Futureselect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc. ( 2014 )

EMLE
m <:z,r.»:r»z'¢309 P.3d 555 (2013). We granted review and now affirm
the VCourt of Appeals.
imputed to the parent companies. Further, FutureSelect alleges that both l\/lassl\/lutual and
Oppenheimer stood to gain profit from Tremont’s relationship with Madoff and were complicit
in the misrepresentations made to FutureSelect
8 Ernst & Young audited the Rye Funds from 2000 to 2003. During that time, FutureSelect
continued and enhanced its investinent in the Rye Funds in reliance on Ernst & Young’s audit
statements. FutureSelect believes that Ernst & Young falsely claimed that it followed generally
accepted auditing standards and that it improperly verified Madoff s trades purportedly made on
behalf of the Rye Funds. FutureSelect also claims that Ernst & Young omitted material facts
such as that it could not rely on l\/ladoff’ s auditor and that it had not actually audited l\/ladoff’ s
own books. Because of a required verification of investment in the Rye Funds and the way the
audit statements were addressed, FutureSelect alleges these misrepresentations were made
directly to it and the other partners of the Rye Funds.
5
FutureSelect v. Tremont Group Holcz’z``ng, Inc. et cil., No. 893 03~9
v ANALYSlS
1. Stancz'cirei'»ojv"rei)z``ew l l l
We review CR 12(b)(6i) dismissals de_novo. Kz``nnej) v. Cook, 159 Wash. 2d 837,
842, 154 P.3d 206 (2007) (citing Terzore v. AT&T Wz``reless Servs., 136 Wash. 2d 322,
329-30, 962 P.2d 104 (1998)). "Dismissal is warranted only if the court concludes,
beyond a reasonable doubt, the plaintiff cannot prove ‘any set of facts which would
justify recovery."’ Id, (quoting Teriore, 136 Wn.2d at 330). All facts alleged in the
complaint are taken as true, and we may consider hypothetical facts supporting the
plaintiffs ciaim_. Ia’. "'fherefore, a complaint survives a CR 12(b)(6) motion if any
set of facts could exist that would justify recovery." ,Ho/j”er v. Stczte, 110 Wash. 2d 415,
420, 755 P.2d 781 (1988) (citing Lczwson v. State, 107 Wash. 2d 444, 448, 730 P.2d 1308(1986``); Bowman v. john Doe Two, 104 Wash. 2d 181, 183, 704 P.2d 140 (1985)). But,
"[i]f a plaintiff" s claim remains legally insufficient even under his or her proffered
hypothetical facts, dismissal pursuant to CR 12(b)(6) is appropriate." C.?ormczn v.
GczrIoc/c, Iinc., 155 Wash. 2d 198, 215, 118 P.3d 311 (2005). .Similarly, we review a CR
12(b))(2) dismissal novo. lie re Estczte ofKom'on, 157 Wn.2d 20.6, 209, 137 P.3d 16(2006) 132 Wash. 2d 333, 340, 93713.2¢1 1069 (1997)).
II. Per.s"onal jurisdiction 7 l h l
©ppenheiiner argues that it lacks the requisite minimum contacts with
Washington andjour courts’ exercise of personal jurisdiction would offend due
process. See Suppl. Br. of Oppenheimer at 7. lt is i'nistaken. At this stage of
6
FutureSelect v. Tremont Group Hola’i``ng, Inc. et al.,No. 89303-9
litigation, the allegations of the complaint establish sufficient minimum contacts to _
survive a CR 12(b)(2) motion. H_owever, Oppenheimer may renew its jurisdictional
challenge after appropriate discovery has been conducted.
A. Specz'fic jurisdiction
For the exercise of specific jurisdiction under Washington’s long arm statute to
beproper, the defendant’s conduct must fall under RCW 4.28.185 and the exercise of
jurisdiction must not violate constitutional principles. Grange Ins. Ass ’n v. State, 110
Wash. 2d 752, 756, 757 P.2d 933 (1988) (citing Werner v. Werner, 84 Wash. 2d 360, 364,
526 P.2d 370 (1974)). "ln order to subject nonresident defendants and foreign
corporations to the in personam jurisdiction of this state under RCW 4.28.185(1)(a),"
Washington’s long arm statute, we must find the following factors: l
"(1) The nonresident defendant or foreign corporation must purposefully do
some act or consummate some transaction in the forum state; (2) the cause of
action must arise from, or be connected with, such act or transaction; and
(3) the assumption of jurisdiction by the forum state must not offend traditional
notions of fair play and substantial justice, consideration being given to the
quality, nature, and extent of the activity in the forum state, the relative
convenience of the parties, the benefits and protection of the laws of the forum
state afforded the respective parties, and the basic equities of the situation."
