because this is an SEC enforcement action, we need not determine whether the
individual investor’s reliance on his broker’s statements is reasonable.
33
misrepresented the liquidity risk of ARS to customers.20 Under principles of
respondeat superior, Morgan Keegan is liable for the acts of these brokers so long
as they acted within the scope of their authority. See Paul F. Newton & Co. v.
Tex. Commerce Bank, 630 F.2d 1111, 1118 (5th Cir. 1980) (concluding that
“common law agency principles, including the doctrine of respondeat superior,
remain viable in actions” under the Exchange Act).21 Morgan Keegan concedes
that these four brokers were acting within the scope of their authority when they
made the alleged misrepresentations. Thus, the SEC, at a minimum, may establish
a securities violation with respect to each of those four investors irrespective of
“an institutional effort to mislead” customers and irrespective of whether any
additional brokers attempted to mislead Morgan Keegan’s other customers. In this
SEC enforcement action, we discern no reason to exclude Morgan Keegan’s
brokers’ misrepresentations from the materiality analysis of the “total mix” of
20
The SEC argues that the district court abused its discretion by refusing to consider the
SEC’s evidence of other alleged misrepresentations, including written complaints by 14 other
customers that their Morgan Keegan brokers had misrepresented the liquidity risk of ARS.
Because we conclude that the SEC met its burden to show “materiality” with respect to the
misstatements to the four investors, we need not address whether the district court erred in
excluding this evidence as hearsay during the summary judgment stage. We recognize that the
SEC argues that the district court may consider hearsay when ruling on summary judgment if the
statement could be reduced to admissible evidence at trial. The SEC will have an opportunity to
do just that as to these 14 customers on remand during the trial.
21
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
34
information available to the reasonable investor.
C. The Materiality of Oral Misrepresentations Conflicting With Morgan
Keegan’s Written Disclosures Is an Issue for the Trier of Fact
Having decided that these alleged oral misrepresentations by the four
Morgan Keegan brokers must be considered for purposes of materiality, we next
determine whether Morgan Keegan’s written disclosures nonetheless rendered its
brokers’ oral misrepresentations immaterial as a matter of law. The way
information is disclosed can be as important as its content. Thus, in evaluating the
effect of Morgan Keegan’s written disclosures, we must consider not only the
content of the written disclosures but also the way in which the disclosures were
made. After record review, we conclude that, even if a brokerage company’s
written disclosures might render its individual brokers’ oral misstatements
immaterial in some cases, Morgan Keegan’s manner of distribution of its written
disclosures in this particular case was insufficient to warrant summary judgment
for Morgan Keegan.
In this regard, the main securities cases the parties cite from our circuit
addressing the interplay of written disclosures and oral misrepresentations are
Bruschi v. Brown, 876 F.2d 1526 (11th Cir. 1989), and First Union Discount
Brokerage Servs., Inc. v. Milos, 997 F.2d 835 (11th Cir. 1993). Because these two
cases involve justifiable reliance rather than materiality, they are not on point. Yet
35
these cases show that the effect of oral misrepresentations conflicting with written
disclosures—whether measured by a private plaintiff’s reliance or by the
significance to a hypothetical reasonable investor—depends heavily on the facts of
each case.
In Bruschi, the defendant–broker gave the written disclosures directly to the
plaintiff–investor, but we concluded they did not warrant judgment as a matter of
law for the defendant in the plaintiff’s private action alleging oral
misrepresentations. The Bruschi plaintiff, an unsophisticated investor, hired the
defendant Brown as her broker and investment advisor. Id. at 1527. Employed at
Dean Witter Reynolds, Inc., defendant Brown recommended “the Elmco
investment,” which he described in positive terms, and stated it would provide the
plaintiff with “significant tax deductions.” Id. Brown did not disclose that the
Elmco investment was a complex and risky venture involving unregistered
securities and was neither endorsed nor offered by Dean Witter, or that Elmco was
paying Brown a commission for any securities he sold. Brown visited the
plaintiff’s home to close the transaction and gave her 160 pages of documents
describing the merits and risks of the Elmco investment. Id. at 1527–28. After
Brown assured that her signature “was a mere formality,” the plaintiff signed the
documents without reading them. Id. at 1528.
36
Defendant Brown argued that the extensive disclosure documents conflicted
with the alleged oral misrepresentations and that, as a matter of law, “an investor
is not justified in relying on oral misrepresentations that conflict with
contemporaneous written representations.” Id. at 1529. This Court noted that it
had never held that, “regardless of the circumstances, an investor is always
precluded from recovering under Rule 10b-5 if the misrepresentations upon which
the investor relied were oral and conflict in some way with contemporaneous
written representations available to the investor.” Id.22
In Bruschi, this Court then listed several factors for determining whether an
investor’s reliance is justified.23 This Court concluded that, “[w]hen all factors are
considered, it cannot be held as a matter of law that [plaintiff] Bruschi’s reliance
on the alleged oral misrepresentations was not justified.” Id. at 1530. Even in
22
In Bruschi, although the oral “misrepresentations conflicted with statements in the
disclosure documents that the economic and tax risks were substantial,” the Court also noted that
“[t]he disclosure documents . . . were consistent with Brown’s alleged oral misrepresentations
that (1) there were no material relationships between himself and Elmco and (2) that he had not
and would not be receiving any compensation from Elmco.” Bruschi, 876 F.2d at 1530. “Thus,
even if Bruschi had read the disclosure documents, she would have received conflicting signals
as to the reliability of the alleged oral misrepresentations rather than the obvious indication of
unreliability argued by Brown.”
