IBEW Local No. 58 Annuity Fund v. EveryWare Global, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0041p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IBEW LOCAL NO. 58 ANNUITY FUND; ELECTRICAL ┐
WORKERS PENSION TRUST FUND OF IBEW LOCAL NO. │
58, DETROIT, MICHIGAN; IBEW LOCAL NO. 58, │
Plaintiffs-Appellants, │
│
v. > No. 16-3445
│
EVERYWARE GLOBAL, INC., et al, │
Defendants, │
│
JOHN K. SHEPPARD; BERNARD F. PETERS; DANIEL │
COLLIN; STEPHEN W. PRESSER; MONOMOY CAPITAL │
PARTNERS, LLC; MONOMOY EXECUTIVE CO- │
INVESTMENT FUND, L.P.; MONOMOY CAPITAL │
PARTNERS II, L.P.; MCP SUPPLEMENTAL FUND II, L.P.; │
MONOMOY GENERAL PARTNER, L.P.; MONOMOY │
GENERAL PARTNER II, L.P.; MONOMOY ULTIMATE GP, │
LLC; OPPENHEIMER & CO. INC.; CJS SECURITIES, INC.; │
TELSEY ADVISORY GROUP, LLC; IMPERIAL CAPITAL, │
LLC; BTIG, LLC; THOMAS J. BALDWIN; MICHAEL │
JURBALA; BARRY L. KASOFF; RONALD D. MCCRAY; │
WILLIAM J. KRUEGER; JOSEPH A. DE PERIO; RON │
WAINSHAL; MONOMOY CAPITAL PARTNERS, L.P.; MCP │
SUPPLEMENTAL FUND, L.P., │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:14-cv-01838—Algenon L. Marbley, District Judge.
Argued: February 1, 2017
Decided and Filed: February 21, 2017
Before: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges.
No. 16-3445 IBEW Local No. 58 Annuity Fund, et al. v. EveryWare Global, et al. Page 2
_________________
COUNSEL
ARGUED: Thomas Livezey Laughlin, IV, SCOTT+SCOTT, New York, New York, for
Appellants. David F. Graham, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee
Sheppard. C. Thomas Brown, ROPES & GRAY LLP, New York, New York, for Monomoy
Appellees. ON BRIEF: Thomas Livezey Laughlin, IV, SCOTT+SCOTT, New York, New
York, for Appellants. David F. Graham, Rachel B. Niewoehner, SIDLEY AUSTIN LLP,
Chicago, Illinois, for Appellee Sheppard. C. Thomas Brown, John N. McClain, III, ROPES
& GRAY LLP, New York, New York, Christopher G. Green, ROPES & GRAY LLP, Boston,
Massachusetts, for Monomoy Appellees. Steven J. Rosenberg, STEVEN J. ROSENBERG, P.C.,
Chicago, Illinois, for Appellee Peters. Jay K. Musoff, Jacobus J. Schutte, LOEB & LOEB, LLP,
New York, New York, for Appellee Jurbala. Roger P. Sugarman, KEGLER, BROWN, HILL
+ RITTER CO., L.P.A., Columbus, Ohio, Susan F. DiCicco, MORGAN, LEWIS & BOCKIUS
LLP, New York, New York, for Underwriter Appellees. Michael E. Swartz, Christopher H.
Giampapa, SCHULTE ROTH & ZABEL LLP, New York, New York, for Appellees Baldwin,
Kasoff, McCray, Krueger, De Perio, and Wainshal.
_________________
OPINION
_________________
ROGERS, Circuit Judge. In this private securities litigation, investors in a now-bankrupt
company called EveryWare sued EveryWare’s officers, directors, principal shareholders, and
underwriters, alleging that some defendants violated the Securities Exchange Act of 1934 by
materially misrepresenting EveryWare’s finances, and that some defendants violated the
Securities Act of 1933 by verifying those alleged material misrepresentations to be true, and by
failing to disclose other material facts, in a registration statement and a prospectus that they
signed in connection with an offering of EveryWare’s shares. The district court dismissed
plaintiffs’ complaint, reasoning that the Exchange Act claims fail because plaintiffs have not
alleged particularized facts giving rise to a strong inference that defendants acted with the
requisite scienter, and that the Securities Act claims fail because plaintiffs have not alleged any
well-pleaded material statement or omission in the registration statement or the prospectus. On
appeal, plaintiffs repeat the arguments that they made in the district court. Their arguments fail
here for reasons set out by the district court in its thorough opinion. Because the district court’s
No. 16-3445 IBEW Local No. 58 Annuity Fund, et al. v. EveryWare Global, et al. Page 3
opinion fully responds to plaintiffs’ arguments on appeal, we adopt the reasoning of the district
court, as indicated below, with respect to those issues necessary to resolve this appeal.
