University of Puerto Rico Retirement System v. Ocwen Financial Corporation

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12250
________________________
D.C. Docket No. 9:17-cv-80500-RLR
KAREN A. CARVELLI,
individually and on behalf of all others similarly situated,
Plaintiff,
UNIVERSITY OF PUERTO RICO RETIREMENT SYSTEM,
Lead Plaintiff,
Plaintiff - Appellant,
RYAN HUSEMAN,
Consolidated Plaintiff,
versus
OCWEN FINANCIAL CORPORATION,
RONALD M. FARIS,
MICHAEL R. BOURQUE, JR.,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 15, 2019)
Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
NEWSOM, Circuit Judge:
The University of Puerto Rico Retirement System purchased Ocwen
Financial Corporation common stock at an allegedly inflated price after a series of
statements by Ocwen’s officers implied that the company would emerge from a
regulatory mess. When Ocwen’s stock price instead began to fall, the Retirement
System brought a private securities-fraud action under §§ 10(b) and 20(a) of the
Securities Exchange Act of 1934 and the SEC’s Rule 10b-5, claiming that it had
detrimentally relied on Ocwen’s materially misleading statements and omissions
concerning the likelihood of achieving regulatory compliance. The district court
dismissed the Retirement System’s complaint, finding that it had failed to identify
any material misrepresentations or omissions or otherwise state a claim against
Ocwen for securities fraud. After conducting our own detailed review of the
challenged statements, we agree. Even considering the Retirement System’s
allegations in the most favorable light, as we must, its complaint falls short of
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alleging any actionable misrepresentations or omissions under § 10(b) and Rule
10b-5 (and by extension § 20(a)) or any other cognizable securities-law violation.
I
A
Ocwen is a financial-services company that focuses primarily on mortgage
servicing—in particular, by processing borrower payments, administering loan
loss-mitigation operations, and managing foreclosures. Between 2009 and 2012,
Ocwen grew from big to bigger, expanding its portfolio from approximately
350,000 loans with an unpaid principal balance of roughly $50 billion to more than
1.2 million loans with a balance north of $200 billion. To manage the considerable
amount of information required to administer all those loans, Ocwen used a
software called REALServicing. Unfortunately for Ocwen, REALServicing didn’t
really work—the software, as it turned out, was incapable of properly tracking
borrowers’ accounts and payments, and it recorded inaccurate information about
interest, late fees, escrow accounts, or completed payments for up to 90% of the
loans in the system.
According to the Retirement System’s complaint—the allegations of which
we accept as true for present purposes—these problems resulted from
REALServicing’s fundamental design flaws. For example, REALServicing
required the use of more than 10,000 comment codes and flags, but it had no
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complete data dictionary defining them, so Ocwen employees had no common
understanding of what the codes meant or how they should be utilized.
REALServicing also “lacked necessary automation and functionality,” and thus
required constant manual workarounds, which were prone to human error. And
perhaps most importantly, REALServicing “lacked the system capacity to process
the large number of loans acquired by Ocwen, resulting in long periods of system
unavailability.”
These systemic shortcomings caused Ocwen to fail to timely and accurately
apply borrower payments and maintain accurate account statements, to charge
unnecessary and unauthorized fees, to impose force-placed insurance on borrowers
who already had adequate coverage, and, worst of all, to initiate wrongful
foreclosures on numerous loans. An outside consultant found that REALServicing
had limited functionality and that Ocwen’s “lack of business process automation
had resulted in excessive manual processes,” which “posed significant risk in a
heightened compliance environment.” These and other similar issues prompted
Ocwen’s former Head of Servicing to describe REALServicing as “an absolute
train wreck” and to lament that “[e]very business unit in the entire organization[]
lacked sufficient controls to prevent mistakes and to detect when mistakes occur.”
Another former Head of Servicing similarly—if less colorfully—worried that
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Ocwen “could not service loans on REALServicing in compliance with applicable
laws.”
Those concerns were apparently well-placed; the Consumer Financial
Protection Board filed a civil action against Ocwen in 2012 for “violating
consumer financial laws at every stage of the mortgage servicing process.” Other
federal and state entities followed suit. Ocwen signed a consent order with 49 state
attorneys general in 2013 that “required Ocwen to provide over $2 billion in relief
to wronged homeowners and subject itself to a monitor . . . and a monitoring
committee”; a consent order with the New York Department of Financial Services
in 2014 that required Ocwen to adopt a “system of robust internal controls and
oversight” and pay $150 million in fines and restitution; and a consent order with
the California Department of Business Oversight in 2015 that required Ocwen to
pay a $2.5 million fine and stop acquiring new mortgage-servicing rights in
California until it could satisfactorily comply with the Department’s requests for
information.
The present suit arises from a series of statements that Ocwen made between
2015 and 2017, the years immediately following the federal and state regulatory
actions. During this period, Ocwen stated, among other things, that it had
“invested heavily in compliance and risk management,” such that its “operations
[were] now mature and delivering improved controls and results,” and that it
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“expect[ed] the next round of results from the National Mortgage Settlement
monitor to show that [it] ha[d] made progress in improving [its] internal testing and
compliance monitoring.” Ocwen also asserted that it “believe[d] it ha[d] effective
controls in place to ensure compliance with the California Homeowners Bill of
Rights and all single point of contact requirements under federal and state laws.”
In a 2015 earnings call with investors, President and CEO Ron Faris told investors
that Ocwen was “committed to correcting any deficiencies, remediating any
borrower harm, and improving our compliance management systems and customer
service.” And although Faris acknowledged that Ocwen would incur an expected
$50 million in regulatory monitoring costs for the year, he also assured investors
that “over time, as we demonstrate ongoing compliance and as the monitors roll
off, we should see these expenses decline.”1
Despite this optimistic outlook, the financial effects of Ocwen’s internal
problems began to bubble to the surface in February 2016, when it released its
Form 10-K for the 2015 fiscal year. Ocwen reported higher-than-expected
monitoring and compliance costs in connection with its settlements and other
regulatory and litigation matters. The company explained, in an accompanying
1
These statements—along with those found in the following pages and throughout this
opinion—are taken from the Retirement System’s 118-page, 293-paragraph complaint. See
Complaint, Karen A. Carvelli et al. v. Ocwen Fin. Corp. et al., 2018 WL 4941110, No.: 9:17-cv-
80500-RLR (S.D. Fla. Apr. 30, 2018). We have carefully reviewed each statement that the
Retirement System assails as an actionable misrepresentation; this opinion addresses illustrative
examples as necessary to our analysis.
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presentation, that it had incurred $170 million in monitoring expenses in 2015 and
that it expected elevated legal costs to persist in 2016. Following this news, the
price of Ocwen common stock dropped 58%, falling from an opening price of
$5.02 on February 29, 2016, to $2.11 on March 1, 2016.
Ocwen stock continued to plummet over the next few months, even while
company officials continued to maintain that the company’s difficulties were not
insurmountable. In July 2016, Ocwen’s Second Quarter Form 10-Q reported that
“[w]e are . . . intensely focused on improving our operations to enhance borrower
experiences and improve efficiencies, both of which we believe will drive stronger
financial performance through lower overall costs.” The 10-Q further stated that
“[w]e believe[] [our] significant investments in servicing operations [and] risk and
compliance infrastructure over recent years will position us favorably relative to
our peers.” And in a conference call that same month, Faris said that “[a]s a
Company we continue to make progress in resolving our legacy issues” and that
“this legal spend is now largely behind us.” He also stated that Ocwen “remain[ed]
focused on compliance, risk management, and service excellence” and was
“striving to regain approvals to be able to acquire [mortgage-servicing rights]
again” and to “resolve [its] remaining legacy, regulatory, and legal concerns.” On
news that Ocwen was working toward a settlement with its monitor from the
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California Department of Business Oversight, Ocwen common stock rose 7.1% to
close at $1.81 on July 28, 2016.
