DocketNumber: No. 11 Civ. 3658
Citation Numbers: 910 F. Supp. 2d 561
Judges: Scheindlin
Filed Date: 11/14/2012
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
I. INTRODUCTION
Lead plaintiffs Danske Invest Management A/S and Pension Funds of Local No. One (collectively, “Lead Plaintiffs”) bring this action on behalf of themselves and others similarly situated against Longtop Financial Technologies, Ltd. (“Longtop”), several of its officers, its auditor Deloitte Touche Tohmatsu CPA Ltd. (“DTTC”), and its auditor’s parent company Deloitte Touche Tohmatsu Limited. The Class consists of all persons and entities who purchased American Depositary Shares (“ADSs”) of Longtop Financial Technologies, Ltd. on the New York Stock Exchange (“NYSE”) during the period June 29, 2009 through and including May 17, 2011 (the “Class Period”) and who were allegedly damaged thereby. Lead Plaintiffs assert four causes of action for: violation of Section 10(b) of the Exchange Act
II. BACKGROUND
Longtop is a Cayman Islands corporation with principal offices in Hong Kong and Xiamen, China,
Longtop’s access to the capital markets was aided by DTTC.
The Complaint alleges that Longtop’s above-market operating and gross margins were the result of various fraudulent actions taken by Longtop, including disguising its true cost of revenue and employee-related expenses through a series of off-balance sheet transfers to a wholly owned entity, Xiamen Longtop Human Resources (“XLHRS”); falsifying its cash position and bank loan balances by manipulating and lying about its bank records; and interfering with DTTC’s audits.
In the wake of these reports, Longtop’s share- price declined by approximately 26.4%.
This, rally was short-lived, as market analysts continued to publish reports (collectively with the Citron and Bronte reports, the “Short Seller Reports”) speculating that Longtop was using the purportedly unrelated XLHRS to hide its losses and inflate its gross margins.
The Resignation Letter relates the following narrative. DTTC determined that follow-up visits to certain Longtop banks were warranted in order -to complete Longtop’s 2011 audit.
The NYSE began delisting proceedings against Longtop on July 22, 2011, and delisted Longtop on August 29, 2011,
The Complaint alleges that DTTC violated a variety of accounting rules and principles found in the interpretive Statements on Auditing Standards (“AU”) that are alleged to form a part of the GAAS.
The Complaint alleges that DTTC failed to exercise the “[d]ue professional care” and “professional skepticism” required by the GAAS.
B. Red Flags
The Complaint additionally alleges that even a “perfunctory” review by DTTC of the relationship between Longtop and XLHRS would have revealed the following six “red flags”: (1) that XLHRS was formed shortly before Longtop’s IPO;
III. STANDARD OF REVIEW AND PLEADING STANDARD
A. Rule 12(b)(6) Motion to Dismiss
A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
The court evaluates the sufficiency of the complaint' under the “two-pronged approach” suggested by the Supreme Court in Ashcroft v. Iqbal.
B. Heightened Pleading Standard under Rule 9(b) and the PSLRA
Private securities fraud claims are subject to ■' a heightened' pleading standard.
[i]n any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.62
A plaintiff has alleged facts giving rise to a “strong inference” of scienter “only if a reasonable person would deem the inference of scienter cogent and . at least as compelling as any opposing inference one could draw from the facts alleged.”
specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, ... state with particularity all facts on which that belief is formed.66
C. Leave to Amend
Whether to permit a plaintiff to amend its complaint is a matter committed to a court’s “sound discretion.”
IV. APPLICABLE LAW
A. Section 10(b) and Rule 10b-5 of the Securities Exchange Act
Section 10(b) of the Securities Exchange Act of 1984 makes it illegal to “use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe ....”
1. Misstatements or Omissions of Material Fact
In order to satisfactorily allege misstatements or omissions of material fact, a complaint must “state with particularity the specific facts in support of [plaintiffs’] belief that [defendants’] statements were false when made.”
