Platinum Partners Value Arbitrage Fund v. Chicago Board Options Exchange , 2012 IL App (1st) 112903 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Platinum Partners Value Arbitrage Fund, Ltd. Partnership v.
Chicago Board Options Exchange,
2012 IL App (1st) 112903Appellate Court PLATINUM PARTNERS VALUE ARBITRAGE FUND, LIMITED
Caption PARTNERSHIP, Plaintiff-Appellant, v. CHICAGO BOARD OPTIONS
EXCHANGE, OPTIONS CLEARING CORPORATION, and JOHN
DOE DEFENDANTS 1 THROUGH 10, Defendants-Appellees.
District & No. First District, Sixth Division
Docket No. 1-11-2903
Filed August 10, 2012
Held The conduct of defendants, two self-regulatory organizations involved in
(Note: This syllabus the trading of options contracts, in providing inside information to certain
constitutes no part of traders was not subject to the doctrine of regulatory immunity, giving
the opinion of the court self-regulatory organizations absolute immunity when they are
but has been prepared performing their regulatory duties, since providing inside information was
by the Reporter of not part of their regulatory functions; therefore, the dismissal of plaintiff’s
Decisions for the complaint based on defendants’ conduct was reversed.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-54472; the
Review Hon. Mary Anne Mason, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Marvin A. Miller and Matthew E. Van Tine, both of Miller Law LLC, of
Appeal Chicago, and Sanford P. Dumain, Todd Kammerman, and Jennifer J.
Sosa, all of Milberg LLP, of New York, New York, for appellant.
Paul E. Greenwalt and Michelle A. Silverthorn, both of Schiff Hardin
LLP, of Chicago, for appellee Chicago Board Options Exchange.
William J. Nissen and David M. Baron, both of Sidley Austin LLP, of
Chicago, for appellee Options Clearing Corporation
Panel PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion.
Justice Palmer concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.
OPINION
¶1 In this case, we must determine whether a self-regulating options organization has
absolute immunity from suit when it is claimed that it wrongfully provided inside
information to a select number of traders.
¶2 Plaintiff Platinum Partners Value Arbitrage Fund, L.P., sued defendants the Chicago
Board Options Exchange (CBOE), the Options Clearing Corporation (OCC) and “John Doe”
defendants, claiming violations of the Illinois Securities Law of 1953 (Illinois Securities
Law) (815 ILCS 5/1 et seq. (West 2002)) and the Illinois Consumer Fraud and Deceptive
Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2002)) and
common law fraud. The trial court granted defendants’ motion to dismiss, finding that they
were absolutely immune from suit. The trial court held that plaintiff’s allegations of
misconduct were based on defendants’ conduct as self-regulatory organizations. For the
following reasons, we reverse. Where defendants privately disclose information about the
price adjustment of a stock option to selected market participants before that information is
made publicly available, the doctrine of regulatory immunity does not apply.
¶3 BACKGROUND
¶4 On December 27, 2010, plaintiff filed the initial verified complaint, alleging that between
December 17 and December 20, 2010, defendants CBOE and OCC decided to reduce the
strike price on India Fund, Inc. (IFN), series options contracts by $3.78, effective December
29, 2010. IFN is a mutual fund traded at two different options exchanges, one being
defendant CBOE. Defendant OCC is a clearing agency, which clears and settles options
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trades made by CBOE and other options exchanges, including options in IFN. Plaintiff
alleges that an unnamed employee at either defendant CBOE or defendant OCC improperly
disclosed to unnamed market participants, the John Doe defendants, that the strike price of
IFN would be downwardly adjusted before that decision was publically announced. Plaintiff
was injured when it purchased 50,000 IFN put options on December 20 from the John Doe
defendants before defendants CBOE and OCC publicly disclosed the information about the
reduction in IFN’s strike price.
¶5 On December 27, 2010, plaintiff filed an emergency motion for a temporary restraining
order and preliminary injunction in order to prevent the price adjustment from taking effect.
On December 28, 2010, the trial court denied that motion. On February 25, 2011, defendants
CBOE and OCC moved to dismiss the initial complaint, claiming that they were immune
from suit for plaintiff’s claims and that the complaint failed to state claims upon which relief
could be granted. After plaintiff obtained new counsel, the parties stipulated to a new
briefing schedule on the motion to dismiss to allow plaintiff’s new counsel time to review
the initial complaint and perform its own investigation of plaintiff’s claims. Through that
investigation, plaintiff discovered the names of additional potential defendants and other
relevant information, which it incorporated into a proposed amended complaint.
¶6 On June 9, 2011, plaintiff filed a timely motion to file the proposed amended complaint.
On August 31, 2011, after oral argument on defendants’ motion to dismiss, the trial court
granted the motion to dismiss, finding that defendants CBOE and OCC were absolutely
immune from suit because plaintiff’s allegations of misconduct were based on defendants
CBOE’s and OCC’s conduct as self-regulatory organizations. Additionally, the trial court
dismissed the initial complaint without leave to amend, stating that there was no set of facts
that plaintiff could allege that would circumvent the doctrine of regulatory immunity. Thus,
the trial court did not rule on plaintiff’s motion to amend to add new parties. On September
21, 2011, the trial court entered final judgment in favor of defendants CBOE and OCC. That
same day, plaintiff informed the trial court that it wished to withdraw, without prejudice to
filing suit at another time, its motion for leave to amend to add additional defendants. The
trial court allowed plaintiff to withdraw its motion to amend.