Over the next few months, Ocwen officials continued to express optimism
about the prospect of overcoming regulatory hurdles, and Ocwen’s stock prices
continued to climb. In an October 2016 press release, Ocwen’s board of directors
stated that the company “remain[ed] focused on putting legacy matters behind us”
and “continue[d] to progress towards a potential resolution with the California
Department of Business Oversight to end the current consent order and associated
third party auditor before year-end.” On October 27, 2016, Ocwen’s share price
rose 10.8% to close at $4.12.
But alas, trouble soon resurfaced. In February 2017, Ocwen spin-off
Altisource revealed that the CFPB was weighing a potential enforcement action
against it based on a violation of federal law that arose from REALServicing. And
around the same time, Ocwen admitted in its Form 10-K for the period ending
December 31, 2016, that it had spent $12.5 million in connection with
investigations.
A new wave of regulatory actions followed. In April 2017, a multi-state
mortgage committee representing more than 20 states and the North Carolina
Office of the Commissioner of Banks issued a cease-and-desist order that
prohibited Ocwen from acquiring new mortgage-servicing rights until the company
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proved that it could effectively manage its mortgage-escrow accounts. The CFPB
also got involved again, filing an action in the United States District Court for the
Southern District of Florida alleging that Ocwen had violated its earlier settlement
with the CFPB and the state attorneys general. See Complaint, Consumer Fin.
Prot. Bureau v. Ocwen Fin. Corp., et al., No. 9:17-cv-80496 (S.D. Fla. Apr. 20,
2017). The day the CFPB filed its complaint, Ocwen’s stock price fell 53.9%,
from $5.46 to $2.49.
B
Based on what they alleged to be Ocwen’s unrealistically optimistic
statements and its failure to disclose the extent of its software-related problems, the
Retirement System and several other investors filed a putative class action in
August 2017, asserting claims for securities fraud under § 10(b) of the Securities
Exchange Act and Rule 10b-5 as well as violations of § 20(a) of the Act. The
complaint claimed that “[d]espite knowing of [its] system failures and
REALServicing’s woeful ineffectiveness in servicing loans,” Ocwen continued to
“tout[] [its] purported compliance with the Regulator Settlements, its supposed
commitment to borrowers, and the effectiveness of [its] internal controls over
financial reporting, while at the same time failing to disclose that REALServicing
was a dysfunctional system incapable of servicing mortgages.” According to the
Retirement System, Ocwen made dozens of materially misleading statements and
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failed to disclose the extent of its problems, all the while knowing that it would be
cost-prohibitive to remediate the errors and properly reconcile its accounts.
Ocwen moved to dismiss, arguing that the complaint didn’t sufficiently
allege any material misrepresentations or omissions under the Securities Exchange
Act or Rule 10b-5. The district court agreed, concluding that each complained-of
representation was either immaterial puffery or opinion, an exempt forward-
looking statement, or a statement that the Retirement System had failed to allege
was actually false. 2 In the alternative, the district court concluded that the
Retirement System’s complaint “improperly trie[d] to re-cast Ocwen’s supposed
mismanagement and regulatory failures as false statements under 10b-5.” The
district court also explained that, because the Retirement System had failed to
adequately plead a § 10(b) violation, any claims against the individual defendants
under § 20(a) necessarily failed as well. The court dismissed the Retirement
System’s claims with prejudice, and this appeal followed.
II
Section 10(b) of the Securities Exchange Act of 1934 prohibits the “use or
employ, in connection with the purchase or sale of any security . . . [of] any
manipulative or deceptive device or contrivance in contravention of such rules and
2
Because the district court found that the Retirement System had failed to plead any material
misrepresentations, it didn’t address Ocwen’s argument that the Retirement System had failed to
adequately plead the element of loss causation.
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regulations as the [SEC] may prescribe as necessary or appropriate in the public
interest or for the protection of investors.” 15 U.S.C. § 78j(b). One such rule,
Rule 10b–5, makes it unlawful for “any person,” in connection with the purchase
or sale of a security, “to make any untrue statement of a material fact or to omit to
state a material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.” 17 C.F.R.
§ 240.10b-5(b). Although not explicitly laid out in the text, the Supreme Court has
implied a private right of action for investors under Rule 10b–5. See, e.g., Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 318–19 (2007).
To state a claim for securities fraud under Rule 10b-5, a plaintiff must allege
the following elements: “(1) a material misrepresentation or omission; (2) made
with scienter; (3) a connection with the purchase or sale of a security; (4) reliance
on the misstatement or omission; (5) economic loss; and (6) a causal
connection” between the misrepresentation or omission and the loss, commonly
called “loss causation.” Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1236–37
(11th Cir. 2008) (quotations omitted). Here, we are focused primarily on the first
element—whether the Retirement System properly alleged that Ocwen is
responsible for any material misrepresentations or omissions.
A misrepresentation or omission is material if, “in the light of the facts
existing at the time,” a “reasonable investor, in the exercise of due care, would
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have been misled by it.” FindWhat Investor Grp. v. FindWhat.com, 658 F.3d
1282, 1305 (11th Cir. 2011) (citation omitted). In other words, materiality
depends on whether a “substantial likelihood” exists that a “reasonable investor”
would have viewed a misrepresentation or omission as “significantly alter[ing] the
‘total mix’ of information made available.” S.E.C. v. Morgan Keegan & Co., 678
F.3d 1233, 1245 (11th Cir. 2012) (quoting TSC Indus., Inc. v. Northway, Inc., 426
U.S. 438, 449 (1976)). 3 When it comes to omissions specifically, the Supreme
Court has clarified that “[s]ilence, absent a duty to disclose, is not misleading
under Rule 10b–5.” Basic, 485 U.S. at 239 n.17. Rather, absent a duty, material
information needn’t be disclosed unless its omission would render misleading
other information that an issuer has disclosed. Matrixx Initiatives, Inc. v.
Siracusano, 563 U.S. 27, 44 (2011).
The question of materiality is not subject to a bright-line test, see id. at 30,
but instead depends on the specific circumstances of each case, including the
totality of information available to investors, see id. at 37–45. The materiality
requirement aims to strike a balance between protecting investors and allowing
companies to distribute information without perpetual fear of liability—in essence,
3
TSC Industries involved a challenge to a proxy statement arising under Rule 14a-9; however,
the Supreme Court has clarified that the discussion of materiality in that case is generally
applicable in securities litigation. See Basic Inc. v. Levinson, 485 U.S. 224, 231–32
(1988) (adopting the TSC Industries standard for Rule 10b-5 actions).
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to ensure that not every minor misstatement provides litigation fodder for
disgruntled investors.
Before moving on to discuss the particular statements—and omissions—at
issue in this case, we should pause briefly to explain the triple-layered pleading
standard that a private securities plaintiff like the Retirement System faces. To
survive a motion to dismiss, a securities-fraud claim brought under Rule 10b–5
must satisfy not only the run-of-the-mill federal notice-pleading requirements, see
Federal Rule of Civil Procedure 8(a)(2), but also the heightened pleading standards
found in Federal Rule of Civil Procedure 9(b) and the special fraud pleading
requirements imposed by the Private Securities Litigation Reform Act of 1995, 15
U.S.C. § 78u–4. Failure to meet any of the three standards will result in a
complaint’s dismissal. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th
Cir. 2005).
Rule 9(b) requires a plaintiff to “state with particularity the circumstances
constituting fraud or mistake”—which in the securities-fraud context, we’ve
explained, requires a plaintiff to allege specifically (1) which statements or
omissions were made in which documents or oral representations; (2) when, where,
and by whom the statements were made (or, in the case of omissions, not made);
(3) the content of the statements or omissions and how they were misleading; and
(4) what the defendant received as a result of the fraud. FindWhat, 658 F.3d at
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1296. The PSLRA—with some overlap—requires a complaint to “specify each
statement alleged to have been misleading” and “the reason or reasons why the
statement is misleading.” 15 U.S.C. § 78u–4(b)(1)(B). It also requires, “with
respect to each act or omission alleged,” that a complaint “state with particularity
facts giving rise to a strong inference that the defendant acted with the required
state of mind.” Id. § 78u–4(b)(2)(A). The required state of mind, we have held, is
an “intent to defraud or severe recklessness on the part of the defendant.”
