(PP 89-90) They assert that "sometime after they purchased the VAL policies," Prudential informed them that they would have to continue to pay premiums on their original policies or the policies would lapse, but that when they questioned their agent about this he assured them they "need pay only what they could afford." (P 91) Accordingly, they allege, they remitted an unspecified number of "small monthly payments in an amount they could afford toward the premiums on the initial policies." (P 92) They aver that, although Prudential later claimed it had attempted to return the checks, they never received them. (P 92)
The complaint further alleges that "during the time the Kuchas' [sic] were dealing with" their Prudential agent, he "often had them sign forms in blank, assuring them that he would take care of everything; that he was not making any money from these transactions; and that they should just trust him." (P 93) They assert that in 1992 they discovered that Mrs. Kuchas had more life insurance than Mr. Kuchas had, and asked their agent to equalize their death benefits, and that it was not until 1994 that they learned that their original policies had lapsed and "had loans against them" which the Kuchases had not authorized. (PP 94-95) The harm they allege is that they "have been forced to pay additional funds to get their original policies reinstated and are still making payments to keep their VAL policies in force." (P 96) They also assert that a 1992 VAL policy, not mentioned at any prior point in the complaint, has lapsed. (P 96)
The Amlees' Claims
The Court will not dwell long on the claims of plaintiffs Allan and Phillis Amlee (the "Amlees"), as Prudential has argued that they are time-barred on the face of the complaint and plaintiffs have not challenged that assertion. The Amlees claim Prudential sold them a VAL policy, representing that they "would never have to make a premium payment" for it because dividends from life insurance policies they already owned would cover the cost. (PP 97-99) The complaint also alleges that in approximately July 1986 the Amlees were told "that they would have to pay additional premiums to keep the VAL policy from lapsing, as the dividends from their prior policies were insufficient." (P 102) Upon receipt of this information, and allegedly upon the advice of their Prudential agent, the Amlees took out loans on their original policies in an effort to keep up with their premium obligations on the VAL policy; nevertheless, their efforts failed, the policy lapsed, and Prudential has told the Amlees that they still owe the company over $ 5,000. (PP 103-104) The Amlees assert numerous common law claims against Prudential.
Prudential claims, and plaintiffs do not dispute, that the longest statute of limitations that applies to the Amlees' claims ran six years after the Amlees discovered the facts which constitute their cause of action. Prudential asserts, and this Court agrees, that from the face of the complaint it appears that the Amlees became aware of the wrongdoing they allege in 1986, when Prudential first informed them that they would have to remit out-of-pocket premium payments on their VAL policy and that dividends from their original policies would not cover these costs. As the Amlees did not file their claims until 1995, their claims are time-barred. Accordingly, the Court will dismiss the Amlees' claims without prejudice.
Plaintiff Norman Gassman ("Gassman") alleges that, in or about August 1992, he sold a CD and used the proceeds to purchase a VAL policy based on a Prudential agent's representations that such an investment "was better than a CD," that it would pay for itself out of its own dividend income, and that it would provide a yield greater than the CD he already owned. (PP 105-107) He states that, although his agent "disclosed . . . that some life insurance would be included with the VAL policy, the agent omitted to disclose that the product was primarily life insurance, and that a substantial portion of the funds [he] was investing would not in fact be invested, but instead would go to pay for the agent's commission, administrative charges, sales loads and other fees and charges to be paid to Prudential." (P 108) He seeks "money damages in an amount equal to the commissions, administrative charges, sales loads and other fees and charges paid to Prudential as well as the decreased investment value of the VAL policy." (P 109)
RULE 9(b) MOTION
Prudential claims that all of plaintiffs' allegations which sound in fraud fail to satisfy the pleading requirements set forth in Federal Rule of Civil Procedure 9(b), which states: "In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally."