¶7 On September 30, 2010, plaintiff timely filed a notice of appeal, appealing the trial
court’s dismissal of its claims.
¶8 ANALYSIS
¶9 In this appeal, plaintiff claims that defendants CBOE and OCC’s nonpublic
dissemination of information concerning the adjustment of the strike price did not pertain to
their regulatory duties. Plaintiff asks us to reverse the dismissal and final judgment entered
in favor of defendants CBOE and OCC and to remand the case with directions to reinstate
all counts of the complaint for trial on the merits. In the alternative, plaintiff asks us to
reverse the dismissal and final judgment entered in favor of defendants CBOE and OCC and
to remand the case with directions to grant plaintiff leave to amend its complaint against
defendants CBOE and OCC.
¶ 10 The issues presented for review in this case are: (1) whether the trial court properly found
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that regulatory immunity barred plaintiff’s claims, (2) whether the trial court erred in granting
defendants CBOE and OCC’s motion to dismiss, and (3) whether the trial court erred in
granting defendants’ motion to dismiss without permitting plaintiff leave to amend.
¶ 11 I. Standard of Review
¶ 12 A motion to dismiss under section 2-615 of the Illinois Code of Civil Procedure
challenges the legal sufficiency of the complaint by alleging defects on its face. 735 ILCS
5/2-615 (West 2010); City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364 (2004).
In other words, the motion claims that the plaintiff failed to allege a valid cause of action.
Therefore, the standard of review of a trial court’s grant to dismiss under section 2-615 is de
novo. Lozman v. Putnam, 379 Ill. App. 3d 807, 820 (2008). Under the de novo standard of
review, the reviewing court does not need to defer to the trial court’s judgment or reasoning.
People v. Vincent, 226 Ill. 2d 1, 14 (2007). De novo review is completely independent of the
trial court’s decision. United States Steel Corp. v. Illinois Pollution Control Board, 384 Ill.
App. 3d 457, 461 (2008). In reviewing a section 2-615 challenge to the legal sufficiency of
a complaint, a court regards all well-pled facts as true and draws all reasonable inferences
in favor of the plaintiff. Lozman, 379 Ill. App. 3d at 821; Iseberg v. Gross, 366 Ill. App. 3d
857, 860 (2006). The court should “construe the complaint liberally and dismiss only when
it appears that the plaintiffs could not recover under any set of facts.” Lozman, 379 Ill. App.
3d at 821.
¶ 13 The question of whether to grant or deny leave to amend a complaint is within the trial
court’s discretion, and the trial court’s decision will not be reversed absent an abuse of that
discretion. Leave to amend should generally be granted unless it is apparent that, even after
the amendment, no cause of action can be stated. Weidner v. Midcon Corp., 328 Ill. App. 3d
1056, 1059 (2002). “The test to be applied in determining whether the trial court’s discretion
was properly exercised is whether the allowance of the amendment would further the ends
of justice.” Weidner, 328 Ill. App. 3d at 1059. Abuse of discretion will be found where no
reasonable man could agree with the position of the lower court. Matthews v. Avalon
Petroleum Co., 375 Ill. App. 3d 1, 9 (2007).
¶ 14 II. Doctrine of Regulatory Immunity
¶ 15 Defendants CBOE and OCC are self-regulatory organizations (SROs). 15 U.S.C.
§ 78c(a)(26) (2006) (defining SROs as including national securities exchanges and clearing
agencies). “[A]n SRO and its officers are entitled to absolute immunity when they are, in
effect, ‘acting under the aegis’ of their regulatory duties.” DL Capital Group, LLC v.
NASDAQ Stock Market, Inc., 409 F.3d 93, 97 (2d Cir. 2005) (quoting Sparta Surgical Corp.
v. National Association of Securities Dealers, Inc., 159 F.3d 1209, 1214 (9th Cir. 1998)).
The doctrine of regulatory immunity allows SROs the ability to exercise their powers without
fear that their discretionary decisions will lead to litigation. In re NYSE Specialists Securities
Litigation, 503 F.3d 89, 97 (2d Cir. 2007). However, SROs do not have complete immunity
from lawsuits. Weissman v. National Ass’n of Securities Dealers, Inc., 500 F.3d 1293, 1297
(11th Cir. 2007). Absolute immunity is improper unless the conduct at issue is a delegated
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quasi-governmental prosecutorial, regulatory, or disciplinary function. “[E]ntities that enjoy
absolute immunity when performing governmental functions cannot claim that immunity
when they perform non-governmental functions.” Weissman, 500 F.3d at 1296. When these
entities perform duties that pertain to the exercise of “ ‘private franchises, powers, and
privileges which belong to them for their own corporate benefit, . . . then a different rule of
liability is applied and they are generally held responsible for injuries arising from their
negligent acts or their omissions to the same extent as a private corporation under like
circumstances.’ ” Weissman, 500 F.3d at 1296-97 (quoting Owen v. City of Independence,
445 U.S. 622, 645 n.27 (1980)).
¶ 16 The test for whether an SRO’s conduct falls within the scope of regulatory immunity is
objective. The subject intent of the SRO is irrelevant. Weissman, 500 F.3d at 1297 (“To
determine whether an SRO’s conduct is quasi-governmental, we look to the objective nature
and function of the activity for which the SRO seeks to claim immunity.”). Regulatory
immunity applies whenever the “plaintiff’s allegations concern the exercise of powers within
the bounds of the government functions delegated to [the SRO].” In re NYSE Specialists
Securities Litigation, 503 F.3d 89, 98 (2d Cir. 2007). “Immunity depends only on whether
specific acts and forbearances were incident to the exercise of regulatory power, and not on
the propriety of those actions or inactions.” (Emphasis omitted.) In re NYSE Specialists
Securities Litigation, 503 F.3d at 98.