“ ‘[A] fact is to be considered material if there is a substantial likelihood that a reasonablé person would consider it important in deciding whether to buy or sell shares [of stock].’ ”
2. Scienter
A plaintiff may plead scienter by “alleging facts , (1) showing that the defendants had'both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness.”
However, “‘[w]here motive is not apparent, it . is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater.’ ”
An outside auditor will typically not have an apparent motive to commit fraud. Consequently, “ ‘[f|or recklessness on the part of a non-fiduciary accountant to satisfy securities fraud scienter, such recklessness must be conduct that is highly unreasonable, representing an extreme departure from the standards of ordinary care.’ ”
3. Causation
Causation (i.e. reliance and loss causation) is not at issue in this motion. Therefore, I will not address it here.
V. DISCUSSION
The gravamen of the claim against DTTC is that DTTC’s audit opinions were material misstatements that, in light of Longtop’s high gross margins and the alleged red flags, DTTC issued recklessly. The instant motion contends that the Complaint fails to adequately allege scienter, and that DTTC did not make a material misrepresentation because DTTC’s auditor statements were opinions,- ■ which DTTC reasonably believed at the time they were made.
A. Scienter
For the purposes of this motion, the appropriate standard for evaluating the allegations of scienter is whether, viewed holistically, the facts alleged give rise to a strong inference that DTTC was reckless to a point approximating an actual intent to aid Longtop’s deception. Such inference must be at least as compelling as any competing inference.
1. The Alleged Accounting Standards Violations
The alleged GAAS violations are mostly pitched at such a high level of generality that, even if credited, they could not support a compelling inference of scienter.
2. Red Flags
Bare allegations of disregarded auditing standards are insufficient to plead scienter against an outside auditor for the purposes of Section 10(b).
In order for a complaint founded on the theory that an auditor should have uncovered red flags to survive a motion to dismiss, the red flags must be “so
DTTC’s failure to uncover Long-top’s fraud on the basis of these facts does not suggest that its performance amounted to “no audit” of Longtop.
3. The Short Seller Reports
The allegations relating to the Short Seller Reports do not provide the basis for an adequate pleading of scienter. As an initial observation, short sellers operate by speculating that the price of a security will decrease. They can perform a useful function by bringing information that securities are overvalued to the market. However, they have an obvious motive to exaggerate the infirmities of the securities in which they speculate.
The Complaint argues that-the Short Seller reports provide proof of scienter because “[i]t was not until after [the Short Seller Reports] questioned the legitimacy of Longtop’s financial results that DTT[C] began to specifically assess the risk of material misstatement of Longtop’s financial statements due to fraud.”
To the extent that the argument is that DTTC must have acted recklessly because Longtop’s fraud was uncovered by short-sellers, not DTTC, such argument also fails. If an auditor were liable every time a short seller issued a report prior to a fraud being uncovered, then the scope of auditor liability would extend well beyond that contemplated by the PSLRA. Once more, the most compelling inference is that DTTC performed its duties with reasonable diligence, not that it conducted “no audit.”
4. Additional Scienter Theories
In their opposition brief, Lead Plaintiffs put forward two additional theories of scienter.
Naturally, failing to detect a fraud of large magnitude provides some circumstantial evidence of scienter, just as failing to detect a large boulder in front of your face qualifies as circumstantial evidence of blindness.
Nor does the rapidity with which Longtop’s fraud unraveled give rise to a strong inference of scienter. The nub of this theory, which is factually grounded in the Resignation Letter, is that because DTTC was driven to disavow its previous opinions after performing follow-up confir
Finally, to the extent that the Complaint alleges that Longtop’s above-market gross margins functioned as a red flag,
At bottom, the Complaint alleges fraud by hindsight, a claim that is accorded the same respect in this Circuit today as it was when Judge Friendly gave it a name.