FindWhat, 658 F.3d at 1299 (quoting Edward J. Goodman Life Income Tr. v. Jabil
Circuit, Inc., 594 F.3d 783, 790 (11th Cir. 2010)). And a “strong inference” is one
that is “cogent and at least as compelling as any opposing inference one could
draw from the facts alleged.” Tellabs, 551 U.S. at 324. Although scienter may be
inferred from an aggregate of factual allegations, it must be alleged with respect to
each alleged violation of the statute. FindWhat, 658 F.3d at 1296.
Turning to the claims at issue in this case, the Retirement System alleges
that Ocwen made numerous material misrepresentations and omissions because, at
the time the company was touting improvements and painting a rosy picture of its
future prospects, it remained out of compliance with regulatory settlements and,
more importantly, remained unable to remedy that noncompliance. After careful
review, we find that none of Ocwen’s statements rises to the level of an actionable
misrepresentation of material fact. Some statements are immaterial puffery, some
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are mere statements of opinion, some fall within the PSLRA’s safe-harbor for
forward-looking statements, and still others are simply not alleged to be false.
Additionally, we find that the Retirement System failed to allege any actionable
omissions—nothing that Ocwen failed to disclose rendered already-disclosed
information misleading in context. Matrixx, 563 U.S. at 44. We will explain, in
turn, our conclusions in more detail.
A
1
The district court determined that the majority of Ocwen’s statements were
nonactionable because they constituted immaterial “puffery.” Puffery comprises
generalized, vague, nonquantifiable statements of corporate optimism. See
Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund, 135 S. Ct.
1318, 1326 (2015) (differentiating between “mere puffery” and “determinate,
verifiable statement[s]” about a company’s products). The puffery “doctrine”
presumes a relatively (but realistically) savvy consumer—the general idea being
that some statements are just too boosterish to justify reasonable reliance. In
general parlance, “puffing” is “seller’s or dealer’s talk in praise of the virtues of
something offered for sale.” Webster’s Third New International 1838 (2002).
Perhaps closer to home for our purposes, it refers to an “expression of an
exaggerated opinion—as opposed to a factual misrepresentation—with the intent to
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sell a good or service.” Black’s Law Dictionary 1428 (10th ed. 2014). As Judge
Learned Hand once put it, “[t]here are some kinds of talk which no sensible man
takes seriously, and if he does he suffers from his credulity.” Vulcan Metals Co. v.
Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918). Think, for example,
Disneyland’s claim to be “The Happiest Place on Earth.” Or Avis’s boast, “We
Just Try Harder.” Or Dunkin Donuts’s assertion that “America runs on Dunkin.”
Or (for our teenage readers) Sony’s statement that its PlayStation 3 “Only Does
Everything.” These boasts and others like them are widely regarded as “puff”—
big claims with little substance.
While these slogans may be of relatively recent vintage, puffery itself—and
in particular its relevance to the law—is nothing new. The concept “derives from a
common-law defense to the tort of deceit or fraudulent misrepresentation.”
Restatement (Second) of Torts § 542 cmt. e (Am. Law Inst. 1977). The legal
origins of the term “puffery,” so far as we can tell, trace back at least as far as a
nineteenth-century English case involving a manufacturer’s promise to compensate
customers if they contracted the flu after properly using its “carbolic smoke
ball”—a rubber ball and tube that allowed users to inhale vapors purported to
prevent disease. See Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q,B. 256 (Eng.
Wales CA). After a customer who came down with the flu tried unsuccessfully to
collect, she sued the company. Id. At trial, the manufacturer defended by labeling
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its statement “mere puff”—sales talk. Id. Although the manufacturer lost because
the panel determined that it made a valid offer to contract by placing the promised
compensation in escrow, the panel’s opinion also accepted that some
advertisements—“mere puff”— clearly aren’t meant to be taken seriously. See id.4
Back to the present. While this Court has accepted the puffery defense in
the common-law context, we’ve yet to apply it in a reported securities-fraud case.
See Next Century Commc’ns Corp. v. Ellis, 318 F.3d 1023, 1028–29 (11th Cir.
2003) (characterizing a comment concerning “strong performance” as
nonactionable puffery in a Georgia fraud suit).5 We see no basis for not doing so,
however, and in fact the defense seems a particularly good fit in the securities
4
It’s possible that the roots of the puffery defense date back even farther. According to one
scholar:
A concept that became a basis of the puffery exclusion predates 1534, when a
compiler of English law gave the following example about the potential sale of a
horse. “If he be tame and have been rydden upon [by the potential buyer],
then caveat emptor [let the buyer beware].” The strange legal terms “puffer” and
“puffery” apparently became associated with commercial activities in the mid- to
late-18th Century. A “puffer” was a person secretly hired by a seller to bid up
auction prices (“puffing”), thereby creating a deliberate and material deception
that was outlawed by statute in many jurisdictions. By the 19th Century, the term
“puffery” (sometimes called “sales talk” or “dealer’s talk”) had transmogrified
into a contrary connotation as a legal defense for vindicating salespeople accused
of common law fraud and deceit.
Richard J. Leighton, Materiality and Puffing in Lanham Act False Advertising Cases: The
Proofs, Presumptions, and Pretexts, 94 Trademark Rep. 585, 616–17 (2004) (alteration in
original) (footnotes omitted) (citations omitted)). Regardless, suffice it to say that the defense
has been around a long time.
5
In one unpublished securities case, IBEW Local 595 Pension & Money Purchase Pension Plans
v. ADT Corp., we referred to issuer’s statements of “thoughtful,” “effective,” and “optimal,”
among other descriptors, as “puffery.” 660 F. App’x 850, 857 (11th Cir. 2016).
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context. Rule 10b-5 prohibits untrue statements of a material fact, with “material”
defined to mean something that a reasonable investor would view “as having
significantly altered the ‘total mix’ of information made available.” Morgan
Keegan, 678 F.3d at 1245 (citation omitted). Excessively vague, generalized, and
optimistic comments—the sorts of statements that constitute puffery—aren’t those
that a “reasonable investor,” exercising due care, would view as moving the
investment-decision needle—that is, they’re not material.
As the Third Circuit has explained, “[t]o say that a statement is mere
‘puffing’ is, in essence, to say that it is immaterial, either because it is so
exaggerated (‘You cannot lose.’) or so vague (‘This bond is marvelous.’) that a
reasonable investor would not rely on it in considering the ‘total mix of [available]
information.’” Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 200–01 (3d
Cir. 1990) (citation and internal quotation marks omitted). So too the Eighth
Circuit: “A statement is not material and is mere puffery, if it is ‘so vague and such
obvious hyperbole that no reasonable investor would rely upon [it].’” In re
Stratasys, Ltd. S’holder Sec. Litig., 864 F.3d 879, 882 (8th Cir. 2017) (citation and
internal quotation marks omitted); see also Eisenstadt v. Centel Corp., 113 F.3d
738, 746 (7th Cir. 1997) (“Mere sales puffery is not actionable under Rule 10b-
5.”). Statements that our sister circuits have recently deemed puffery in the
securities-fraud context include, for example, proclamations that a company
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“expect[s] to continue to allocate significant resources” to regulatory compliance,
Singh v. Cigna Corp., 918 F.3d 57, 64 (2d Cir. 2019), “generalized statements
about [a company’s] transparency, quality, and responsibility,” Emp’s Ret. Sys. v.