Shute v. Carnival Crnz``se Lz'nes, 113 Wn.2d763, 767, 783 P.2d 78 (1989) (quoting
Deutsch v. W. CoczstMcich. C0., 80 Wn.2d 7_07, 711, 497 P.2d 1311 (1972)). This
inquiry encompasses both the statutory and due process concerns of exercising
personal jurisdiction.
FutureSelect v. Tremont Groap Hola’z``ng, Inc. et al., No. 89303-9
FutureSelect alleges jurisdiction is proper under RCW 4.28.185(1)(a), which
extends jurisdiction arising out of "[t]he transaction of any business within this state,"
on the theory that Oppenheimer transacted business in Washington through Treinont,
its agent. RCW 4.28.185(1) explicitly permits Washington courts to exercise
jurisdiction over a principal based on the actions of its agent.9 We apply the Shate
factors to the allegations contained in FutureSelect’s complaint, which we accept as
true given the procedural posture of this case.
B. Shute factors
First, we find the complaint sufficiently establishes that Tremont acted as
Oppenheimer’s agent for purposes of the CR 12 inotion. The complaint asserts that
Oppenheimer (l) owned, directed, influenced management, and provided support
servicesl@ to Tremont; (2) directed Tremont to change its auditor from Ernst & Young
to KPMG; (3) placed its own president and director, who was also a vice president at
Massl\/lutual, on Tremont’s board of directors;“ and (4) actively managed and used its
9 ln relevant part, the statute provides that
(1) Any person, whether or not a citizen or resident of this state, who in person or
through an agent does any of the acts in this section enumerated, thereby submits said
person, and, if an individual, his or her personal representative, to the jurisdiction of the
courts of this state as to any cause of action arising from the doing of any of said acts. . . .
RCW 4.28.185 (emphasis added).
10 These services consisted of compliance, audit, finance, and human resources.
11 Specifically, FutureSelect alleges that "all five of Tremont’s board members became
l\/lassl\/.[uttial, Oppenheimer and/or OppenheimerFuiids employees." Clerk’s Papers at l8.
8
FutureSelect v. Tremont Groap Hola’z``ng, Inc. et al., No. 89303~9
image to help Tremont with marketing and soliciting investment activity. For the
purposes of the motion to dismiss, we find agency.
Accepting the agency relationship, we find the complaint also adequately
alleges that Tremont’s misrepresentations, which we presume without deciding were
made on Oppenheimer’s behalf and received in Washington, satisfy the first two
Shate factors. Tremont directed numerous representations at FutureSelect As a result
of these representations, FutureSelect maintained and contributed millions of dollars
to~' its initial investment in the Rye Funds. l\/luch of this occurred after Oppenheimer’s
acquisition of Tremont. Accordingly_, the allegations in the complaint sufficiently
establish that Oppenheimer transacted business with FutureSelect in Washington
through its agent.
We turn now to whether the assumption of jurisdiction offends traditional
notions of fairplay and substantial justice. Weighing (l) the q_uality, nature, and
extent of Oppenheimer’s activity in Washington, (2) the convenience of the parties,
(3) the benefits-land proteetion of Washington law, and (4) the basic equities of the
situation, we conclude it does not. l
l First, the quality, nature, and extent of Tremont’s activity in Washington were
significant The business relationship with FutureSelect extended from 2001 until
2008 ; involved the'solicitation, offer, and sale of securities; and resulted in ongoing
transfers of extremely large sums of money from Washington to Oppenheimer via
Tremont.
FutureSelect v. Tremont Groap Hola’z``ng, Inc. et al., No. 89303-9
Second, nothing in the record suggests that Washington courts exercising
jurisdiction would pose an undue burden on Oppenheimer.