B. Material Misrepresentations
DTTC contends that an auditor’s statement of GAAS compliance is a statement of opinion and therefore not a material misstatement unless subjectively false at the time it was made.
These contentions raise the issue of the boundary between fact and opinion. In broad outline, this issue is not unfamiliar to the law.
Naturally, the weight of the showing needed to plausibly allege a material misstatement varies with the underlying auditing defect. In some cases, the problems with the audit will be so egregious that issuing an unqualified opinion will qualify as a false statement without additional allegations of subjective falsehood. In other cases, the underlying alleged auditing standard violations will be inherently subjective, requiring strong circumstantial evidence of subjective falsehood in order to survive a motion to dismiss.
C. Leave to Amend
Lead Plaintiffs seek leave to amend the Complaint. Although a court “should freely give leave” to amend “when justice so requires,”
VI. CONCLUSION
For the foregoing reasons, defendant Deloitte Touche Tohmatsu CPA Ltd.’s motion to dismiss is granted. It is hereby Ordered that defendant Deloitte Touche Tohmatsu CPA Ltd. is to be dismissed from this action. It is further Ordered that Lead Plaintiffs are granted leave to replead within thirty days of the date of this Order. The Clerk of Court is directed to close this motion (Docket No. 101).
SO ORDERED.
. The facts set forth below are drawn from the Consolidated Class Action Complaint ("Compl.”), and are presumed to be correct for the purposes of this motion unless otherwise designated. This Court has previously described the allegations in this case. See In re Longtop Fin. Tech. Ltd. Secs. Litig., No. 11 Civ. 3658, 2012 WL 2512280, at *1 (S.D.N.Y. June 29, 2012). To avoid needless duplication, only the facts necessary to resolve DTTC's motion to dismiss are described below.
. See Compl. If 2.
. Id. ¶ 3.
. Longtop’s fiscal year ends on March 31. See id. ¶ 4.
. See id.
. See id. ¶ 38.
. See id.
. See id. ¶ 6.
. See id. % 8.
. See id.
. See id. ¶ 77.
. See id. ¶¶ 77-78.
. See id. ¶ 89.
. Id. ¶ 181.
. See id. ¶ 59.
. See id. ¶¶ 44-45.
. See id. ¶ 48.
. See id. ¶¶ 47, 49.
. See id. ¶¶ 50-52.
. See id. ¶ 53.
. See id. ¶ 54. '
. Id. ¶ 61.
. See id. ¶¶ 55-56.
. See id. ¶ 57.
. See id. ¶ 58.
. See id.
. See id.
. Id.
. See id.
. See id.
. Id.
. See id.
. See id.
. See id. ¶¶ 61-62.
. See id. ¶ 63.
. Id. ¶ 64.
. See Civil Docket for Case #: l:ll-mc00512-GK-DAR ("SEC Docket”), Ex. F to Declaration of Gary Bendinger in Support of Defendant Deloitte Touche Tohmatsu CPA Ltd.’s Motion to Dismiss ("Bendinger Deck”), at 6 (revealing that the SEC made an unopposed motion for a stay, which was granted); Respondent DTTC’s Statement of Points and Authorities Opposing the SEC's Application for Order to Show Cause and Order Requiring Compliance with a Subpoena (“DTTC Subpoena Mem.”), Ex. G to Bendinger Deck, at 21-22 (describing DTTC’s efforts to comply with the SEC’s subpoena and alleging that DTTC needed Chinese regulatory permission to produce documents to the SEC); Unopposed Motion for Stay of this Action ("SEC Stay Mot.”), Ex. H to Bendinger Deck, at 3 (describing the SEC’s efforts to negotiate with Chinese regulators and seeking a six month stay of the enforcement action).
. See Compl. ¶¶ 123-126; 130-136.
. See id. ¶¶ 107-110 (citing Federal Accounting Standards Board ("FASB”) Statement of Concepts No. 1 ¶¶ 34, 40, 42; FASB No. 2 ¶¶ 58-59, 79; Statement of Financial Concepts No. 57).