¶ 17 The United States Court of Appeals for the Second Circuit listed a number of areas of
conduct from which an SRO would be immune from prosecution, including the public
announcement of regulatory decisions. Standard Investment Chartered, Inc. v. National
Ass’n of Securities Dealers, Inc., 637 F.3d 112, 116 (2d Cir. 2011). The “timing and method
of the announcement of an official [SRO] investigation is entitled to absolute immunity.” In
re NYSE Specialists Securities Litigation, 503 F.3d at 100; see also DL Capital Group, LLC
v. Nasdaq Stock Market, Inc., 409 F.3d 93 (2d Cir. 2005) (“[R]eporting its regulatory actions
to the public is, at the very least, certainly ‘consistent with [Nasdaq’s] quasi-governmental
powers as an SRO ***.’ ” (Emphasis omitted.) (quoting D’Alessio, 258 F.3d at 106)).
¶ 18 In the case at bar, plaintiff concedes that the adjustment of IFN’s strike price was a
regulatory decision, serving to protect investors by compensation for the fact that the
extraordinary distribution declared by IFN would reduce the value of the underlying IFN
shares. However, while the price adjustment itself may have been a regulatory decision, the
manner in which it was disclosed–privately and prematurely–to the John Doe defendants was
not. Defendants CBOE and OCC claim that the public announcement of the price-reduction
decision was incidental to the exercise of their regulatory power to adjust the strike price. In
re NYSE Specialists Securities Litigation, 503 F.3d at 98. However, defendants CBOE and
OCC did not publicly announce this regulatory decision: the price reduction was privately
disseminated only to certain market participants, and that disclosure did not serve any
regulatory or governmental purpose. In addition to its quasi-governmental functions,
defendants CBOE and OCC have a private, for-profit business, and in the private disclosure
of the price-adjustment decision to the John Doe defendants, they were acting in their private
capacity and for their own corporate benefit. Therefore, this nonpublic announcement cannot
be construed as conduct under the delegated authority of the Securities Exchange Act of 1934
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(15 U.S.C. § 78a (2010)) and thus cannot be protected by the doctrine of regulatory
immunity. See Weissman, 500 F.3d at 1297 (“[B]ecause the law favors providing legal
remedy to injured parties, grants of immunity must be narrowly construed; that is, courts
must be ‘careful not to extend the scope of the protection further than its purposes require.’ ”
(quoting Forrester, 484 U.S. at 224 (1988))).
¶ 19 III. Defendants’ “Failure to State a Claim” Argument
¶ 20 Defendants argue that, even in the absence of regulatory immunity, the judgment should
be affirmed because plaintiff’s complaint failed to state a cause of action. The trial court did
not address this argument, as it improperly found that defendants CBOE and OCC had
absolute immunity in this case. Although the trial court did not reach this issue, we may
affirm on any basis in the record. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d
248, 261 (2004).
¶ 21 Plaintiff’s complaint alleged six fraud-based claims against defendants CBOE and OCC:
(1) violation of the antifraud provision in section 12(F) of the Illinois Securities Law (815
ILCS 5/12(F) (West 2002)), (2) violation of the antifraud provision in section 12(I) of the
Illinois Securities Law (815 ILCS 5/12(I) (West 2002)), (3) violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10a(a) (West 2002)),
(4) common law fraud, (5) aiding and abetting a violation by others of the antifraud provision
in section 12(G) of the Illinois Securities Law, and (6) injunctive relief. Plaintiff later
abandoned the latter two claims: aiding and abetting; and injunctive relief. Each of the four
remaining claims is based on the contention that defendants CBOE and OCC disseminated
information about the price adjustment to certain market participants but omitted to tell
plaintiff and the public at large. Defendants CBOE and OCC argue that they did not owe any
fiduciary or other duty of trust or confidence to plaintiff that required them to give plaintiff
this information.
¶ 22 Sections 12(F) and (I) of the Illinois Securities Act prohibits the following:
“F. To engage in any transaction, practice or course of business in connection with
the sale or purchase of securities which works or tends to work a fraud or deceit upon the
purchaser or seller thereof.
***
I. To employ any device, scheme or artifice to defraud in connection with the sale or
purchase of any security, directly or indirectly.” 815 ILCS 5/12 (F), (I) (West 2002).