Whole Foods Mkt., Inc., 905 F.3d 892, 902 (5th Cir. 2018), and a description of
company products as being “unmatched” in “reliability, quality and connectivity,”
In re Stratasys, 864 F.3d at 882.
One final point—an asterisk of sorts—before proceeding to consider how
Ocwen’s statements stack up. Materiality is itself a mixed question of law and
fact—as the Supreme Court recognized in TSC Industries, a materiality
determination “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.”
426 U.S. at 450. That a statement smacks of puff is certainly a strong indicator of
immateriality. But—and here’s the caveat—it’s not necessarily a clincher. A
conclusion that a statement constitutes puffery doesn’t absolve the reviewing court
of the duty to consider the possibility—however remote—that in context and in
light of the “total mix” of available information, a reasonable investor might
nonetheless attach importance to the statement. Morgan Keegan, 678 F.3d at
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1245. 6 Accordingly, when considering a motion to dismiss a securities-fraud
action, a court shouldn’t grant unless the alleged misrepresentations—puffery or
otherwise—are “so obviously unimportant to a reasonable investor that reasonable
minds could not differ on the question of their importance.” Ganino v. Citizens
Util. Co., 228 F.3d 154, 162 (2d Cir. 2000) (citation omitted).
2
So, what of Ocwen’s statements promising, among other things, that it
continued “to devote substantial resources to . . . regulatory compliance and risk
management efforts,” that its investments in those areas were “now mature and
delivering improved results,” that it felt “good about the progress” it had made
towards its “national mortgage settlement compliance,” and that it had “taken a
leading role in helping to stabilize communities most affected by the financial
crisis”? The district court reasoned that these statements—and others like them—
weren’t the sort that a reasonable investor could possibly regard as significant
because “Ocwen never said it was in compliance with regulations but rather made
vague statements about its efforts towards compliance.” In short, Ocwen’s
statements were puffery.
6
The question whether a statement is material is at least conceptually broader than the question
whether a statement is puffery because the materiality inquiry includes consideration of the
context in which a statement was made and the circumstances in which a reasonable investor
would have heard it. See Matrixx, 563 U.S. at 43–44; TSC Indus., 426 U.S. at 449.
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The Retirement System raises two objections. First, it contends that
Ocwen’s statements can’t be nonactionable puffery because Ocwen did not
“genuinely or reasonably believe them.” Br. of Appellant at 22 (quoting IBEW
Local Union No. 58 Pension Trust Fund and Annuity Fund v. Royal Bank of
Scotland Grp., 783 F.3d 383, 392 (2d Cir. 2015)). This argument fails. Whether a
statement was made in bad faith or without a reasonable basis is irrelevant to the
question whether the statement is nonetheless so airy as to be insignificant.
Certainly, such considerations could (and very well may be) relevant to whether
the statements were made with the requisite level of scienter or whether the
statements are entitled to safe-harbor protection (more on that later)—but what
matters for materiality purposes is whether a statement is of a type that a
reasonable investor would find relevant to investment decision-making. Put
another way, “[t]he anti-fraud provisions of the securities laws are plainly
disinterested with immaterial statements, no matter the state of mind of the
speaker.” Edward J. Goodman, 594 F.3d at 796; see also W. Page Keeton, et
al., Prosser and Keeton on the Law of Torts § 109, at 757 (5th ed. 1984) (“The
puffing rule amounts to a seller’s privilege to lie his head off so long as he says
nothing specific, on the theory that no reasonable man would believe him or that
no reasonable man would be influenced by such talk.”).
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Second, and more concretely, the Retirement System argues that the
statements deemed puffery by the district court are, in fact, material. In our view,
though, the complained-of statements are quintessential puffery. Ocwen’s
proclamations that it was devoting “substantial resources” to its problems, with
“improved results,” as well as its boasts that it was taking a “leading role” and
making “progress” toward compliance are precisely the sorts of statements that our
sister circuits have—we think correctly—deemed puffery and found immaterial as
a matter of law. See, e.g., Singh, 918 F.3d at 64; Whole Foods Mkt., 905 F.3d at
902.
The Retirement System nonetheless insists that these statements become
materially misleading when considered in context—because nothing had changed
with REALServicing, it argues, promises about improvements and progress were
false, and significantly so. We disagree. As both parties acknowledge, the market
was well aware of Ocwen’s regulatory problems—the consent orders, the auditors,
and the fines were far from secret, and indeed were addressed openly in Ocwen’s
filings, investor calls, and press releases. To the extent that the Retirement System
contends that Ocwen had a duty to disclose the specifics of its technological
difficulties, its position is untenable. A duty to disclose information to investors
arises only when omission of that information would render misleading other
information that an issuer has disclosed. See Matrixx, 563 U.S. at 44. None of the
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statements that the Retirement System highlights here are misleading in the
absence of the disclosure of REALServicing’s issues because (as already
explained) a reasonable investor wouldn’t have regarded such corporate banalities
as relevant in deciding whether to invest in Ocwen in the first place.
What’s more, attending to the context of the complained-of statements, at
times, actually cuts the Retirement System’s argument out from under it. For
example, the Retirement System’s complaint highlights Ocwen’s announcement
that “[a]s a company we continue to make progress in resolving our legacy issues.”
But the complaint elides the remainder of the sentence, including the recognition
that “there is more work to be done.” That context matters in the materiality
analysis cuts both ways.
In sum, we conclude that a number of Ocwen’s statements can’t be classified
as material misrepresentations because no reasonable investor would have
considered them in making investment decisions—in short, because they weren’t
material.
B
Other challenged statements are nonactionable for a different-but-related
reason: they’re opinions. The Supreme Court has explained in the analogous § 11
context that statements of opinion are generally nonactionable because liability
attaches only in the case of an “untrue statement of a material fact.” Omnicare,
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135 S. Ct. at 1326 (quoting 15 U.S.C. § 77k(a)).7 Of course, simply because a
statement is couched as opinion—“I believe,” “I think,” or even “In my opinion”—
doesn’t foreclose a finding that it constitutes an express or implied
misrepresentation of fact. The Supreme Court has recognized that regardless of its
wishy-washy, subjective framing, a statement of opinion can be actionable in either
of two ways.
First, the Court has explained, every statement of opinion “explicitly affirms
one fact: that the speaker actually holds the stated belief.” Id. Thus, a statement of
opinion that “falsely describe[s] [the speaker’s] own state of mind” is an untrue
statement of fact—as to what the speaker actually believes—and accordingly will
“subject the issuer to liability (assuming the misrepresentation were material).” Id.
For example, the statement “I believe that the earth is flat” may be true even if the
earth is, in fact, round—but it can’t be true if the speaker actually believes that the
earth is round. Second, the Court pointed out, when statements of opinion “contain
embedded statements of fact,” a speaker may be liable “if the supporting fact she
7
Although neither the Supreme Court nor this Court has addressed the status of statements of
opinion under § 10(b) and Rule 10b-5, in Omnicare the Supreme Court adopted a standard for
determining whether a statement of opinion is actionable under § 11 of the Securities Act of
1933. See 135 S. Ct. at 1326. Because the core prohibition of Rule 10b-5(b) is worded in the
exact same language as § 11, see 15 U.S.C. § 77k(a) (providing a cause of action for “any
person” acquiring a security to sue the issuer and other designated individuals if the issuer’s
registration statement “contain[s] an untrue statement of a material fact” or “omit[s] to state a
material fact . . . necessary to make the statements therein not misleading”), we conclude that
Omnicare’s analysis controls here.
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supplied were untrue.” Id. at 1327. So, if a CEO states that “we believe that our
product, which contains a state-of-the-art 2019 gadget, is the best on the market,”
she can be liable if she knows that the product actually contains a refurbished 2015
gadget—in other words, if the embedded statement of fact (here, the gadget’s
newness) is false. Ocwen’s statements of opinion can be actionable only if they
fall into one of these two buckets. Let’s see.