. See id. ¶ 107.
. See id. ¶ 123 (citing AU §§ 230, 230.02, 230.07, 230.09).
. See id. ¶¶ 124-129 (citing AU §§ 230.10, 311.03, 311.06, 312.16, 312.17, 329.01, 329.02, 329.03).
. See id. ¶¶ 130-135 (citations omitted)
. See id. ¶ 135.
. See id.
. See id.
. See id.
. See id.
. See id.
. Fed.R.Civ.P. 8(a)(2).
. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), overruled in part on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Simms v. City of New York, 480 Fed.Appx. 627, 629 (2d Cir.2012) (citing Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.2008)).
. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)).
. Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006)). Accord Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir.2006).
. 556 U.S. 662, 678-679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). Accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010).
. Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
. Id. at 679, 129 S.Ct. 1937. Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.2010).
. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation marks omitted).
. Id. (quotation marks omitted).
. See Meridian Horizon Fund, LP v. KPMG (Cayman), 487 Fed.Appx. 636, 639-40 (2d Cir.2012).
. 15 U.S.C. § 78u-4(b)(2).
. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).
. Meridian Horizon Fund, LP, 487 Fed.Appx. at 639 (quoting Tellabs, 551 U.S. at 323-24, 127 S.Ct. 2499).
. See Tellabs, 551 U.S. at 326, 127 S.Ct. 2499.
. 15 U.S.C. § 78u-4(b)(1)(B).
. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007).
. Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir.1999).
. See ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir.2007).
. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir.2002).
. 15 U.S.C. § 78j(b).
. 17C.F.R. § 240.10b-5.
. Ashland Inc. v. Morgan Stanley & Co., Inc., 652 F.3d 333, 337 (2d Cir.2011) (quoting Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008)). Accord. Erica P. John Fund, Inc. v. Halliburton Co., - U.S. -, 131 S.Ct. 2179, 2184, 180 L.Ed.2d 24 (2011).
. See Central Bank of Denver N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 191, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994).
. Wright v. Ernst & Young LLP, 152 F.3d 169, 175 (2d Cir.1998) (quoting Central Bank, 511 U.S. at 191, 114 S.Ct. 1439).
. Rombach v. Chang, 355 F.3d 164, 172 (2d Cir.2004) (quotation marks omitted).
. Janus Capital Grp., Inc. v. First Derivative Traders, -U.S.-, 131 S.Ct. 2296, 2302, 180 L.Ed.2d 166 (2011).
. Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 92-93 (2d Cir.2010) (quoting Azrielli v. Cohen Law Offices, 21 F.3d 512, 518 (2d Cir.1994)).
. Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 197 (2d Cir.2008) (quoting Novak v. Kasaks, 216 F.3d 300, 309 (2d Cir.2000)).
. Id. Accord Rothman v. Gregor, 220 F.3d 81, 90 (2d Cir.2000).
. In re Alstom SA, 406 F.Supp.2d 433, 453 (S.D.N.Y.2005) (citing In re Time Warner Inc. Secs. Litig., 9 F.3d 259, 268 (2d Cir.1993)).
. ATSI, 493 F.3d at 99 (citing Ganino v. Citizens Utils. Co., 228 F.3d 154, 168-69 (2d
. Campo v. Sears Holdings Corp., 371 Fed.Appx. 212, 215 (2d Cir.2010) (quoting Kalnit v. Eichler, 264 F.3d 131, 139 (2d Cir.2001)).
. Kalnit, 264 F.3d at 139. Accord ECA & Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 198 (2d Cir.2009).
. Kalnit, 264 F.3d at 142 (quoting Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987)). Accord South Cherry St., LLC v. Hennessee Gip. LLC, 573 F.3d 98, 109 (2d Cir.2009); In re Novagold Res. Inc. Secs. Litig., 629 F.Supp.2d 272, 297 (S.D.N.Y.2009) (quoting ECA, 553 F.3d at 198-99).