¶ 23 These provisions are modeled after sections 17(a)(1) through (a)(3) of the federal
Securities Act of 1933; therefore, Illinois courts tend to look to federal precedent when
interpreting these provisions. 15 U.S.C. § 77q(a)(1)-(3); Tirapelli v. Advanced Equities, Inc.,
351 Ill. App. 3d 450, 455 (2004). Sections 17(a)(1) through (a)(3) require nearly the same
elements as section 10(b) of the Securities Exchange Act of 1934 and section 10b-5
promulgated thereunder. 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5 (2010); Tirapelli, 351
Ill. App. 3d at 455. To state a claim under section 10b-5, a complainant must allege that the
defendant (1) made a misstatement or omission, (2) of material fact, (3) in connection with
the purchase or sale of securities, (4) upon which the plaintiff reasonably relied and (5) that
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reliance proximately caused the plaintiff’s injuries. Tirapelli, 351 Ill. App. 3d at 455. These
same elements are required to state a claim under sections 12(F) and (I), the only exception
being that scienter, or intent or knowledge of wrongdoing, is required for liability under
section 12(I). Foster v. Alex, 213 Ill. App. 3d 1001, 1005 (1991) (scienter is not required
under section 12(F)).
¶ 24 Therefore, according to section 10b-5, a private claim under section 12(F) or (I) requires
either a misstatement or an omission of material fact. Because plaintiff did not allege a
misstatement by defendant CBOE or OCC, the question is whether there was an omission.
Omission in this case would require a breach of actionable duty by defendant CBOE or OCC
to disclose the price adjustment information to plaintiff. Stransky v. Cummins Engine Co.,
51 F.3d 1329, 1331-32 (7th Cir. 1995) (“Mere silence about even material information is not
fraudulent absent a duty to speak.”); Tricontinental Industries Ltd. v. Anixter, 184 F. Supp.
2d 786, 788 (N.D. Ill. 2002) (“An omission of material fact is only actionable under Rule
10b-5 if the defendant has a duty to disclose that fact.”). There are two situations in which
a duty to disclose arises: (1) when further disclosure is necessary to keep a prior statement
from being misleading (Tricontinental, 184 F. Supp. 2d at 788); and (2) in the context of a
“special or fiduciary relationship, which would raise a duty to speak” (internal quotation
marks omitted) (Weidner v. Karlin, 402 Ill. App. 3d 1084, 1087 (2010)).
¶ 25 An alleged 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.” In re Pfizer Inc. Securities Litigation,
584 F. Supp. 2d 621, 637 (S.D.N.Y. 2008). Plaintiff claims that in privately disseminating
information about the price adjustment only to certain insiders, defendants CBOE and OCC
made a material omission to plaintiff and the investing public. “ ‘[A]nyone in possession of
material inside information must either disclose it. . . , or, if he is disabled from disclosing
it in order to protect a corporate confidence, or he chooses not to do so, must abstain from
trading in. . . the securities concerned while such inside information remains undisclosed.’ ”
Vacold LLC v. Cerami, 545 F.3d 114, 121 (2d Cir. 2008) (quoting Securities & Exchange
Comm’n v. Texas Gulf Sulphur Co., 401 F.2d 833, 848 (2d Cir. 1968)). This duty is known
as the “disclose-or-abstain duty” because it refers to the rule that “one with a fiduciary or
similar duty to hold material nonpublic information in confidence must either ‘disclose or
abstain’ with regard to trading.” (Internal quotation marks omitted.) Vacold LLC v. Cerami,
545 F.3d 114, 121 (2d Cir. 2008) (quoting United States v. Teicher, 987 F.2d 112, 120 (2d
Cir. 1993)). Therefore, once this information was disclosed to insiders, defendants CBOE
and OCC had a duty to inform the public simultaneously or suspend trading of the IFN
options until this information was disclosed to the public. Instead, plaintiff claims that
defendants CBOE and OCC allowed themselves to profit from the increased trading volume.
Moreover, defendants’ duty of disclosure arose out of the fact that, by privately
disseminating this information, they were encouraging a market for IFN options. See
Affiliated Ute Citizens v. United States, 406 U.S. 128, 151-52 (1972) (where defendant was
“active in encouraging a market” for a certain stock and profited off the development of that
market, that defendant had a duty of disclosure (internal quotation marks omitted)).
¶ 26 In the case at bar, plaintiff claims that defendants CBOE and OCC knowingly shared the
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information about the price adjustment with only certain market participants, which allowed
those participants to profit from that information by selling the IFN put options to plaintiff,
which was unaware of the looming price reduction. Defendant CBOE also profited from
these trades, as it derives revenue from the trading of contracts on its exchange. Plaintiff
claims that in the private disclosure of the price adjustment, defendants CBOE and OCC
engaged in a course of business in connection with the sale or purchase of securities, that
worked a fraud or deceit upon the purchaser thereof, in this case, plaintiff. For these reasons,
plaintiff adequately pled a cause of action against defendants CBOE and OCC under section
12(F) of the Illinois Securities Law. 815 ILCS 5/12(F) (West 2002).