The Retirement System complains that Ocwen asserted, among other things,
that—
• “[W]e believe that our competitive strengths flow from our ability to
control and drive down delinquencies through the use of proprietary
technology and processes and our lower cost to service.”
• “[We] believe significant investments in our servicing operations,
risk and compliance infrastructure over recent years will position us
favorably relative to our peers.”
• “[W]e expect the next round of results from the National Mortgage
Settlement monitor to show that we have made progress in improving
our internal testing and compliance monitoring.”
The district court concluded that these statements—and others like them—were
nonactionable because they expressed only “belie[f]” and “expect[ation].” On
appeal, the Retirement System contends that these statements violate Rule 10b-5
because they fall into the first bucket described above—i.e., because Ocwen didn’t
actually believe them. Here, though, the Retirement System runs into a pleading
problem: its complaint fails to allege that Ocwen didn’t believe that its efforts to
improve risk management and regulatory compliance were progressing or that its
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investment in compliance management was delivering improved results. Nor—
bucket two—did the Retirement System allege that Ocwen’s statements contained
embedded false statements of fact. Although the Retirement System contends that
its complaint provided a “strong inference” of falsity, none of Ocwen’s statements
of opinion are mutually exclusive of—or even inconsistent with—Ocwen’s alleged
knowledge that it had persistent software problems. Ocwen could have believed
both that REALServicing was a mess—even a “train wreck”—and that it had made
progress towards compliance.
At best, the Retirement System alleged facts giving rise to an inference that
Ocwen perhaps could or should have known that it would have difficulty
improving results. But that’s not enough—under the PSLRA and our precedent, a
plaintiff must “state with particularity facts giving rise to a strong inference that the
defendant acted with the required state of mind,” 15 U.S.C. § 78u–4(b)(2)(A)—
i.e., with an “intent to defraud or severe recklessness,” FindWhat, 658 F.3d at
1299. Although scienter may be inferred from an aggregate of factual allegations,
it must still be alleged with respect to each alleged violation of the statute. Id. at
1296. Here, the Retirement System failed to allege facts with particularity that
give rise to a strong inference that the defendants didn’t truly believe what they
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asserted in the statements in question, or that the statements embedded false facts.
Thus, Ocwen’s statements of opinion aren’t actionable under Rule 10b-5.8
III
There’s more. Several other statements, the district court found, were
forward-looking statements that are immune from liability under the Private
Securities Litigation Reform Act, which Congress enacted “[a]s a check against
abusive litigation by private parties.” Tellabs, 551 U.S. at 313. The Supreme
Court has explained that the “PSLRA’s twin goals” are “to curb frivolous, lawyer-
driven litigation, while preserving investors’ ability to recover on meritorious
claims.” Id. at 322. As a means of encouraging companies to share relevant
information with the public, in part by providing a measure of protection for those
disclosures, the Act includes a “safe harbor” provision that immunizes certain
“forward-looking” statements from liability.
A forward-looking statement is what it sounds like—a prediction, projection,
or plan. 9 The safe-harbor provision ensures that, in a private securities-fraud
8
The Retirement System also argues that Ocwen should be liable for material omissions. But
“[s]ilence, absent a duty to disclose, is not misleading under Rule 10b–5.” Basic, 485 U.S. at
239 n.17. And disclosure of material information is required under Rule 10b-5 “only when
necessary ‘to make . . . statements made, in the light of the circumstances under which they were
made, not misleading.’” See Matrixx, 563 U.S. at 43–44 (quoting 17 CFR § 240.10b–5(b)). The
Retirement System doesn’t allege that Ocwen had a specific duty to disclose specific
information, or that anything Ocwen said created a duty to disclose anything in particular. Thus,
it failed to state a claim for any material omission.
9
To be precise:
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action under Rule 10b-5, an issuer “shall not be liable with respect to any forward-
looking statement . . . if, and to the extent that”—
(A) the forward-looking statement is—
(i) identified as a forward-looking statement, and is
accompanied by meaningful cautionary statements
identifying important factors that could cause actual
results to differ materially from those in the forward-
looking statement; or
(ii) immaterial; or
(B) the plaintiff fails to prove that the forward-looking
statement . . . was made with actual knowledge by that person
that the statement was false or misleading.
(A) a statement containing a projection of revenues, income (including
income loss), earnings (including earnings loss) per share, capital
expenditures, dividends, capital structure, or other financial items;
(B) a statement of the plans and objectives of management for future
operations, including plans or objectives relating to the products or
services of the issuer;
(C) a statement of future economic performance, including any such
statement contained in a discussion and analysis of financial condition by
the management or in the results of operations included pursuant to the
rules and regulations of the Commission;
(D) any statement of the assumptions underlying or relating to any
statement described in subparagraph (A), (B), or (C);
(E) any report issued by an outside reviewer retained by an issuer, to the
extent that the report assesses a forward-looking statement made by the
issuer; or
(F) a statement containing a projection or estimate of such other items as
may be specified by rule or regulation of the Commission.
15 U.S.C. § 78u-5(i)(1); see also Harris v. Ivax Corp., 182 F.3d 799, 805 (11th Cir. 1999)
(describing a forward-looking statement as a statement of “fact only verifiable by seeing how [it]
hold[s] up in the future”).
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15 U.S.C. § 78u-5(c)(1). Before we consider whether any of Ocwen’s statements
qualify, we need to pause to address a threshold issue.
A
The Retirement System contends that the safe harbor doesn’t apply to
several of Ocwen’s statements because they were made within three years of a
cease-and-desist order regarding violations of Rule 12b-20. See 17 C.F.R.
§ 240.12b-20. To explain, the PSLRA’s safe-harbor provisions won’t shield a
forward-looking statement if, “during the 3-year period preceding the date on
which the statement was first made,” the company on whose behalf the statement
is made “has been made the subject of a judicial or administrative decree or order
arising out of a governmental action” that “requires that the issuer cease and desist
from violating the antifraud provisions of the securities laws.” 15 U.S.C. § 78u-
5(b)(1)(A)(ii). The Retirement System asserts that Rule 12b-20 is an “antifraud
provision” such that receipt of the related cease-and-desist order—which, as a
factual matter, all agree occurred—renders the safe harbor inapplicable to any of
Ocwen’s statements made in the ensuing three years.
We reject the legal premise that Rule 12b-20 constitutes an “antifraud
provision” within the meaning of the PSLRA. Rule 12b-20 provides that “[i]n
addition to the information expressly required to be included in a statement or
report” under §§ 12(b), 12(g), 13, and 15(d) of the Securities Exchange Act of
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1934 and accompanying regulations, “there shall be added such further material
information, if any, as may be necessary to make the required statements, in the
light of the circumstances under which they are made not misleading.” 17 C.F.R.
§ 240.12b-20. For a few reasons, we think it clear that this rule isn’t an “antifraud”
provision. Most conspicuously, the Rule doesn’t contain a scienter requirement.
By its very nature, an antifraud provision aims to counter fraud, and by its very
nature, fraud involves intentional wrongdoing. See Prosser & Keeton on Torts 728
(5th ed. 1984) (“[Fraud] entail[s] [a]n intention to induce the [victim] to act or to
refrain from action in reliance on the misrepresentation.”). Rule 12b-20, however,
is ambivalent as to the speaker’s state of mind; it bases liability solely on the
failure to “add[] such further material information . . . as may be necessary to make
the required statements . . . not misleading.” 17 C.F.R. § 240.12b-20. It makes no
reference, implicitly or explicitly, to knowledge—let alone intention—that the
“required statements” would be misleading absent additional “material
information.” Id. Indeed, the Rule would seem to apply equally to negligent (or
even innocent) misreporting as to an intentional wrong.