Prudential attacks the sufficiency of plaintiffs' pleadings on several fronts. First, it generally asserts that plaintiffs fail to allege how or why allegedly false or misleading information was false or misleading and that they refer to documents without adequately identifying or describing them. Second, Prudential claims plaintiffs' "collectivized pleading" fails to link specific misconduct on Prudential's part to each individual plaintiff's injuries. For instance, the company claims, the complaint fails to allege specifically that any individual plaintiff received fraudulent marketing materials or to identify the materials any particular plaintiff relied upon. Third, Prudential challenges plaintiffs' allegations of fraudulent intent or scienter, asserting that they fail to allege that any individual Prudential agent imparted any information which he or she knew to be false at the time. Relatedly, Prudential claims that plaintiffs rely on opinions and projections to state their claims and that their allegations do not meet the special Rule 9(b) requirements for such claims. Finally, Prudential contends plaintiffs have not alleged fraudulent concealment with sufficient particularity.
The Third Circuit has stated that, to satisfy Rule 9(b), a plaintiff must plead (1) a specific misrepresentation of material fact; (2) defendant's knowledge of its falsity; (3) plaintiff's ignorance of its falsity; (4) defendant's intention that it should be acted upon; and (5) that plaintiff acted upon it to his detriment. Shapiro v. UJB Financial Corp., 964 F.2d 272, 284 (3d Cir.), cert. denied, 506 U.S. 934, 113 S. Ct. 365, 121 L. Ed. 2d 278 (1992). These pleadings must contain some grounding in specific factual allegations; mere conclusory statements will not suffice. However, in assessing a particular claim, a court should bear in mind the purposes of the rule, which are
to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior. It is certainly true that allegations of 'date, place or time' fulfill these functions, but nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting precision and some measure of substantiation into their allegations of fraud.
Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1179, 84 L. Ed. 2d 327 (1985). Thus, there is no laundry list of elements which a complaint must include to pass muster under Rule 9(b). "Perhaps the most basic consideration in making a judgment as to the sufficiency of a pleading is the determination of how much detail is necessary to give adequate notice to an adverse party and enable him to prepare a responsive pleading." Adams v. Madison Realty & Dev., Inc., 1989 U.S. Dist. LEXIS 4205, *15, 1989 WL 41283, *5 (D.N.J.), quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1298, at 415 (1969).
This Court finds that, as to their allegation of a general fraudulent scheme to defraud insurance customers, plaintiffs have provided sufficient factual allegations to place Prudential on notice of their claims and to enable the company to prepare responsive pleadings. The Court's summary of the putative class claims above demonstrates that plaintiffs have drawn a reasonably detailed picture of the scheme they allege. They have clearly set forth the nature of the fraudulent scheme, many of its specifics, and some factual support for their allegations. While they have not specifically identified Prudential managers or high level executives who approved of or participated in the alleged scheme, their allegations that insurance agents nationwide were provided with the same customer information documents, standardized sales presentations and the like provide some basis for the inference of a company directed scheme. Moreover, "the nature of the complaint [and] the situations of the parties make it obvious that only after discovery will plaintiffs have access to information that could truly substantiate their allegations." Lerch v. Citizens First Bancorp., Inc., 805 F. Supp. 1142, 1153 & n.10 (D.N.J. 1992).
The complaint in this case compares favorably with other complaints which have passed muster under Rule 9(b). For instance, in In Re Catanella and E.F. Hutton and Co., Inc. Sec. Lit., 583 F. Supp. 1388, 1397 (E.D. Pa. 1984) (citations omitted), the Court found:
A course of fraudulent conduct is chronicled, including a variety of misrepresentations and omissions, the substance of which is described in the complaints. The relative knowledge of the parties is outlined and the perpetrator of the fraud identified. The breadth of the allegations convinces me that the fraud aspects of these complaints are not 'vexatious,' brought only to tarnish the defendants' reputations. Although not paragons of specificity, I conclude that the allegations stated are sufficient to place defendants on notice and allow them to respond. . . . The complaint is not deficient for failing to state every detail that might be a proper subject for interrogatories.