¶ 27 Additionally, plaintiff claims that defendants CBOE and OCC employed an artifice,
device or scheme to defraud in violation of section 12(I) of the Illinois Securities Law. 815
ILCS 5/12(I) (West 2002). The requirements of this claim are identical to section 12(F), with
the addition of a scienter, or intent or knowledge of wrongdoing. Tirapelli, 351 Ill. App. 3d
at 455; Foster v. Alex, 213 Ill. App. 3d 1001, 1005 (1991). As mentioned above, Illinois
courts tend to look to federal precedent in interpreting state law. Tirapelli, 351 Ill. App. 3d
at 455. Federal courts generally apply a relaxed analysis when a plaintiff asserts a scheme to
defraud. “[B]ecause courts acknowledge the difficulty of *** pleading a claim of market
manipulation, ‘where the exact mechanism of the scheme is likely to be unknown to the
plaintiffs, allegations of the nature, purpose, and effect of the fraudulent conduct and roles
of the defendants are sufficient for alleging participation.’ ” In re Enron Corp. Securities,
Derivative & ERISA Litigation, 235 F. Supp. 2d 549, 580 (S.D. Tex. 2002) (quoting In re
Blech Securities Litigation, 961 F. Supp. 569, 580 (S.D.N.Y. 1997)). In the case at bar,
plaintiff’s complaint identifies the nature, purpose, and effect of the fraudulent conduct,
namely, that defendants CBOE and OCC knowingly disclosed the price adjustment
information to the John Doe defendants, which allowed them to profit from that information
before it was disclosed to the public. The effect of the conduct was to injure plaintiff.
Therefore, plaintiff adequately pled a cause of action against defendants CBOE and OCC
under section 12(I) of the Illinois Securities Law.
¶ 28 To state a claim under the Illinois Consumer Fraud Act, the complaint must allege: (1)
a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely
on the deception, (3) the occurrence of the deception in the course of conduct involving trade
or commerce, (4) actual damage to the plaintiff, and (5) that the damage was caused by the
deception. 815 ILCS 505/10a(a) (West 2002); Barbara’s Sales, Inc. v. Intel Corp., 227 Ill.
2d 45, 72 (2007). The Consumer Fraud Act is to be interpreted liberally and is meant to
“eradicat[e] all forms of deceptive and unfair business practices.” Preston v. Kruezer, 641
F. Supp. 1163, 1168 (N.D. Ill. 1986). Like violations of sections 12(F) and (I) of the Illinois
Securities Law, in a consumer fraud action the plaintiff must actually be deceived by a
statement or omission. De Bouse v. Bayer AG, 235 Ill. 2d 544, 554 (2009); Lidecker v.
Kendall College, 194 Ill. App. 3d 309, 314 (1990) (duty to inform plaintiff of allegedly
omitted material facts is required for omission liability under common law fraud and Illinois
Consumer Fraud Act). However, defendants CBOE and OCC’s argument that they are not
liable under the Consumer Fraud Act because they did not communicate directly with
plaintiff is not persuasive. In the trading of securities over national exchanges, issuers and
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exchanges communicate with shareholders through public means. Whenever defendant
CBOE or OCC makes a public statement, it conveys information to the market and traders,
including plaintiff. As previously discussed, the private disclosure of the price adjustment
information would be a material omission and a deceptive act by defendants CBOE and
OCC. Plaintiff claims that defendants intended for the rest of the market to rely on the fact
that no such information had been privately disclosed. The deception occurred in the course
of trade or commerce, and it proximately caused actual damage to plaintiff. Therefore,
plaintiff adequately pled a cause of action against defendants CBOE and OCC under the
Illinois Consumer Fraud Act.
¶ 29 Finally, the elements for a common law fraud claim are: (1) a false statement of material
fact, (2) which was known or believed to be false by the person making the statement, (3)
intent by the person making the statement to induce another party to act, (4) justified reliance,
and (5) damage to the other party resulting from such reliance. Soules v. General Motors
Corp., 79 Ill. 2d 282, 286 (1980). To state a claim for fraudulent omission, the omission
“must be shown to have been done with the intention to deceive under circumstances
creating an opportunity and duty to speak.” Kurti v. Fox Valley Radiologists, Ltd., 124 Ill.
App. 3d 933, 938 (1984). The act of disclosing information to certain traders before
disclosing it publicly is a deceptive act with a purpose of allowing those selected market
participants to profit from the information. In not publicly disclosing the information,
plaintiff claims that defendants CBOE and OCC induced the noninformed traders to act.
Moreover, plaintiff claims that it was justified in relying on the fact that defendants CBOE
and OCC ran an efficient and open market and had not disclosed the decision of the
securities committee to any other participants. Finally, plaintiff claims that it was injured by
that reliance. Therefore, plaintiff adequately pled a cause of action against defendants CBOE
and OCC under common law fraud.
¶ 30 Because defendants CBOE’s and OCC’s conduct in their private dissemination of the
price adjustment information is not protected by the doctrine of regulatory immunity and
because plaintiff adequately pled multiple causes of action against defendants, the trial court
erred in granting defendants’ section 2-615 motion to dismiss by finding immunity.
Moreover, plaintiff should have at least been granted leave to amend its complaint. Section
2-616(a) of the Illinois Code of Civil Procedure provides that: “[a]t any time before final
judgment amendments may be allowed on just and reasonable terms, introducing any party
who ought to have been joined as plaintiff or defendant, dismissing any party, changing any
cause of action of defense or adding new cause of action *** which may enable the plaintiff
to sustain the claim for which it was intended to be brought.” 735 ILCS 5/2-616(a) (West
2010). Leave to amend should be granted unless it is apparent that, even after the
amendment, no cause of action can be stated. Weidner v. Midcon Corp., 328 Ill. App. 3d
1056, 1059 (2002) (“The test to be applied in determining whether the trial court’s discretion
was properly exercised is whether the allowance of the amendment would further the ends
of justice.”). Plaintiff’s initial complaint did plead multiple causes of action for which relief
may be granted; however, this complaint was drafted by its previous counsel. Plaintiff’s new
counsel conducted an investigation that has (1) led to the discovery of facts relevant to
plaintiff’s allegations concerning the issue of regulatory immunity and the other substantive
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claims and (2) added new substantive claims. Therefore, it is in the best interest of justice to
allow plaintiff to amend its complaint to include these additional facts and claims.