Not surprisingly, while this Court has yet to determine whether Rule 12b-20
is an antifraud provision or a mere reporting regulation, we have hinted that it is
the latter. In S.E.C. v. Monterosso, we explained that a district judge had found
defendants “liable for violating the antifraud provisions of the Securities and
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Exchange Act”—which we listed in a footnote as §§ 10(b) and 17(a)(1), as well as
Rule 10b–5(a). 756 F.3d 1326, 1332 & n.15 (11th Cir. 2014). We then stated
separately that defendants had been found liable for violations of (among other
things) Rule 12b–20, at least implying that we didn’t consider that Rule among the
ranks of the antifraud provisions. Id. at 1332; see also S.E.C. v. Goldfield Deep
Mines Co. of Nev., 758 F.2d 459, 462 (9th Cir. 1985) (recounting the district
court’s finding that appellants had “violated the registration provisions of the
Exchange Act [including] Rule 12b–20,” as well as, separately, “the antifraud
provisions [including] § 17(a) [and] § 10(b)”). The Retirement System points to
no court that has deemed Rule 12b-20 an “antifraud provision” within the meaning
of the PSLRA’s safe-harbor provision, and, for the reasons explained here, we
decline to become the first. 10
B
Having cleared away that bit of underbrush, let’s head back to the four
corners of the safe-harbor provision. The provision, if you’ll recall, is framed in
the disjunctive—it provides three independent, alternative means of inoculating
10
The Retirement System’s sole support for its otherwise unsubstantiated argument is one
footnoted hyperlink in its brief, leading to a mysterious document that lists Rule 12b-20 under
“general antifraud provisions” rather than “disclosure and reporting obligations.” Retirement
System argues that the document indicates that the SEC views Rule 12b-20 as an antifraud
provision and contends that this classification is entitled to deference. It’s absolutely impossible
to tell from the link or the brief, however, who wrote the document, when, or for what purpose.
Not quite an inkblot, but close. We won’t defer to so obscure a reference.
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forward-looking statements: those that are (1) accompanied by meaningful
cautionary language, (2) immaterial, or (3) made without actual knowledge of their
falsity. See 15 U.S.C. § 78u-5(c)(1).
The first prong “requires courts to examine only the cautionary statement
accompanying the forward-looking statement” and not “the state of mind of the
person making the statement.” Harris v. Ivax Corp., 182 F.3d 799, 803 (11th Cir.
1999) (quoting H.R. Conf. Rep. 104–369, at 44 (1995), reprinted in 1995
U.S.C.C.A.N. 730, 743). In other words, “if a statement is accompanied by
‘meaningful cautionary language,’ the defendants’ state of mind is irrelevant.” Id.
The second prong provides safe harbor for immaterial statements, 11 and the third
prong gives a defendant protection when the plaintiff “fails to prove” that a
forward-looking statement was made with actual knowledge that the statement was
false or misleading. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1284 n.7
(11th Cir. 1999).
After reviewing the complaint and the district court’s opinion, we agree that
several of Ocwen’s statements—like those that follow—fall within the safe harbor:
11
We won’t spend much time on the immateriality prong here because materiality, as we’ve
already explained, is an element on the merits of a securities-fraud claim. See Basic, 485 U.S. at
224. Despite this, the PSLRA’s safe harbor also explicitly provides protection for immaterial
forward-looking statements. 15 U.S.C. § 78u-5(c)(1)(A)(ii) (the immateriality sub-prong). We
assume that, in most cases, an investor pointing to an immaterial statement will have failed to
state a claim for securities-fraud to begin with. The PSLRA, however, seems to provide an extra
layer of protection, making doubly sure that investors won’t be held liable for immaterial,
forward-looking statements.
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• A January 2015 news release stating that “[w]e expect our ongoing
cooperation [with the California Department of Business Oversight] will
result in a satisfactory outcome for all parties.”
• An April 2015 earnings call stating that Ocwen expected “to continue to be
profitable and generate strong operating cash flow; continue to demonstrate
strong corporate governance, risk management and compliance
management; continue to refocus on improving operating margins in the
servicing business.”
• A July 2015 earnings call stating that Ocwen believed that its servicer rating
“should improve to levels similar to other large servicers” and would
“continue to provide strong servicing results.”
The Retirement System contends that these and similar statements aren’t shielded
under the safe harbor because (1) some weren’t accompanied by meaningful
cautionary language and were knowingly false and (2) others contained false
statements of present fact. We will consider each objection in turn.
1
We first consider the Retirement System’s contention that the statements
aren’t accompanied by meaningful cautionary language. While boilerplate won’t
suffice, the meaningful-cautionary-language obligation “does not require a listing
of all factors”—it’s enough that an issuer mention “important factors that could
cause actual results to differ materially from those in the forward-looking
statement.” Harris, 182 F.3d at 807 (citation omitted). “[W]hen an investor has
been warned of risks of a significance similar to that actually realized, she is
sufficiently on notice of the danger of the investment to make an intelligent
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decision about it according to her own preferences for risk and reward.” Id.; see
also Ehlert v. Singer, 245 F.3d 1313, 1320 (11th Cir. 2001).
While the Retirement System doesn’t dispute this premise, it asserts that
none of the cautionary language in the statements here could be “meaningful”
because Ocwen’s technology failures—which would preclude it from properly
servicing loans and achieving regulatory compliance—had already occurred. In
support of its argument, the Retirement System points to a D.C. Circuit decision
that held that “cautionary language cannot be ‘meaningful’ if it is misleading in
light of historical facts that were established at the time the statement was made.”
In re Harman Int’l Indus., Inc. Sec. Litig., 791 F.3d 90, 102 (D.C. Cir. 2015)
(internal citation and quotation marks omitted).
Certainly, cautionary language can’t be “meaningful” if it is nothing more
than a front for present problems. After careful review, however, we find that the
warnings accompanying Ocwen’s complained-of statements here were meaningful,
and none the less so because some of the warned-of risks related to events
unfolding in the public eye. For example, in a January 2015 news release
concerning regulatory action against it, Ocwen stated that “it [wa]s fully
cooperating with the California Department of Business oversight [] to resolve an
administrative action dated October 3, 2014” and that, going forward, it
“expect[ed] [its] ongoing cooperation w[ould] result in a satisfactory outcome for
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all parties.” Accompanying this prediction was language explaining that many of
Ocwen’s statements were forward-looking, and identifying “uncertainty related to
claims, litigation, and investigations brought by government agencies and private
parties regarding our servicing.” Essentially, Ocwen disclosed a present problem
(an administrative action against it), offered a forward-looking prediction (an
expectation of a satisfactory outcome), and cabined its expectation with relevant
cautionary language (the uncertainty that comes with agency actions and
investigations).
The other challenged statements are more of the same: It was no secret that
Ocwen faced ongoing regulatory action, and in each relevant disclosure Ocwen
warned in some detail that it faced a serious risk of “claims, litigation, and
investigations” regarding its “servicing, foreclosure, modification, origination and
other practices,” underscoring that the risk arose from “uncertainty related to past,
present or future investigations and settlements with state regulators, the Consumer
Financial Protection Bureau . . . , State Attorneys General, the Securities and
Exchange Commission . . . , the Department of Justice, or the Department of
Housing and Urban Development . . . .” Given the circumstances, we find this
language sufficient to warn an investor “of risks of a significance similar to that
actually realized” and provide adequate “notice of the danger of the investment to
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make an intelligent decision about it according to her own preferences for risk and
reward.” Harris, 182 F.3d at 807.
2
We next consider the Retirement System’s contention that several
purportedly forward-looking statements are ineligible for safe-harbor protection
because they contain false statements of present fact. Ocwen’s multiple statements
that it was “‘committed’ to correcting any servicing deficiencies,” the Retirement
System contends, “cannot be classified as ‘forward-looking’ because they are
statements about the Company’s present condition and intentions.” Further, it
asserts, any statements that Ocwen would “continue” to do something—continue to
“demonstrate progress” toward compliance or continue to “make appropriate
investments” in infrastructure, for example—focus on present rather than future
circumstances.