. South Cherry St., 573 F.3d at 109 (quotation marks and emphasis omitted). Accord ECA, 553 F.3d at 203.
. In re Gildan Activewear, Inc. Secs. Litig., 636 F.Supp.2d 261, 272 (S.D.N.Y.2009) (quotation marks and citation omitted).
. Meridian Horizon Fund, LP, 487 Fed.Appx. at 640 (quoting Rothman, 220 F.3d at 98).
. Id.
. In re Scottish Re Group Sec. Litig., 524 F.Supp.2d 370, 385 (S.D.N.Y.2007) (quoting In re Refco, Inc. Sec. Litig., 503 F.Supp.2d 611, 657 (S.D.N.Y.2007)).
. In re IMAX Sec. Litig., 587 F.Supp.2d 471, 483 (S.D.N.Y.2008) (quoting In re Scottish Re Group Sec. Litig., 524 F.Supp.2d at 385).
. Id.
. Tellabs, 551 U.S. at 324, 127 S.Ct. 2499.
. See Compl. ¶¶ 129, 134-137, 183.
. See, e.g., id. ¶¶ 124 ("In conducting the audit, the auditor must obtain 'reasonable assurance that the financial statements are free from material misstatements, whether caused by error or fraud.”) (citing AU § 230.10); 125 ("In considering audit risk, "the auditor should specifically assess the risk of material misstatement of the financial statements due to fraud.”) (citing AU § 312.16); 126-127 (stating that DTTC "failed to adequately plan its audit of Longtop and use appropriate analytical procedures[,]” because it did not discover Longtop’s fraud prior to the Short Seller Reports) (citing AU §§ 329.01-329.03).
. Compare id. ¶¶ 133-134 (citing AU §§ 334.07-334.09) (describing an auditor’s obligation under PCAOB standards to "apply the procedures he considers necessary to obtain satisfaction concerning the purpose” of large or unusual transactions in order to ascertain the relationship between the parties, and charging DTTC with failing to implement these procedures, as evidenced by their failure to ascertain that DTTC had "transferred the majority of its cost structure off-balance sheet to XLHRS”); with id. ¶ 58 (describing, inter alia, the lengths to which Longtop went to conceal its fraud as it began to unravel).
. See AU § 230 ("[bjecause of the characteristics of fraud, a properly planned and performed audit may not detect a material
. See Compl. ¶ 58.
. Id. ¶ 128.
. See In re Merkin, 817 F.Supp.2d 346, 358 (S.D.N.Y.2011) (stating that "allegations of GAAP or GAAS violations, standing alone, are insufficient to state a claim for relief against an accountant under the federal securities laws.”).
. Novak, 216 F.3d at 309.
. See In re AOL Time Warner, 381 F.Supp.2d 192, 240 (S.D.N.Y.2004) ("Allegations of ‘red flags,' when coupled with allegations of GAAP and GAAS violations, are sufficient to support a strong inference of scienter.”) (holding, inter alia, allegation that auditor ignored the fact that large amounts of advertising revenue regularly came in at the end of quarter, fortuitously allowing the audited company to hit their earnings targets, was a red flag supporting a pleading of scienter for the purposes of a motion to dismiss).
. See Compl. ¶ 183 ("Had DTT[C] conducted its audit in accordance with the PCAOB, it would have reacted to the numerous, obvious ‘red flags' set forth above and, in so doing, would have discovered the truth about Longtop’s operations.”)
. See, e.g. id. ¶ 135 ("Indeed, a perfunctory review of the relationship [between XLHRS and Longtop] would have exposed the following [red flags]”) (emphasis added). Cf. Stephenson v. PricewaterhouseCoopers, LLP, 482 Fed.Appx. 618, 623 (2d Cir.2012) ("[P]leading the existence of red flags does not establish that a defendant was aware of those warning signals.”) (affirming dismissal of 10(b) claim when the complaint did not sufficiently allege that the auditor defendant was aware of the red flags alleged).