The complaint in this case provides a similar level of specificity. See also Kronfeld v. First Jersey Nat'l Bank, 638 F. Supp. 1454, 1464-65 (D.N.J. 1986); Lerch, 805 F. Supp. at 1152-53.
Nor, under these circumstances, is plaintiffs' failure to attach specific documents to which the complaint refers, or to quote from them verbatim, fatal to their claims. Cf. In Re VMS Secs. Lit., 752 F. Supp. 1373, 1386 (N.D. Ill. 1990). In complex corporate fraud cases such as this one, "a description of the nature and subject matter" of the alleged misrepresentations or omissions may be sufficient "even absent allegations with respect to the exact factual context or words constituting the misrepresentation." In Re Midlantic Corp. Shareholder Lit., 758 F. Supp. 226, 231 (D.N.J. 1990), citing Commodity Futures Trading Com'n v. American Metal Exchange Corp., 693 F. Supp. 168, 190-91 (D.N.J. 1988).
Rule 9(b) is to be applied flexibly. Id. If plaintiffs are able to set forth a colorable claim of fraud and afford the defendant notice as to which of its actions or communications form the basis for it without appending specific documents, their failure to do so at the preliminary pleading stage does not require dismissal of their claims. Physical copies of the documents to which the complaint refers become less crucial where the complaint alleges a scheme that chiefly involves omissions and oral misrepresentations. Here, it would be unreasonable to require plaintiffs to append copies of each and every document to which they refer in their complaint; moreover, plaintiffs' claims do not rely exclusively upon affirmative misrepresentations contained within documents. At this stage of the litigation documentary evidence is not necessary either to enable Prudential to frame responsive pleadings or to enable the Court to evaluate the factual basis for the complaint. Should Prudential require further information as to the documents upon which plaintiffs rely, this would be an appropriate subject for interrogatories.
Prudential's "collectivized pleading" argument must be rejected as well. This Court, like other courts of this district, "abjures collective pleading and subscribes to the mandate of the rule that as to each defendant the circumstances constituting the fraud must be stated with particularity." Adams, 1989 WL 41283 at *4. However, there is but one defendant in this case, and "less specificity is required when the complaint presents the claims of a [proposed] class and individual identification of the circumstances of the fraud as to each class member would require voluminous pleadings." Alfaro v. E.F. Hutton & Co., Inc., 606 F. Supp. 1100, 1108 (E.D. Pa. 1985) (citations omitted); see also Catanella, 583 F. Supp. at 1398 ("where the transactions are numerous and stretch over an extended period of time, less specificity is required").
On the other hand, the individual named plaintiffs' claims should each satisfy Rule 9(b) independently. Although the complaint need not replead general allegations regarding Prudential's scheme for each named plaintiff, it should contain sufficient detail as to each plaintiff's claims to apprise Prudential of that plaintiff's exact grounds for relief and the specific conduct that plaintiff charges. While the Court finds that the complaint satisfies this standard with respect to the claims of Gassman, Dorfner and the Nicholsons, the Court will dismiss the Kuchases' claims for failure to satisfy Rule 9(b).
The Kuchases' claims are set forth in paragraphs 86-96 of the complaint, and are summarized by the Court supra at pp. 8-10. From the complaint, this Court cannot discern so much as the year that any alleged misrepresentation occurred, nor what precise misrepresentations or omissions the Kuchases rely upon to state their claim, nor how their alleged damages relate to Prudential's alleged wrongdoing. The Kuchases must replead their fraud-based claims to comply with Rule 9(b).
The Court rejects Prudential's claim that the complaint's scienter allegations are deficient with respect to claims which rely upon fraudulent statements of opinion and projection.