We addressed a similar argument in Harris v. Ivax Corporation. There,
investors alleged that a list of primarily forward-looking statements, sprinkled with
a few assertions of present facts, was misleading when taken as a whole. 182 F.3d
at 805–06. We held that the list fell within the safe harbor, despite the fact that it
was a “mixed bag,” containing “some sentences that [were] forward-looking and
some that [were] not.” Id. at 806. Key to this holding, however, was the investors’
allegation that the list as a whole was misleading. We clarified that our holding
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didn’t give companies carte blanche to shield present statements of fact in the safe
harbor, explaining that “a list or explanation will only qualify for this treatment” if
any present-tense statements were limited to “assumptions underlying a forward-
looking statement.” Id. at 807. Because “[f]orward-looking conclusions often rest
both on historical observations and assumptions about future events,” we
explained, “banish[ing] from the safe harbor lists that contain both factual and
forward-looking factors . . . would inhibit corporate officers from fully explaining
their outlooks.” Id. at 806.
Harris provides a helpful starting point for evaluating several of Ocwen’s
statements. As in Harris, the contested statements here “rest both on historical
observations and assumptions about future events.” Id. To be sure, unlike the
investors in Harris, the Retirement System challenges multiple individual
statements rather than an entire list. That makes our job both easier and harder.
On the one hand, it’s easier because some of the complained-of statements are
readily severable. To the extent that a lengthy statement includes distinct present-
tense and forward-looking components, it makes sense to afford safe-harbor
protection to the forward-looking portion (if applicable) and then evaluate the
present-tense statement on its own. See Spitzberg v. Hous. Am. Energy Corp., 758
F.3d 676, 692 (5th Cir. 2014) (joining “the First Circuit, Third Circuit, and Seventh
Circuit in concluding that a mixed present/future statement is not entitled to the
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safe harbor with respect to the part of the statement that refers to the present”)
(footnotes and citations omitted). This approach, we think, best effectuates the
purpose of the PSLRA, which extends safe harbor exclusively to statements that
are forward-looking in nature. See 15 U.S.C. § 78u-5(c)(1).
Take Ocwen’s statement that “[w]e are fully cooperating with the
Department of Business oversight[,] . . . .[and] expect our ongoing cooperation will
result in a satisfactory outcome for all parties.” The first portion—that Ocwen is
cooperating (currently, that is) to resolve a specific administrative action—is
framed entirely in the present tense and isn’t entitled to safe-harbor protection
simply because it is appended to a forward-looking clause.12 The second portion—
the expected result of a current action—is clearly forward-looking and, as we have
already deemed the accompanying cautionary language adequate, qualifies for the
safe harbor.
On the other hand, evaluating several of the individual statements in this
case also makes our job harder. That’s because a present-tense declaration is, in
some cases, an inextricable part, rather than an easily severed ancillary, of a
forward-looking statement. Take, for instance, the statement “we are committed to
12
Had the Retirement System alleged facts giving rise to a strong inference that Ocwen was not
cooperating with the California Department of Business oversight or had not dedicated
substantial resources towards satisfying its requests, then this portion of the statement could
become problematic. Since it didn’t, though, we move on.
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correcting any servicing deficiencies”—expressing a present-tense commitment to
a specific future goal. Or the promise that Ocwen would “continue to provide
strong servicing results”—implying both that servicing results are currently strong
and that Ocwen commits to provide strong results in the future. These types of
statements, when accompanied by meaningful cautionary language, are properly
sheltered under the safe-harbor because they convey management plans for yet-to-
be-proven future operations and goals. See Harris, 182 F.3d at 805 (describing a
forward-looking statement as a statement of “fact only verifiable by seeing how [it]
hold[s] up in the future”). It would be illogical to bar forward-looking statements
from protection simply because they implicitly communicate information about the
present—indeed, many plans and projections are conveyed in just this way. “I’ll
leave my desk in 5 minutes” communicates that I am presently at work. “I plan to
study hard in order to maintain my 4.0 GPA” conveys that I currently have perfect
grades. Even so, these statements, like many of Ocwen’s here, are intended, first
and foremost, to communicate a future plan.
We do not hold today that false misrepresentations of present fact can be
“smuggled” in under the cover of forward-looking statements. We do hold,
however, that when a forward-looking statement is of the sort that, by its nature,
rolls in present circumstances—that is, when a statement forecasts in a tentative
way a future state of affairs in which a present commitment unfolds into action—
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the statement isn’t barred from safe-harbor protection solely on that ground. After
thorough review, we conclude that Ocwen’s statements are either (1) forward-
looking and accompanied by meaningful cautionary language, or (2) contain
present-tense statements that (for reasons already explained) are immaterial puffery
or weren’t alleged to be false.
* * *
We recognize, of course, a fair amount of overlap (even, perhaps,
redundancy) in our discussions of puffery, opinions, and forward-looking
statements—all are different routes, with different scenery, that lead to the same
bottom-line question: Did Ocwen make a material misrepresentation of fact—that
is, a false representation that a reasonable investor would have relied on in light of
the total mix of information available? While in many cases this multifaceted
question may require jury deliberation, here its answer is clear. There is no
genuine question as to whether the statements the Retirement System points to
cross the line—each is easily either not material, not alleged to be a
misrepresentation, not a fact, or exempt under the PSLRA (and many statements
are more than one). Although numerous, the complained-of statements, in context,
provide no information on which a reasonable investor could reasonably rely.
Accordingly, we hold that the Retirement System has failed to properly
allege a material misrepresentation (or omission) and thus has failed to state a valid
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claim under § 10 and Rule 10b-5. See Mizzaro, 544 F.3d at 1236–37 (listing “a
material misrepresentation or omission” as a required element of a securities-fraud
claim under Rule 10b-5 claim) (quotation omitted).13
IV
That conclusion compels the next—namely, that the Retirement System also
fails to allege an actionable “control persons” violation against Ocwen officers Ron
M. Farris and Michael R. Bourque, Jr. under § 20(a) of the Securities Exchange
Act. A § 20(a) claim, which imposes derivative securities-fraud liability on certain
company individuals, has three elements: (1) a primary violation of the securities
laws—here, allegedly, of § 10(b) and Rule 10b-5; (2) individual defendants who
had the power to control the general business affairs of the company; and (3)
individual defendants who “had the requisite power to directly or indirectly control
13
We don’t assess the materiality of statements that the Retirement System failed to allege (in its
complaint) were actually false. For instance, the Retirement System repeatedly argues in its brief
that Ocwen’s statements about its progress toward regulatory compliance were materially
misleading because Ocwen failed to supply investors with “the undisclosed fact that [it] would
not be able to remediate ‘into compliance’” with the regulatory settlements. But ongoing
regulatory issues and “progress” aren’t mutually exclusive ideas. While the complaint alleges at
length that Ocwen knew it had serious problems with REALServicing, it doesn’t allege facts
strongly supporting the inference that it was impossible for Ocwen to comply with the terms of
the regulatory settlements by remedying REALServicing’s deficiencies or switching to another
software. Similarly, the Retirement System takes issue with Ocwen’s statement that it believed
that it had “effective controls in place to ensure compliance with the California Homeowner’s
Bill of Rights and all single point of contact requirements under federal and state laws.” But the
Retirement System never alleges that Ocwen didn’t believe or couldn’t have believed that it had
the proper controls in place to comply with the Bill of Rights or point-of-contact requirements.
By focusing the attack on REALServicing, the Retirement System’s complaint failed to allege
that Ocwen’s statements about internal progress or compliance were actually false.
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or influence the specific corporate policy which resulted in primary liability.”