EveryWare Global, Inc., is an Ohio manufacturer of kitchenware. Plaintiffs purchased
EveryWare securities between May 21, 2013, and May 16, 2014. Plaintiffs alleged a “pump and
dump” scheme by EveryWare’s principal shareholders and officers to inflate the price of
EveryWare shares and then to sell their EveryWare shares before prices plummeted.
The district court opinion details the factual allegations in the complaint. In re
EveryWare Global, Inc. Sec. Litig., 175 F. Supp. 3d 837, 843–48 (S.D. Ohio 2016). Plaintiffs
mainly allege: (1) that CEO John Sheppard, in January 2013, released EveryWare’s financial
projections for 2013, despite actually knowing those financial projections to be false and
misleading; (2) that CEO Sheppard and CFO Bernard Peters, in August 2013, told investors,
with the intent to deceive, manipulate, or defraud, that EveryWare was on track to meet its
financial projections; and (3) that when EveryWare offered a portion of its shares to investors in
September 2013, and submitted a registration statement and a prospectus in connection with that
offering, EveryWare’s underwriters and directors signed those documents declaring them to be
true, even though those documents incorporated EveryWare’s financial projections and failed to
disclose material downward trends in the business.
Plaintiffs failed to plead successfully that EveryWare’s financial projections in January
2013 violated § 10(b) of the Securities Exchange Act of 1934, or the related SEC Rule 10b-5, for
the reasons that the district court fully explained: because those projections were forward-
looking statements, and because plaintiffs failed to plead facts that gave rise to a “strong
inference” that CEO Sheppard had “actual knowledge” that those projections were false or
misleading. We adopt that reasoning of the district court. 175 F. Supp. 3d at 851–54.1
Plaintiffs similarly failed to plead successfully that CEO Sheppard’s and CFO Peters’s
on-track statements in August 2013 violated § 10b or Rule 10b-5, for the reason that the district
court ultimately relied on: because plaintiffs failed to plead facts that gave rise to a “strong
1
We do not reach the two other reasons that some defendants argue on appeal to be independently
sufficient alternative grounds on which to hold that the projections did not violate § 10(b): that the projections were
not false or misleading; and that they were made by Sheppard, not by one of the principal shareholders.
No. 16-3445 IBEW Local No. 58 Annuity Fund, et al. v. EveryWare Global, et al. Page 4
inference” that defendants acted with “a mental state embracing intent to deceive, manipulate or
defraud.” We adopt that reasoning of the district court, also. 175 F. Supp. 3d at 856–61.2
Because plaintiffs have failed to meet the heightened pleading standards for defendants’
requisite scienter, they have failed to state a violation of § 10(b) or Rule 10b-5 upon which relief
can be granted, as the district court properly concluded. Because plaintiffs failed to state
substantive violations of the Securities Exchange Act, they have also failed to state secondary
liability for those substantive violations under § 20(a) of the Securities Exchange Act, as the
district court also properly concluded. 175 F. Supp. 3d at 861.
Plaintiffs also challenge the district court’s dismissal of their claims under the Securities
Act of 1933, repeating arguments rejected below that EveryWare’s directors and underwriters
signed as true a registration statement and a prospectus that contained material
misrepresentations. Plaintiffs have failed to state a violation of § 11 or § 12(a)(2) of the
Securities Act because they have not pleaded plausibly that those documents contained material
misrepresentations, as the district court correctly reasoned. 175 F. Supp. 3d at 869–73.3 Without
a substantive claim of violation of the Securities Act upon which relief can be granted, there can
be no claim of secondary liability under § 15 of the Securities Act, either, as the district court
also correctly reasoned. 175 F. Supp. 3d at 873.
The judgment of the district court is affirmed.
2
We need not, and accordingly do not, address the district court’s classification of those on-track
statements as not forward-looking. See In re EveryWare Global, Inc. Sec. Litig., 175 F. Supp. 3d at 854–56. We
also do not reach the arguments on appeal that some defendants advance as independently sufficient grounds on
which to conclude that the on-track statements did not violate § 10(b): that the on-track statements, like the
projections, were forward-looking statements that qualified for the PSLRA’s safe-harbor provision; that the on-track
statements were not sufficiently pleaded to be false or misleading under § 10(b); and that, in any event, no
questioned statement was made by one of the principal shareholders.
3
We need not, and accordingly do not, address the district court’s discussions of the statute of limitations
and standing. 175 F. Supp. 3d at 861–69.