Although scienter may be alleged generally, Prudential is correct that a plaintiff who relies on fraudulent projections or opinions must satisfy a heightened 9(b) standard. Specifically, plaintiffs must allege not only that the projections were fraudulent; they must allege "why there was no reasonable basis for the projections." Urbach v. Sayles, 779 F. Supp. 351, 359 (D.N.J. 1991), citing In Re Craftmatic Sec. Lit., 890 F.2d 628, 646 (3d Cir. 1989). To satisfy this standard, plaintiffs must set forth specific facts indicating (1) why the charges against defendants are not baseless
and (2) why additional information lies exclusively within the defendants' control. Id., citing Craftmatic, 890 F.2d at 646.
To the extent plaintiffs' claims arise out of Prudential's faulty projections that the company would be able to maintain high surplus and dividend rates, plaintiffs have adequately alleged the basis for their contention that Prudential knew of or recklessly disregarded the misleading nature of their statements. Plaintiffs allege that Prudential provided its customers with policy illustrations which were based upon assumptions which conflicted with the company's own internal projections; they have also alleged that the company, by creating a new class of dividend-participating policies which would not receive the benefit of a large financial cushion from prior years, subjected policyholders to an increased risk of volatility that it did not disclose to plaintiffs. These allegations, if proved, would provide factual support for plaintiffs' claim that Prudential knew its projections were baseless when made.
The heightened pleading requirements for plaintiffs alleging fraudulent projections
should not and do not create an insurmountable barrier. The Third Circuit has emphasized that courts must not require that plaintiffs plead facts 'uniquely in the defendant's knowledge or control.' . . . Hence, plaintiffs pleading fraudulent projection must allege facts, available to outsiders to the enterprise or transaction, which, if true, would show that the projection could have been known to be false when made and raise an inference that the defendant knew them to be false or acted in reckless disregard of their truth or falsity.
Urbach, 779 F. Supp. at 360, quoting Craftmatic, 890 F.2d at 645. Plaintiffs have satisfied this burden. Although, technically, they should allege specifically that they have conducted a reasonable investigation into their claims and that further information is within Prudential's exclusive control pending discovery, see Shapiro, 964 F.2d at 285, the Court finds that such allegations are implicit under the circumstances of this case.
The Court agrees with Prudential that plaintiffs' allegations of fraudulent concealment fail to pass muster under Rule 9(b). The complaint simply alleges that "Prudential agents were trained" to conceal their scheme and that, "for example, when Class members would receive notices describing the loans taken against their policies, Prudential agents routinely advised their customers not to worry, that the notice was a mistake, and/or that the agent would 'take care of it.'" (Compl. P 43) Although the complaint goes on to allege that both the Nicholsons and the Kuchases received such assurances, it does not provide sufficient context for these allegations to survive Prudential's Rule 9(b) motion. Certainly, the conclusory allegation that Prudential, "through various devices of secrecy, affirmatively and fraudulently concealed the existence of their unlawful scheme and course of conduct" (Compl. P 110) adds no specificity to these contentions. A court within this circuit rejected a much more detailed allegation of fraudulent concealment in a class action similar to this one in Alfaro, 606 F. Supp. at 1109-10. Clearly, plaintiffs must particularize their allegations of fraudulent concealment to a much greater degree than they have here.
Plaintiffs Dorfner, the Kuchases, and Gassman assert that Prudential's conduct violated section 10(b) and Rule 10b-5 of the securities laws. The elements of a section 10(b)/Rule 10b-5 claim are: (1) a false representation of (2) a material (3) fact; (4) defendant's knowledge or reckless disregard of its falsity and his intention that plaintiff rely on it; (5) plaintiff's reasonable reliance thereon; and (6) plaintiff's resultant loss. Lewis, 949 F.2d at 649. Prudential claims plaintiffs have failed to plead compliance with the statute of limitations for Rule 10b-5 claims. It also asserts that plaintiffs have failed to plead the third, fourth, fifth and sixth elements of the claim, namely misrepresentation of a present fact, scienter, reliance and causation. Finally, Prudential has moved to dismiss plaintiffs' claims for secondary liability under the securities laws. The Court will address these arguments seriatim.