Finally, the benefits and protections of Washington law gas well as the equities
of the situation cut squarelyin favor of our courts exercising jurisdiction. Our law
explicitly protects investors from fraud and misrepresentations made by sellers of
securities. S_ee RCW 21.20.010. Not allowing Washington courts_to enforce our
statutes and regulations against nonresident companies that solicit, offer, and sell
securities in this state would undermine the efficacy of this regulatory regime and
create a perverse incentive for principals to insulate themselves from liability by
operating exclusively through agents.
l Given these considerations, we reverse the trial court and remand for further
proceedings Though we leave open ``Oppenheimer’s ability to renew its motion, we
find the trial court dismissed preinaturely. Some liinited discovery and a resolution of
disputed jurisdictional facts are warranted. The trial court should determine whether
an agency relationship existed between Oppenheimer and Tremont at any point during
the relevant time period and, if so, whether jurisdiction is proper under the Shate
factors.
I]Il. Choice oflaw
Nextj we turn to whether Washington or New York law applies to this case.
Defendants argue that New York law applies because New i_t'ork has the more
significant relationship to the dispute and that dismissal on the pleadings was
10
FutureSelect v. Tremont Groap Holdt``ng, Inc. et al., No. 89303-9
warranted because there is no private cause of action under New York’s state security
law. On this record, we disagree. 12 The allegations in the complaint are sufficient to
survive the defendants’ CR l2(b)(6) motion.
A. Actttal conflict
As a preliminary matter, when choice of law is disputed, "there must be an
actual conflict between the laws or interests of Washington and the laws or interests of
another state before Washington courts will engage in a conflict of laws analysis."
Seizer v. Sesst``ons, 132 Wash. 2d 642, 648, 940 P.2d 261 (1997) (citing Barnsz``a'e v.
Sz``mpson Paper Co., 123 Wash. 2d 93, 100-01, 864 P.2d 937 (1994)). Here, an actual
conflict exists between the WSSA, ch. 21 .20 RCW, and New York’s Martin Act, N.Y.
GEN. BUS. LAW art. 23-A, §§ 352-359. Specifically, the WSSA provides for a private
right of action, see RCW 21 .20.430, while New York’s l\/lartin Act does not, see N.Y.
GEN. BUs. LAw art. 23-A, §§ 352-359.
B. St'gnzfcant relationship test
To settle choice of law questions, Washington uses the most significant
relationship test as articulated by Restatement (Second) of Conflz``ct of Laws § 145
(1971).13 johnson v. Spz'der Stagz``ng Corp., 87 Wash. 2d 577, 580-81, 555 P.2d 99712 lt is important to remember that for choice of law questions "the ultimate outcome, in any
given case, depends upon the underlying facts of that case." Soathwell v, Wi'a’i'ng Transp., ]nc.,
101 Wash. 2d 200, 204, 676 P.2d 477 (1984). This requires a subjective analysis of objective
factors. Ia'. Though we hesitate to articulate any categorical rules, such an analysis does not lend
itself readily to disposition on a CR 12(b)(6) inotion.
13 In relevant part, § 145 asks us to consider the following contacts:
ll
FutureSelect v. Tremont Group Hola't'ng, 1nc. et al., No. 89303~9
(1976). FutureSelect argues we should also formally adopt § 148, which refines the §
145 factors for the fraud and misrepresentation context. See Suppl. Br. of Resp’ts at
6. Defendants, on the other hand, urge us to take an orthodox interpretation of
Haberman v. Washington Pabli``c Power Sapply System, 109 Wash. 2d 107, 135-36, 744
P.2d 1032 (1987),1‘1 and apply § 145 exclusively. See Suppl. Br. of Tremont et al. at
5; Ernst & Young LLP’s Suppl. Br. at 2~3. We agree with FutureSelect
Haberman and § 145 provide a basic framework for choice of law questions.15
But we have not shied from applying a different, more specific section of the
Restatement when warranted by a particular tort. E.g., Wz``llt``ams v. Leone & Keeble,
Inc., 171 Wash. 2d 726, 735 n.6, 254 P.3d 818 (2011) ("On remand the Court ofAppeals
will have to review the trial court’s choice of law ruling, giving application to the
Restaternent (Secona’) ofConfZt``ct ofLaws § 146 [Personal lnjuries]"). Given the
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the
parties, and
(d) the place where the relationship, i:f any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the
particular issue.
RESTATEMENT § 145 .
14 ln Ha'berman, we were faced with a choice of law question involving the WSSA and we
resolved the issue by looking exclusively at § 145. 109 Wn.2d at 135-36.