Mizzaro, 544 F.3d at 1237 (quotation omitted); 15 U.S.C. § 78t(a). Here, because
we have determined that the Retirement System failed to adequately plead a
violation of § 10(b) and Rule 10b–5, there is no underlying “primary violation” on
which to hang a § 20(a) claim.
V
Lastly, the Retirement System asserts (in summary, afterthought fashion)
that Ocwen could be liable for securities fraud based on violations of SEC Rule
Item 303, 17 C.F.R. § 229.303(a)(3)(ii), or generally accepted accounting
principles established by the Financial Accounting Standards. Neither argument
withstands scrutiny.
Item 303 is entitled “Management’s discussion and analysis of financial
condition and results of operations” and falls within the SEC’s “Standard
Instructions for Filing Forms.” 17 C.F.R. § 229.303. The Rule requires that an
issuer’s filings “[d]escribe any known trends or uncertainties that have had or that
the registrant reasonably expects will have a material favorable or unfavorable
impact on net sales or revenues or income from continuing operations.” Id.
§ 229.303(a)(3)(ii). The Retirement System’s reliance on Item 303 is doubly
misplaced.
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As an initial matter, no court of which we are aware has found a private right
of action under Item 303, and the rule itself doesn’t seem to contemplate one. 14
Moreover, and in any event, the Retirement System’s assertion that a “violation of
Item 303 is actionable under Section 10(b), regardless of whether [the plaintiff] has
alleged other false or misleading statements” fails on the merits. The disclosure
obligations imposed by Item 303 and Rule 10b-5 are materially (no pun intended)
different—the former is far more sweeping than the latter. Item 303 requires
disclosure of any known “trend, demand, commitment, event or uncertainty” that is
likely to come to fruition, and, in the event that management can’t determine the
likelihood it must nonetheless disclose unless it determines there is no reasonable
likelihood of material effect on the registrant’s financial condition. See
Management's Discussion and Analysis of Financial Condition and Results of
Operations, 54 Fed. Reg. 22427, 22430 (May 24, 1989). Rule 10b-5, by contrast,
pegs any disclosure duty to materiality, requiring “a balancing of both the indicated
probability that the event will occur and the anticipated magnitude of the event in
14
Of course, Rule 10b-5 does not itself contain a private right of action, either. The Supreme
Court, however, has long since implied a private cause of action in Rule 10b-5. See Basic, 485
U.S. at 231–32. Not so for Item 303, though—and the regulation’s language (to say nothing of
the governing statute’s language) provides no indication that it entails a private right of action.
Cf. Alexander v. Sandoval, 532 U.S. 275, 288–89 (2001) (declining to find an implied private
right of action in Title VI and stressing that the search for Congress’s intent to provide a private
right of action begins and ends with the controlling statute’s text and structure).
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light of the totality of the company activity.” Basic, 485 U.S. at 238 (quotation
omitted).
Emphasizing precisely that difference, both the Third and the Ninth Circuits
have rejected the very argument that the Retirement System makes here—namely,
that a violation of Item 303 automatically gives rise to 10b-5 liability. 15 In Oran v.
Stafford, the Third Circuit refused to hold “that even if there is no independent
private cause of action under [Item] 303, the regulation nevertheless creates a duty
of disclosure that, if violated, constitutes a material omission under . . . Rule 10b–
5.” 226 F.3d 275, 287 (3d Cir. 2000). The disclosure requirement under Item 303,
the court explained, “varies considerably from the general test for securities fraud
materiality set out by the Supreme Court”—indeed, “[Item] 303’s disclosure
obligations extend considerably beyond those required by Rule 10b-5.” Id. at 288.
The Ninth Circuit has likewise held that an Item 303 violation doesn’t necessarily
give rise to Rule 10b-5 liability. See In re NVIDIA Corp. Sec. Litig., 768 F.3d
1046, 1054 (9th Cir. 2014). Item 303’s “reasonably likely to have a material
effect” standard, the Ninth Circuit said, differs from Rule 10b-5’s
15
So, very nearly, has at least one member of this Court. See Thompson v. RelationServe Media,
Inc., 610 F.3d 628, 682 n.78 (11th Cir. 2010) (Tjoflat, J., concurring) (observing that when a
plaintiff fails to plead “any actionable misrepresentation or omission” under Rule 10b–5, Item
303 can’t salvage the suit and calling the assumption that Item 303 imposes an actionable duty to
speak under Rule 10b–5 “generous”).
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“probability/magnitude test for materiality.” Id. at 1055.16 We agree. On its face,
Item 303 imposes a more sweeping disclosure obligation than Rule 10b-5, such
that a violation of the former does not ipso facto indicate a violation of the latter.
The Retirement System’s GAAP-based argument fares no better. The
relevant accounting principle, ASC 450/FAS 5, requires that an issuer disclose a
loss contingency when a loss is a “reasonable possibility”—that is, when a loss is
“more than remote but less than likely.” Financial Accounting Standards Board,
Statement of Financial Accounting Standards No. 5, Accounting for
Contingencies, para. 3, 10 (1975). The Retirement System asserts that Ocwen’s
“false and misleading statements and omissions” about its “purported ‘progress’
concerning its compliance” with the consent order and regulations “caused
material and knowing violations” of GAAP.
This conclusory assertion fails to state a claim. To start, the Retirement
System never explains precisely how Ocwen’s disclosures ran afoul of GAAP.
16
We note that the Second Circuit has held “that Item 303 imposes the type of duty to speak that
can, in appropriate cases, give rise to liability under Section 10(b),” because, given the
mandatory nature of the regulations, “a reasonable investor would interpret the absence of an
Item 303 disclosure to imply the nonexistence of ‘known trends or uncertainties . . . that the
registrant reasonably expects will have a material . . . unfavorable impact on . . . revenues or
income from continuing operations.” Stratte-McClure v. Morgan Stanley, 776 F.3d 94, 102 (2d
Cir. 2015) (quoting § 229.303(a)(3)(ii)). That Court also acknowledged, though, that an Item
303 violation did not necessarily give rise to a 10b-5 violation: “[A] violation of Item 303's
disclosure requirements can only sustain a claim under Section 10(b) and Rule 10b–5 if the
allegedly omitted information [also] satisfies Basic’s test for materiality.” Id. at 103. Thus, the
Retirement System’s claim would fail even under the Second Circuit’s more generous standard.
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And even assuming for argument’s sake that they did, an accounting violation
doesn’t necessarily give rise to Rule 10b-5 liability any more than an Item 303
violation does. See Malone v. Microdyne Corp., 26 F.3d 471, 478 (4th Cir. 1994)
(recognizing that although courts have often treated violations of financial
accounting standards as “indicative” of securities fraud, “[t]he prohibitions
contained in the GAAP and in Rule 10b-5” are “not perfectly coextensive”).17
VI
At the end of the day, the Retirement System has failed to allege an
actionable violation of § 10(b) of the Securities Exchange Act and Rule 10b-5 or
§ 20(a) of the Act. Accordingly, we affirm the district court’s dismissal of the
Retirement System’s complaint.
AFFIRMED.
17
The Retirement System contends that it should be granted leave to amend its complaint for a
fourth time on remand. But the Retirement System didn’t properly request leave to amend in the
district court. The Federal Rules provide that such a request shall (except in circumstances that
don’t apply here) be made by written motion to the district court specifying the precise relief
sought and the grounds therefor. See Fed. R. Civ. P. 7(b)(1) (emphasis added). As we have
explained, “[a] motion for leave to amend should either set forth the substance of the proposed
amendment or attach a copy of the proposed amendment.” Long v. Satz, 181 F.3d 1275, 1279
(11th Cir. 1999). Here, rather than file a motion for leave to amend, the Retirement System
included its request in the memorandum filed in opposition to Ocwen’s motion to dismiss but
neither attached the amendment nor set forth the substance of the proposed amendment. See id.
(rejecting a request for leave to amend for identical reasons). Accordingly, the Retirement
System isn’t entitled to amend its complaint.
46