¶ 31 CONCLUSION
¶ 32 For the foregoing reasons, we find that (1) the doctrine of regulatory immunity does not
apply in this case because defendants CBOE’s and OCC’s conduct in providing inside
information was not done under their regulatory functions and (2) that the trial court erred
in granting defendants’ motion to dismiss. Therefore, we must reverse the judgment of the
trial court.
¶ 33 Reversed and remanded.
¶ 34 JUSTICE LAMPKIN, dissenting.
¶ 35 I dissent from the majority’s conclusion that defendants CBOE and OCC are not immune
from suit for plaintiff’s alleged claims. I would find that defendants’ announcement of their
decision to adjust the strike price was a regulatory function and, thus, plaintiff’s claims were
barred under the doctrine of absolute immunity.
¶ 36 A court–in accordance with well-established precedent–must look at the objective nature
and function of the activity in order to determine whether particular conduct is part of an
SRO’s regulatory function and, thus, entitled to immunity. Weissman, 500 F.3d at 1297.
Here, the act at issue is the announcement of a regulatory decision. When a court determines
whether conduct is regulatory, the court must not inquire into the methods or motives behind
the act; immunity is not dependent upon the propriety of the SRO’s specific acts incident to
the exercise of a regulatory power. In re NYSE Specialists Securities Litigation, 503 F.3d at
98. Accordingly, plaintiff’s allegations of impropriety concerning defendants’
announcement–i.e., that the announcement was tainted by fraud or was not sufficiently public
because defendants were motivated to generate profits–are irrelevant.
¶ 37 Regulatory immunity applies whenever “the plaintiff’s allegations concern the exercise
of powers within the bounds of the governmental functions delegated to [the SRO],” and the
court should not ask “whether the SRO is acting (or not acting) ‘consistent with’ the laws it
is supposed to apply.” Id.; see also Sparta Surgical Corp., 159 F.3d at 1215 (regulatory
immunity applies even when the SRO “acted in a capricious, even tartuffian manner which
caused [the plaintiff] enormous damage”). “[T]he immunity protects the power to regulate,
not the mandate to perform regulatory functions in a certain manner.” In re NYSE Specialists
Securities Litigation, 503 F.3d at 98. The functional approach to the analysis of regulatory
immunity is necessary because a plaintiff’s allegations of misconduct by an SRO can easily
mischaracterize the SRO’s acts or determinations as inconsistent with the powers or
functions delegated to the SRO. Id.¶ 38 The federal scheme of self-regulation grants SROs immunity in order to avoid the
disruptive and unworkable situation of having 50 different states establish 50 different
standards for SROs to meet in order to discharge their regulatory duties. Specifically, the
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absolute immunity afforded to SROs prevents courts and juries from defining an SRO’s
regulatory duties by a patchwork of common law decisions among various states that could
impose different and potentially inconsistent obligations on SROs. Sparta Surgical Corp.,
159 F.3d at 1215. Furthermore, precedent and common sense militate against carving out a
fraud exception to an SRO’s absolute immunity because recriminatory lawsuits would
disrupt the SRO’s exercise of its duties if plaintiffs could circumvent the absolute immunity
doctrine by concocting some claim of fraud. DL Capital Group, LLC, 409 F.3d at 98-99.
¶ 39 Here, the majority carves out an exception to SRO immunity for instances where the
alleged conduct is inconsistent with the SRO’s regulatory functions. Carving out such an
exception “all but swallow[s] the [immunity] doctrine whole,” “undermine[s] the immunity
doctrine,” and “is incompatible with the doctrine’s purpose.” In re NYSE Specialists
Securities Litigation, 503 F.3d at 98 & n.3. The majority’s decision to allow plaintiff to
proceed with its suit against CBOE and OCC thwarts the federal scheme of self-regulation
by gutting the absolute immunity afforded to SROs for their regulatory functions. As a result,
SROs may be dragged into court by private litigants and forced to expend resources in order
to justify their regulatory decisions anytime a private litigant couches an attack on an SRO’s
regulatory conduct as a claim alleging fraud or the premature disclosure of information to
certain individuals or insiders.
¶ 40 Because a court’s review of an order granting dismissal under section 2-615 of the Code
of Civil Procedure (735 ILCS 5/2-615 (West 2010)) accepts all well-pled facts as true and
draws reasonable inferences from those facts, a summary of the facts is warranted.