15 lt is worth noting that in Haberman "[n]o party contend[ed] that another state’s securities act
applie[d]." Ia'. at 135. The question was whether the WSSA could apply to "an action brought
in a Washington forum where out-of-state parties are under [Washington’s] jurisdiction." Id. at
134. This is a different dispute than the one we face today, where parties are disputing whether
Washington or New ``York law applies.
12
FutureSelect v. Tremont Groap Holch``ng, Inc. et al., No. 89303-9
nature of misrepresentation we find the factors in § 148 to be more helpful than those
in § 145.
Previously, we developed a two-step analysis for the significant relationship
inquiry under § 145. Soathwell v. Wtdz'ng Transp., Inc., 101 Wash. 2d 200, 204, 676
P.2d 477 (1984). Our adoption of``§ 148 does not alter this approach. Accordingly,
first, courts will continue to evaluate the contacts with each interested jurisdiction. Ia'.
The "approach is not merely to count contacts, but rather to consider which contacts
are most significant and to determine where these contacts are found." Johnson, 87
Wn.2d at 581 (citing Bajj‘z``n Lana' Corp. v. Montt``cetlo i]\/[otor Inn, Ine., 70 Wn.2d 893_,
900, 425 623 (1967)1). Second, courts will continue to evaluate the interests and
public policies of potentially concerned jurisdictions Soathwell, 101 Wn.2d at 204.
"'l``he extent of the interest of each potentially interested state should be determined on
theba'sis, among other things, of the purpose sought to be achieved by their relevant
local law rules and the particular issue involved." Ia’. (citing Johnson, 87 Wn.2d at
ssz).i
l 1. Evalaatz'on of contacts
A'Under § 1481, to determine the jurisdiction with-the most significant relationship
to the dispute, we must consider (1) the place where plaintiff acted in reliance on the
representa.tions; 1(2) the place where the plaintiffreceived the representations; (3) the
place where the defendant made the representations; (4) the dornicile, residence,
nationality,' placelof incorporation, and place of business of the parties; (5) the place
13
FutureSelect v. Tremont Groap Holding, ]nc. et al., No. 89303~9
where a tangible thing, which is the subject of the transaction between the parties, was
situated at the time; and (6) the place where the plaintiff is to render performance
under a_contract that he has been induced to enter by the false representations of the
defendant. _REsTAi‘Ei\/[EIW\IT § 148. 1 1 1
1 l\/luch like in Soathwell, this case has "not presented this court with a record
that is sufficiently developed to enable us to undertake the factual analysis necessary
for proper resolution of the conflicts issue involved." 101 Wn.2d at 205. l§ut for
purposes of reviewing dismissal under a CR 12(b)(6) motion, we look to the
complaint and conclude that FutureS elect could show that (_1) Washington was the
place where FutureSelect acted in reliance on the representations, (2) Washington was
the place where FutureSelect received the representations, (3) Washington and New
York were the places where the defendants made the representations, ('4) Washington
and New York were the primary places of business of the parties, and (5) it cannot be
determined either way where FutureSelect was to render performance under the
contract that it had been induced to enter by the false representations of the
defendant. 16
"l``o complete this analysis, we must "consider which contacts are most
significant" in addition to finding out where they are found. Johnson, 87 Wn.2d at
16 The remaining factor_"the place where a tangible thing which is the subject of the transaction
between the parties was situated at the time," Restatement § 148-~is inapplicable because this
transaction did not involve a tangible thing.
14
FutureSelect v. Tremont Groap Ho/ct’ing, Inc. et al., No. 89303-9
581 (citing Ba]j”zn Lancl Corp., 70 Wn.2d at 900). The record is insufficient to permit
us to engage in this inquiry, and so we leave it open.
ln short, we find the contacts pleaded by FutureSelect to be sufficient to survive
the defendants’ CR l2(b)(6) motions on the choice of law issue. 17
2. Interests and public policies of jurisdictions
Next, we turn to the second step of our analysis, which asks us to evaluate the
interests and public policies of the jurisdictions Soathwell, 101 Wn.2d at 204. Here,
Washington has a more compelling interest in protecting its investors from fraud and
misrepresentation than New York.does in regulating sellers of securities that may
have perpetrated fraud or misrepresentation in another state.