23
The Bruschi court listed these factors: “(1) the sophistication and expertise of the
plaintiff in financial and security matters; (2) the existence of long standing business or personal
relationships between the plaintiff and the defendant; (3) the plaintiff’s access to relevant
information; (4) the existence of a fiduciary relationship owed by the defendant to the plaintiff,
(5) concealment of fraud by the defendant; (6) whether the plaintiff initiated the stock transaction
or sought to expedite the transaction; and (8) the generality or specificity of the
misrepresentations.” Bruschi v. Brown, 876 F.2d 1526, 1529 (11th Cir. 1989).
37
Bruschi, where the plaintiff bore the additional burden to show justifiable reliance,
this Court did not allow the written disclosures to trump oral misrepresentations as
a matter of law.24
Subsequently, in First Union v. Milos, this Court distinguished Bruschi in
holding that sophisticated investors could not have justifiably relied on a broker’s
oral representations that “predated and conflicted with the clear language” of two
contracts directly given to and signed by the investors. 997 F.2d at 846. The First
Union Court stated that “[i]n Bruschi, we explained that circumstances may
warrant departure from the usual presumption that reliance on an oral
representation that a written representation contradicts is not justified.” Id. at 846
n.22. This Court compared the factual circumstances in Bruschi and First Union
and concluded that the facts did not warrant departure in First Union: Factually,
24
Morgan Keegan also relies on Acme Propane, Inc. v. Tenexco, Inc., 844 F.2d 1317 (7th
Cir. 1988), but that private action involved written disclosures that were given directly to the
plaintiff investors. Acme Propane does include a curious footnote stating that, although the
precedent it cited was interpreting the reliance element of a securities fraud claim, “‘reliance’ in
securities law is just a code word for causation, which in turn usually means a material
misstatement.” Id. at 1322 n.*. However, this is an SEC enforcement action, which requires no
showing of justifiable reliance.
Moreover, the Supreme Court’s cases establish an objective, reasonable-investor standard
for determining “materiality.” Reliance, in contrast, focuses on the individual investor–plaintiff.
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 159, 128 S. Ct. 761, 769
(2008) (stating the reliance element of a private action under Rule 10b-5 “ensures that . . . the
requisite causal connection between a defendant’s misrepresentation and a plaintiff’s injury
exists as a predicate for liability” (quotation marks omitted)). To the extent the Acme Propane
footnote says that justifiable reliance and materiality are the same inquiry, we find Acme Propane
unpersuasive and rely instead on the Supreme Court’s materiality cases outlined above.
38
Bruschi involved (1) “an offering memorandum”; (2) an investor who was
“unsophisticated and inexperienced in financial matters” and told not to read the
disclosure documents; (3) a security purchase “initiated” by the defendant–broker;
and (4) “some statements in the disclosure documents [that] confirmed some of the
alleged oral misrepresentations.” Id. (quotation marks omitted). By comparison,
in First Union: (1) the disclosures were in “two written contracts” given directly to
a “sophisticated investor”; (2) the investors “had full control over their
investments”; (3) “the written agreements violently contradicted the oral
representations”; and (4) First Union did not tell the investors not to read the
written agreements. Id.
While Bruschi and First Union involve “justifiable reliance,” they
nonetheless show that, in securities cases, whether written disclosures should
trump oral misrepresentations is highly fact-specific and therefore is not amenable
to bright-line rules. Cf. Matrixx, 131 S. Ct. at 1318–19; Basic, 485 U.S. at 236,
108 S. Ct. at 986; TSC Indus., 426 U.S. at 450, 96 S. Ct. at 2133.
Here, after considering the entire record, we conclude that Morgan
Keegan’s written disclosures do not warrant summary judgment for Morgan
Keegan on the “materiality” issue. The oral misrepresentations at issue here were
made directly to customer–investors who aver they never received or knew about
39
the written disclosures at the time of their purchases. Importantly too, the oral
misstatements must be considered in the factual context of a weak, or non-existent,
distribution of the written disclosures.
For example, although Morgan Keegan produced adequate written
disclosures in the ARS Manual and the ARS Brochure and gave the ARS Manual
directly to customers in 2006, there is no evidence that, during late 2007 and early
2008, Morgan Keegan directly gave customers these written disclosures before or
after customers purchased ARS. At most, the record shows that the ARS Brochure
was available at some of Morgan Keegan’s branch offices, but the ARS Brochure
was given to customers only upon a customer’s request.
The only written documents that were directly given to ARS purchasers
were the trade confirmations. But the trade confirmations say absolutely nothing
about liquidity risk.