¶ 41 Plaintiff was an investment fund and invested in options on shares of the IFN, a mutual
fund that invested in the stock of companies located in India. Specifically, plaintiff invested
in put options, which gave plaintiff, as the purchaser of the option, the right but not the
obligation to put, or sell, shares of IFN to the option seller at a predetermined price, referred
to as the strike price. The higher the strike price in relation to the price of IFN shares, the
more valuable the right to require the option seller to buy the put at the strike price. IFN
options were traded at the CBOE, and the OCC cleared and settled such trades. Both CBOE
and OCC are SROs that exercise authority granted to them by the Securities and Exchange
Commission (SEC). As SROs, CBOE and OCC perform quasi-governmental functions, such
as, for example, deciding to adjust the strike price of options. CBOE and OCC are also
private organizations and engage in profit-making activities and generate revenue.
¶ 42 At the close of trading on Friday, December 17, 2010, plaintiff held approximately
25,000 IFN put options. After the market close on December 17, 2010, IFN announced a
distribution or dividend to shareholders of $3.78 per share. CBOE and OCC rules provided
for an adjustment to the strike price of options to account for extraordinary dividends. Such
dividends generally result in a downward adjustment to the option’s strike price to take into
account the negative effect the distribution of a corporation’s assets has on the value of its
stock.
¶ 43 According to its complaint, plaintiff predicted that no adjustment would be made to the
strike price of IFN options because plaintiff believed the market had already factored in the
anticipated year-end dividend in the price of its put options. Plaintiff also allegedly relied on
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one prior instance when a fund similar to IFN declared a dividend and no adjustment to the
strike price occurred. Consequently, on Monday, December 20, 2010, plaintiff purchased
more than 50,000 additional IFN put options. However, after the market close on December
20, 2010, CBOE and OCC publically announced a downward adjustment of $3.78 to the
strike price of IFN options, and plaintiff, as a result, suffered a loss.
¶ 44 Plaintiff’s allegations against defendants CBOE and OCC have undergone a
metamorphosis during this litigation. When plaintiff sought a temporary restraining order to
prohibit CBOE and OCC from implementing the IFN adjustment, plaintiff claimed both that
the adjustment decision was erroneous and that CBOE and OCC privately disclosed the
adjustment decision to unnamed persons before the public announcement. In response to
defendants’ arguments concerning absolute immunity, plaintiff discarded its challenge to the
propriety of the adjustment and proceeded to challenge only the alleged improper manner in
which CBOE and OCC disclosed the adjustment decision. However, in response to
defendants’ arguments that the announcement of the regulatory decision was afforded the
same absolute immunity as the regulatory decision, plaintiff sought to amend its complaint
to allege that, because CBOE and OCC earned transaction fees from options trades, those
fees motivated them to increase the number of options trades by engaging in a system
whereby they disclosed strike price adjustments to insiders. Moreover, at oral argument
before this court, plaintiff asserted that it does not challenge either the public announcement
of the adjustment decision or the manner of the announcement but, rather, the notion that
information about the adjustment was given to defendants’ members privately and they
profited from it.
¶ 45 Plaintiff, by characterizing its claim against CBOE and OCC as their participation in a
system to generate revenue by disclosing material information to insiders, attempts to
circumvent the doctrine of absolute immunity and distinguish this case from the well-
established precedent that has found absolute immunity for an SRO’s announcement of its
regulatory decisions and acts. See, e.g., Standard Investment Chartered, Inc., 637 F.3d at 116(noting that the public announcement of regulatory decisions is one of several regulatory
functions for which SROs have regulatory immunity); In re NYSE Specialists Securities
Litigation, 503 F.3d at 100 (holding that the “timing and method of the announcement of an
official [SRO] investigation is entitled to absolute immunity”); DL Capital Group, LLC, 409
F.3d at 98 (rejecting the plaintiff’s assertion that the manner in which the SRO announced
it decisions to suspend, resume or cancel trades was outside the scope of its regulatory
duties). See also Weissman, 500 F.3d at 1298-99, 1295 & n.3 (although a claim based upon
the SRO’s alleged advertising of an entity’s stock was not barred by absolute immunity
because that activity did not serve an adjudicatory, regulatory, or prosecutorial function, a
claim based upon the SRO’s dissemination of the entity’s fraudulent financial statements was
barred by regulatory immunity because the SRO was performing a regulatory function).
¶ 46 However, despite plaintiff’s creative pleading, there is no getting around the fact that
plaintiff essentially contests the manner of CBOE and OCC’s announcement of the
adjustment decision and, specifically, complains that the announcement was improper
because it was either leaked to certain individuals or was not sufficiently public. I would
conclude, as did the trial court, that the announcement of the strike-price adjustment was as
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much a part of CBOE and OCC’s regulatory activity as the adjustment decision itself. See
In re NYSE Specialists Securities Litigation, 503 F.3d at 100 (the court rejected the plaintiffs’
assertion that the private, premature announcement by the SRO, which allegedly tipped off
the SRO’s specialist firms about an investigation into their conduct, was an act that fell
outside the SRO’s regulatory functions). Although an action “may not appear to form the
heart of the regulatory functions delegated to *** an SRO, [the SRO is entitled to immunity
if the action is] central to effectuating the [SRO’s] regulatory decisionmaking.” Id. Just as
allegations of fraud or irregularity about the manner in which an SRO reached a regulatory
decision do not suffice to circumvent the doctrine of absolute immunity (Sparta Surgical
Corp., 159 F.3d at 1215; DL Capital Group, LLC, 409 F.3d at 98-99), so too an allegation
that an SRO announced a regulatory decision in a manner that failed to inform all market
participants simultaneously fails to move a claim outside the ambit of the SRO’s delegated
power and, thus, outside the scope of the SRO’s regulatory immunity.