. See South Cherry St., 573 F.3d at 112-15 (affirming dismissal of section 10(b) claim grounded on allegations that investment ad-
. Stephenson v. Citco Group Ltd., 700 F.Supp.2d 599, 623 (S.D.N.Y.2010).
. The Complaint states that "[ajlthough XLHRS is Longtop's largest line item expenditure by far, it is never mentioned in Longtop filings until the 2009 20-F .... ” Compl. ¶ 135. This assertion is mistaken. Longtop’s 2008 20-F discloses that Longtop entered into a staffing arrangement with XLHRS on May 18, 2007. See 2008 20-F, Ex. E to Bendinger Deck, at 93, Ex. 4.29.
. In re Refco, Inc. Sec. Litig., 503 F.Supp.2d at 657.
. Advanced Battery Tech., No. 11 Civ. 2279, 2012 WL 3758085, at *16 (S.D.N.Y. Aug. 29, 2012) (quoting In re IMAX Sec. Litig., 587 F.Supp.2d at 483-84).
. See 2008 20-F, Ex. E to Bendinger Deck, at 93, Ex. 4.29.
. See Compl. 11 67.
. See Meridian Horizon Fund, LP, 487 Fed. Appx. at 640-41 (affirming dismissal of 10(b) claim against independent auditor, and holding that alleged red flags that were disclosed to the investing public could not support an inference of scienter).
.Compl. ¶ 127.
. See id. ¶ 58 (describing the “second round of bank confirmations” performed by DTTC).
. See id.
. See Lead Plaintiffs’ Amended Memorandum of Law in Opposition to Deloitte Touche Tohmatsu CPA Limited’s Motion to Dismiss Plaintiffs’ Consolidated Class Action Complaint (“Opp. Mem.”) at 17-18.
. Id. at 17.
. Id. at 17-18.
. See Katz v. Image Innovations Holdings, Inc., 542 F.Supp.2d 269, 273 (S.D.N.Y.2008) (citing In re Scottish Re Group Sec. Litig., 524 F.Supp.2d at 394 & n. 174) (“[t]he magnitude of the alleged fraud provides some additional circumstantial evidence of scienter”).
. See Defendant Deloitte Touche Tohmatsu CPA Ltd.'s Reply Memorandum in Further Support of Its Motion to Dismiss the Consolidated Class Action Complaint at 5-6.
. See, e.g. In re Bear Steams Cos., Inc. Secs., Derivative, and ERISA Litig., 763 F.Supp.2d 423, 497, 517 (S.D.N.Y.2011) (finding that an auditor's failure to catch a $1.3 billion write-down provided evidence of recklessness); Katz, 542 F.Supp.2d at 273 (finding evidence of scienter when accountant booked six million dollars worth of largely non-existent sales).
. See Pennsylvania Public School Employees’ Retirement System v. Bank of America Corp., 874 F.Supp.2d 341, 362-63 (S.D.N.Y.2012) (dismissing 10(b) claim on the basis that magnitude of fraud is insufficient to state a claim unless coupled with other "convincing allegations”).
. See Opp. Mem. at 17-18 ("the speed and ease with which the fraud was ‘identified’ [after the follow up visits to Longtop’s banks] further supports a finding of scienter”).
. See Compl. ¶ 58.
. See id. ¶¶ 4-5, 45-46.
. See Chill v. General Elec. Co., 101 F.3d 263, 270 (2d Cir.1996) (“The fact that GE did not automatically equate record profits with misconduct cannot be said to be reckless.”). See also Novak, 216 F.3d at 309 ("the failure ... to interpret extraordinarily positive performance ... as a sign of problems and thus to investigate further does not amount to recklessness”).