The trade confirmations do refer customers to the website for “information
regarding the auction procedures,” but the trade confirmations list only the
Morgan Keegan home page (despite the cease-and-desist order’s explicit
instruction25 that the trade confirmations notify customers that a written
25
At oral argument, Morgan Keegan argued that the SEC should be estopped from arguing
that Morgan Keegan had not met its disclosure requirements because the cease-and-desist order
explicitly states that a broker–dealer could meet its disclosure obligations under the cease-and-
desist order by including a note in the confirmation that the broker–dealer’s “material auction
40
description of Morgan Keegan’s auction practices “is available on a specified
webpage of [Morgan Keegan’s] website”). While the evidence contains a copy of
an archived ARS web page on Morgan Keegan’s website, there is no evidence that
brokers directed customers interested in ARS to the ARS web page.26
We recognize that the back of the trade confirmations state that securities
“involve investment risks, including the loss of principal.” But given Morgan
Keegan’s knowledge of the increasing rate of auction failures in late 2007 and
early 2008, this general cautionary language is insufficient to render its brokers’
oral misrepresentations during that period immaterial as a matter of law. See
Merch. Capital, 483 F.3d at 768 (holding that a defendant’s performance
projections were materially misleading despite general cautionary language
because the defendant failed to disclose past performance information “that would
practices and procedures” is available on a specified web page on the broker–dealer’s website.
We are not persuaded. The cease-and-desist order deals with the distinct violation of failing to
disclose auction practices and procedures, not with misrepresenting or failing to disclose the
liquidity risk of ARS. In other words, the fact that a broker–dealer has adequately disclosed its
ARS auction procedures does not absolve the broker–dealer of liability for its brokers’ materially
misleading statements about the liquidity risk of ARS.
26
At this summary judgment stage, we need not resolve the dispute over how many steps a
customer would need to reach the ARS web page because Morgan Keegan has not presented
evidence that anyone ever visited the ARS web page or that any of its brokers ever directed a
customer to its ARS web page. At oral argument, Morgan Keegan’s attorney mentioned that a
customer could enter “auction” in the search box on its homepage and thereby reach the ARS
web page. We cannot find that in the record either. In any event, Morgan Keegan’s manner of
distributing its written disclosures of ARS liquidity risk in 2008 does not warrant summary
judgment for Morgan Keegan.
41
be useful to a reasonable investor in assessing those [optimistic performance
projections]”).
Moreover, the trade confirmations were provided only after the ARS
purchase and after the alleged oral misrepresentations. And because nothing in the
trade confirmations discloses the liquidity risk of ARS, customers would have no
reason to investigate whether to use the ten-day provision to rescind the
transaction. Accordingly, the ten-day-rescission remedy is insufficient to support
a finding, as a matter of law, that the brokers’ oral misstatements were immaterial.
Despite failing to provide its written disclosures directly to customers,
Morgan Keegan argues that the written disclosures were available to any
“reasonably diligent investor.” But due diligence is a distinct and subjective
element of a private action under Rule 10b-5, unrelated to the objective materiality
test. Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413, 1418 (11th
Cir. 1983) (“‘[D]ue diligence’ [is] a separate element in 10b-5 cases, apart from
questions of materiality, reliance, or defendants’ duties.”). And, because due
diligence focuses on whether “the carelessness of a plaintiff should preclude his
recovery,” it is properly considered only in a private action brought by an investor,
not an SEC enforcement action. See id. at 1418 n.7.
In sum, the materiality inquiry in this SEC enforcement action must account
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for the oral misrepresentations of Morgan Keegan’s brokers. Because Morgan
Keegan’s written disclosures were not given directly to customers but were
distributed only in the weak or non-effective manner outlined above, we conclude
that the brokers’ misleading statements and failure to disclose the known liquidity
risk of ARS could have “been viewed by the reasonable investor as having
significantly altered the ‘total mix’ of information made available.” See Basic,
485 U.S. at 231–32, 108 S. Ct. at 983 (quotation marks omitted). Indeed, as noted
above, the materiality test requires “delicate assessments of the inferences a
‘reasonable shareholder’ would draw from a given set of facts and the significance
of those inferences to him, and these assessments are peculiarly ones for the trier
of fact.” TSC Indus., 426 U.S. at 450, 96 S. Ct. at 2133.
IV. CONCLUSION
For these reasons, we conclude that the district court erred in granting
summary judgment for Morgan Keegan based on the “materiality” element of the
securities violations charged in this SEC enforcement action. Our holding is
narrow and limited to materiality. We do not address whether the SEC has met
any other element of its claims or whether the SEC will ultimately prevail in this
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litigation.27 Accordingly, we vacate the district court’s June 28, 2011 order
granting summary judgment to Morgan Keegan and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
27
In ruling on materiality, we have no occasion to address the remedies being sought by
the SEC. Upon remand, both parties should be given the opportunity to develop and litigate the
remedies being sought. If the SEC prevails and shows a securities violation or violations, the
fact-finder then can consider the appropriate size and scope of the remedies.
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