Securities — Personal Jurisdiction for Control Group Claims — Fiduciary Shield Doctrine Inapt — Group Pleading Doctrine Not Viable under Private Securities Litigation Reform Act
From Snowstorm Acquisition Corp. v. Tecumseh Prods. Co., 2010 U.S. Dist. LEXIS 99259 (D. Del. Sept. 21, 2010):
The standard for personal jurisdiction under § 20(a) is met if plaintiff makes a non-frivolous allegation that defendant controlled a person liable for securities fraud. 15 U.S.C. §§ 78t(a), 78aa.
[Footnote 8] The statutory basis for jurisdiction provided in the Exchange Act renders fiduciary shield doctrine inapplicable. This doctrine states that "jurisdiction over [individual] defendants does not exist simply because they are agents or employees of organizations which presumably are amenable to jurisdiction in a particular forum." Nicholas v. Saul Stone & Co., 224 F.3d 179, 184 (3d Cir. 2000). The APS Parties are incorrect, therefore, that this doctrine renders jurisdiction improper in this case. See Merchants Nat. Bank, Topeka, Kan. for Stowers v. Safrabank (California), Civ. No. 90-4194, 1991 WL 173781, *1 (D. Kan. Aug. 28, 1991) ("[M]ost courts have determined that the fiduciary shield doctrine is inapplicable when a federal statute provides for nationwide service of process.") (citations omitted).
The APS Parties argue that Snowstorm's complaint lacks particularity largely because multiple allegations of representations, knowledge and intent are directed towards "defendants" collectively, as opposed to attributing each element to an individual defendant (known as "group pleading"). "[T]he group pleading doctrine allows a plaintiff to plead that defendants made a misstatement or omission of a material fact without pleading particular facts associating the defendants to the alleged fraud." Winer Family Trust v. Queen, 503 F.3d 319, 334 (3d Cir. 2007) (hereinafter, "Winer Family Trust"). As a matter of first impression in Winer Family Trust, the Third Circuit held that "the group pleading doctrine is no longer viable in private securities actions after the enactment of the PSLRA." Id. at 337 (requiring "that allegations be set forth with particularity concerning 'the defendant' and scienter be ple[d] for 'each act or omission' sufficient to give 'rise to a strong inference that the defendant acted with the required state of mind'"). To wit, Snowstorm's complaint does not contain any direct allegations of fraud particular to AlixPartners or APS. Thus, the court will only consider the misrepresentations and omissions alleged in Snowstorm's complaint attributed specifically to Bonsall (the Management Presentation, the SPA, and the Certificate) for the Second Count of Snowstorm's complaint, and will disregard the complaint to the extent that it implicates the collective APS Parties (the CIM).
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