At its core, this case does not involve a generalized regulation of securities
sales, but the weighing of specific representations and assurances that allegedly
targeted Washington investors. Washington has a strong interest in giving
Washington investors the benefit of Washington law and in requiring the sellers of
securities to comply with it.
We recognize the legislature’s directive to interpret the WSSA to promote
uniformity with federal securities law and those of others states. RCW 21 .20.900.
17 Ernst & Young encourages us to run a separate analysis for the choice of laws issue. This is
proper because the record may show different significant contacts for the claims against Ernst &
Young than for the claims against Tremont However, at this procedural stage, a single analysis
is sufficient because too many facts are in dispute and we must accept the allegations in the
complaint as true. Accordingly, we accept that Ernst & Young can be established to be a seller
of securities under the WSSA, as discussed in the analysis below, and so, the claims against
Ernst & Young have many of the same contacts as Tremont.
15
FutureSelect v. Tremont Groap Holct’ing', Inc. et al., No. 89303~9
But "[o]ur examination does not end there." Kz``nney, 159 Wn.2d at 844. "The
Washington Act is unique; special emphasis is placed on protecting investors from
fraudulent schemes." ]a’. at 844 (citing Hojj”er v. State, 113 Wash. 2d 148, 152, 776 P.2d
963 (1989) (Hojj”er ll)). lndeed, we have stated that "the ‘primary purpose’ of the Act
is ‘to protect investors from speculative or fraudulent schemes of promoters."’
Go2Net, Inc. gv. Freeyellow.com, Inc., 158 Wash. 2d 247, 253, 143 P.3d 590 (2006) _
(einphasis omitted) (quoting Cellalar Eng’g, Lta’. v. O’Neitl, 118 Wash. 2d 16, 23, 820
P.2d 941 (1991)). "The Act ‘is remedial in nature and has as its purpose broad
protection of the public."’ [a’. (emphasis oinitted) (quoting McClelZan v. Sancz'holm,
89 Wash. 2d 527, 533, 574 P.2d 371 (1978)). Applying New York rather than
Washington law, which would deprive FutureSelect of a private cause of action,
would necessarily frustrate this purpose. We decline to do so without clear evidence
that New York has the more significant relationship to the dispute, which does not
necessarily follow from this record.
IV. De/”znitt``on of "seller" ana'er WSSA
The final question at issue involves whether Ernst & Young can be considered
a seller under the WSSA. Ernst & Young argues that because FutureS elect refers only
to its audits and audit reports, which are purely professional services, and nothing
related to the sale of securities, the trial court properly granted its motion to disiniss.
Ernst & Young LLP’s Suppl. Br. at 17-18. We disagree.
16
FutureSelect v. Tremont Groap Hola’t``ng, Inc. et al., No. 89303-9
The WSSA imposes civil liability on anyone who sells a security in violation of
certain provisions of the act. RCW 21 .20.430(1). A "seller" includes any party
whose acts were a "substantial contributive factor" to the sale. Haberman, 109 Wn.2d
at 131. This is meant to be an expansive definition. Even so, we do require plaintiffs
to establish "‘something more"’ in addition to the provision of routine professional
services. Hines v. Data Line Sys., [nc., 114 Wash. 2d 127, 149-50, 787 P.2d 8 (1990).
Because it is possible that FutureSelect can establish the requisite "something more,"
dismissal on the pleadings was inappropriate.
ln Hines, we found that there was no evidence to indicate that the attorneys that
were being sued under the WSSA had any personal contact with any of the investors
or were in any way involved in the solicitation process. Ia’. at 149. There, we found
"[t]he advice given by Perkins Coie to Data Line was not a catalyst in the sales
transaction between Data Line and the investors." Ia’. at 150. This meant that Perkins
Coie could not be held liable as a seller. Ia’.
The situation here is different. Among other things, Hines was resolved on
summary judgment, not on a CR 12(b)(6) motion. Ia'. at 148. Because the question of
whether someone was a substantial contributive factor is "necessarily a question of
fact," Haberman, 109 Wn.2d at 132, it is not easily resolved on the pleadings as long
as the complaint contains sufficient allegations.