. See Denny v. Barber, 576 F.2d 465, 470 (2d Cir.1978) (giving the name “fraud by hindsight” to complaint where "plaintiff [] simply seized upon disclosures made in later annual reports and alleged that they should have been made in earlier ones”).
. Lead Plaintiffs” argument that 'DTTC's failure to comply with the SEC’s subpoena provides proof of scienter is also baseless. See Compl. ¶¶ 12, 64. It appears that DTTC's delay, was caused by conflicting demands from Chinese regulators, and that the SEC has moved for (and received) a stay pending the resolution of these issues. See “SEC Docket”, Ex. F to Bendinger Deck, at 6; DTTC Subpoena Mem., Ex. G to Bendinger Deck, at 21-22; SEC Stay Mot., Ex. H to Bendinger Deck, at-3.
. See Defendant .Deloitte Touche Tohmatsu CPA Ltd.'s Memorandum in Support of Its Motion to Dismiss the Consolidated Class Action Complaint at 22.
. See Opp. Mem. at 12 (citing In Re Longtop, 2012 WL 2512280, at *10).
. See, e.g. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (discussing the fact-opinion dis
. 799 F.Supp.2d 258, 302 (S.D.N.Y.2011).
. Id. The Lehman court’s approach is supported by Virginia Bankshares, Inc. v. Sand-berg, in which the Supreme Court held that a director's fairness opinion in connection with a freeze out merger must be both objectively and subjectively false in order to qualify as a material misstatement under section 14(a) of the Exchange Act. See 501 U.S. 1083, 1093-98, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991). See also Bond Opportunity v. Unilab, No. 99 Civ. 11074, 2003 WL 21058251, at *5 (S.D.N.Y. May 9, 2003) (applying Virginia Bankshares). Cf. Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 888 F.Supp.2d 431, 455-57 (S.D.N.Y.2012) (holding that a jury could find that Triple-A rating of securities constituted a material misstatement, despite the fact that such ratings are opinions, because there was ample evidence of subjective falsehood.)
. In re International Business Machines Corporate Secs. Litig., 163 F.3d 102, 107 (2d Cir.1998). Analogously, a statement that is explicitly labeled an opinion may be actionable in defamation if it implies a false or unreasonable statement of fact. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ("If a speaker says, 'In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his . assessment of them is erroneous, the statement may still imply a false assertion of fact.”).
.See Fait v. Regions Fin. Corp., 655 F.3d 105, 110 (2d Cir.2011) (stating that a statement concerning the impairment of goodwill is inherently subjective, because it depends on a series of assumptions about the "fair value” of an asset). See also City of Omaha, Neb. Civilian Employees’ Retirement Sys. v. CBS Corp., 679 F.3d 64, 68-69 (2d Cir.2012) (affirming dismissal under Fait when securities fraud complaint lacked allegations that company did not believe its goodwill estimate at the time it was made). Presently there is no need to decide whether, in the 10(b) context, a statement of opinion could be "materially false” because it does not express the speaker’s true opinion. Cf. Virginia Bankshares, Inc., 501 U.S. at 1096, 111 S.Ct. 2749 (quoting Stedman v. Storer, 308 F.Supp. 881, 887 (S.D.N.Y.1969)) ("to recognize liability on mere disbelief or undisclosed motive without any demonstration that the proxy statement was false or misleading about its subject would authorize § 14(a) litigation confined solely to what one skeptical court spoke of as the "impurities” of' a director’s "unclean heart.” ”).
. See Compl. ¶¶ 181-182.
. See Opp. Mem. at 9-13.
. See Compl. ¶ 58. In their opposition brief, Lead Plaintiffs argue that the Resignation Letter indicates that DTTC did not "independently verify Longtop’s bank balances and borrowing until May 2011 ....” Opp. Mem. at 16. This contention is contradicted by the text of the Resignation Letter, which refers to "confirmations” of replies "previously received,” "follow up visits,” etc. Compl. ¶ 58.
.Fed.R.Civ.P. 15(a)(2).