¶ 47 Plaintiff’s allegations that CBOE and OCC announced the adjustment decision in a
particular way in order to enhance their profits are irrelevant to the regulatory immunity
analysis, which focuses instead on whether the announcement of a regulatory decision was
in furtherance of their regulatory function. Clearly, CBOE and OCC’s announcement of the
IFN adjustment decision readily falls within the ambit of the quasi-governmental functions
delegated to these SROs. Moreover, plaintiff’s complaints about SROs hiding their
misconduct behind the doctrine of regulatory immunity are unavailing because alternatives
to damage suits against SROs exist as a means to redress the alleged wrongful conduct. Any
misconduct here by CBOE and OCC may be redressed by the SEC, which retains formidable
oversight power and is authorized to, among other things, suspend or revoke an SRO’s
registration. See 15 U.S.C. § 78s(g), (h). It is a matter for the SEC to decide whether CBOE
and OCC’s announcement was improper. There is no private right of action against an
exchange for violation of its own rules. See Spicer v. Chicago Board of Options Exchange,
Inc., 977 F.2d 255, 259-61 (7th Cir. 1992). Although plaintiff could have pursued a cause
of action against the defendants who allegedly received inside information from CBOE and
OCC and traded on it, plaintiff chose not to pursue that remedy when plaintiff voluntarily
dismissed its complaint against those defendants.
¶ 48 Plaintiff cites Kundrat v. Chicago Board Options Exchange, Inc., No. 01 C 9456, 2002
WL 31017808 (N.D. Ill. Sept. 6, 2002), to support plaintiff’s position that CBOE and OCC’s
behavior in the case before us was not regulatory in nature. The Kundrat plaintiffs alleged,
inter alia, that the SRO defendants attempted to prevent the plaintiffs from earning
substantial trading profits by imposing severe reporting requirements on the plaintiffs’
clearing firms and circulated to clearing firms a blacklist letter, which allegedly falsely
accused the plaintiffs of potential trading abuses. Id. at *9. The Kundrat court deferred ruling
on a regulatory immunity argument and denied the defendant SROs’ motion to dismiss with
leave to reassert that argument later because the court thought it was unclear, at that stage of
the proceeding, whether the defendant SROs were performing regulatory acts. Id.
¶ 49 Plaintiff’s reliance on Kundrat is misplaced because there is no dispute in the instant case
that CBOE and OCC’s IFN adjustment was a regulatory act. Moreover, as discussed above,
CBOE and OCC’s announcement of the adjustment decision falls within the ambit of their
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regulatory functions.
¶ 50 Plaintiff also cites Opulent Fund, L.P. v. NASDAQ Stock Market, Inc., No. C-07-03683,
2007 WL 3010573 (N.D. Cal. Oct. 12, 2007), where the plaintiff alleged the SRO breached
a duty owed to market professionals when it negligently miscalculated the price of its
proprietary Nasdaq-100 index. Id. at *2. The court noted that the SRO created the proprietary
index, encouraged investors to create derivative instruments based on the index’s value,
disseminated that information, and received profits from selling the index market data. Id.
at *5. The court rejected the SRO’s immunity argument concerning its pricing conduct,
finding that the duty the SRO undertook to accurately calculate and disseminate an index
price did not function to protect investors but, rather, functioned to create a market and
increase trading. Id.
¶ 51 Opulent Fund, L.P., however, is distinguishable from the case before this court. Here,
CBOE and OCC’s adjustment of the IFN strike price was regulatory in nature and served to
protect investors by compensating for the fact that the extraordinary distribution declared by
IFN would reduce the value of the underlying IFN shares. Moreover, as discussed above,
CBOE and OCC’s announcement of the adjustment decision falls within the ambit of their
regulatory functions. Furthermore, the IFN was not CBOE’s or OCC’s proprietary product.
¶ 52 Because I would find that plaintiff’s suit against CBOE and OCC cannot proceed due to
their regulatory immunity, I do not address CBOE and OCC’s alternative arguments to affirm
the dismissal of the complaint based on plaintiff’s failure to plead valid causes of action.
¶ 53 Finally, I would find that the trial court did not abuse its discretion in determining that
it would have been futile to allow plaintiff to file its proposed amended complaint against
CBOE and OCC. “The question of whether to grant or deny leave to amend a complaint is
within the trial court’s discretion, and the court’s decision will not be reversed absent an
abuse of that discretion.” Weidner v. Midcon Corp., 328 Ill. App. 3d 1056, 1059 (2002).
“Leave to amend should generally be granted unless it is apparent that even after the
amendment no cause of action can be stated.” Id. The trial court properly concluded that any
amendment to the complaint against CBOE and OCC would be futile because plaintiff could
not plead around the doctrine of regulatory immunity. See Flores v. Palmer Marketing, Inc.,
361 Ill. App. 3d 172, 179 (2005).
¶ 54 Because CBOE and OCC are absolutely immune from the claims alleged in plaintiff’s
suit, I would affirm the judgment of the circuit court that granted CBOE and OCC’s motion
to dismiss plaintiff’s complaint without leave to amend.
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