Here, FutureSelect has met this requirement. lts complaint alleges that
FutureSelect "would not have invested in the Rye Funds if the funds were not
17
FutureSelect v. Tremont Groiq) Holct'ing, [nc. et al., No. 89303-9
audited" by Ernst & Young. Clerk’s Papers at 37. Moreover, FutureSelect has also
alleged that Ernst & Young "knew that its audits would be used by Tremont to solicit
investors [and] also knew and intended that current investors would rely on the audits
when deciding to maintain and increase their investments in the Rye Funds." Id.
Finally, Ernst & Young asked FutureSelect to verify its investment in the Rye Funds
and addressed its audits directly to the partners of the Rye Funds, which included
FutureSelect Ict. at 23.
FutureSelect is entitled to an opportunity to prove what it alleged. We reverse
the trial court’s CR 12(b)(6) dismissal.
CONCLUSION
Because FutureSelect has met its initial burden of production, we reverse the
trial court’s dismissal on the pleadings On remand, the trial court shall (l) allow
limited discovery on the jurisdictional issue and, if necessary, conduct a jurisdictional
hearing to resolve any contested material facts and (2) give the parties an opportunity
to fully develop the record surrounding the sale of securities to FutureSelect so that
the trial court can properly consider the Restatement § 148 factors as they apply to the
various defendants and determine whether Ernst & Young’s acts were a substantial
contributing factor to FutureSelect’s decision to continue investing in the Rye Funds.
We affirm the Court of Appeals and remand to the trial court for further proceedings
consistent with this opinion.
18
FutureSelect v. Tremont Groap Hola'z``ng, lnc. et al., No. 89303-9
(Qi@t/iee@/P / n /
j
WE CONCUR:
swaine/iac il @, Q
/ '/'
strategic
(/
f
t»»t»109 Wash. 2d 107, 130~31, 744 P.2d 1032, 750 P.2d 254 (1987).
But one year after Haberman, the United States Supreme Court decided
Pinter v. Dahl, 486 U.S. 622, 653-54, 108 S. Ct. 2063, 100 L. Ed. 2d 658(1988). Pinter construed the word "sell[er]" in the related federal securities
FutureSelect v. Tremont Groap Hola’t'ng, Inc. et al., No. 893 03-9
(Gordon l\/lcCloud, J., Concurring)
law, and it expressly rejected the broad interpretation that most circuit courts
had adopted under federal law and that we had adopted under state law.
Predictably, in 1989, we considered a post-Pinter challenge to the
Haberman court’s interpretation of our state’s securities law. ln Ho]j"er v.
State, 113 Wash. 2d 148, 152, 776 P.2d 963 (1989), we rejected the argument
that the Supreme Court’s analysis was more persuasive than our own and
adhered to the "substantial contributive factor" interpretation of "sell[er]" as
adopted in Haherman. The dissent in Hojj”er, by contrast, asserted that
"RCW 21 .20,430(1), by its plain language, requires privity of the seller and
the person buying the security." Ia'. at 153 (Pearson, J., dissenting). lt also
noted that "[t]he underpinnings of Haherman came from lower federal court
decisions which are no longer authoritative in light of the Pinter ruling." Ia'.
The Hojj’er dissent made good sense at the time it was written. The
very federal cases upon which the Haberman decision relied were expressly
disapproved by Pinter. ln fact, that dissent makes even more sense now, 27
years later, as even more circuits that the Haberman majority relied on have
repudiated their earlier adoption of the nontextual "substantial contributive
factor" test. For example, the Haberman majority explicitly relied on a
Ninth Circuit case in adopting our test. Haherman, 109 Wn.2d at 127 (citing
FutureSelect v. Tremont Groap Holdt'ng, Inc. et al., No. 89303-9
(Gordon l\/lcCloud, J., Concurring)
Ana’erson v. Aarotek, 774 P.2d 927, 930 (9th Cir. 1985) (per curiam)). ln
2007, that case was repudiated by the Ninth Circuit in light of Pinter. Sec.
& Exch. Comm ’n v. Phan, 500 P.3d 895, 906 n.l3 (9th Cir. 2007).
Nevertheless, the majority is absolutely correct that Haberman is
controlling, not the Hoyj”er dissent. l therefore concur in the majority’s
decision. ln light of Haberman and Ho]j”er, FutureSelect has sufficiently
alleged that Ernst & Young was a "sell[er]" to avoid dismissal on the
pleadings.
FutureSelect v. Tremont Groap Holcz't``ng, Inc. et al., No. 89303~9
(Gordon l\/lcCloud, J., Concurrence)
4a hen t