I. Statute of Limitations
Prudential claims that plaintiffs' securities claims fail to satisfy the statute of limitations set forth in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991). Lampf created a one-year/three-year scheme under which a plaintiff must file his claim within three years of the alleged violation and within one year of "discovery of the facts constituting the violation." Id., 501 U.S. at 363, 111 S. Ct. at 2782. The courts of this district have consistently held that plaintiffs bear the burden of pleading compliance with Lampf, because the statute of limitations it sets forth is a substantive requirement rather than a procedural one. Rolo v. City Investing Co. Lig. Trust, 845 F. Supp. 182, 243 n.38 (D.N.J. 1994); Kress v. Hall-Houston Oil Co., 1993 U.S. Dist. LEXIS 6350, 1993 WL 166274, *2 (D.N.J.) (Wolin, J.).
Prudential asserts, and this Court agrees, that neither Gassman nor the Kuchases have satisfied the one-year component of the statute. The Court further finds that the Kuchases have not demonstrated compliance with the three-year limitations period. Only Dorfner has adequately plead compliance with the statement of limitations for securities fraud claims.
One-Year Limitations Period
The federal courts have not yet reached consensus on some of the particulars of the Lampf limitations rule. Plaintiffs argue that one point of divergence is whether the one-year period begins to run upon plaintiff's actual notice of his cause of action or upon inquiry notice. Plaintiffs assert that the Third Circuit has not yet passed on this question and urge this Court to adopt an actual notice standard. Alternatively, they assert that their complaint satisfies even the inquiry notice pleading requirements.
Although the debate over inquiry notice and actual notice was a heated point of contention in the years immediately following Lampf, the federal courts have by now settled into a fairly uniform consensus that the standard is inquiry notice. Tregenza, 12 F.3d 717; Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir. 1993) (per curiam); Brumbaugh v. Princeton Partners, 985 F.2d 157, 163-64 (4th Cir. 1993); Topalian v. Ehrman, 954 F.2d 1125, 1135 (5th Cir.), cert. denied, 506 U.S. 825, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). Although the Third Circuit does not appear to have passed on the question specifically, it has opined -- albeit in another context -- that:
the necessity for uniform federal remedies in security cases would seem to demand recourse to a uniform federal statute of limitations. . . . With a nod to Cicero, you simply should not have a different Securities Act limitations period for Rome, New York, and Athens, Georgia (Non erit alia lex Romae, alia Athenis).
In Re Data Access Sys. Sec. Lit., 843 F.2d 1537, 1549 (3d Cir.), cert. denied, Vitiello v. Kahlowsky and Co., 488 U.S. 849, 109 S. Ct. 131, 102 L. Ed. 2d 103 (1988).
Although the Third Circuit is not bound by its sister circuits' adoption of inquiry rather than actual notice as the trigger for the one-year limitations period under Lampf, plaintiffs have provided no indication that the Circuit Court will buck this distinct trend, and the courts of this district have clearly adopted the inquiry notice standard. See Rolo, 845 F. Supp. at 243 (D.N.J. 1994) (citations omitted) ("discovery need not be actual; 'discovery' under the 1934 Act limitation provisions includes constructive or inquiry notice, as well as actual notice"); Kress, 1993 WL 166274 at *2. Moreover, a plaintiff "does not have to have notice of the entire fraud being perpetrated to be on inquiry notice." Dodds v. Cigna Secs., Inc., 12 F.3d 346, 352 (2d Cir. 1993), cert. denied, 511 U.S. 1019, 114 S. Ct. 1401, 128 L. Ed. 2d 74 (1994). Rather, "the time from which the statute of limitations begins to run is not the time at which a plaintiff becomes aware of all of the narrow aspects of the alleged fraud, but rather the time at which plaintiff should have discovered the general fraudulent scheme." McCoy v. Goldberg, 748 F. Supp. 146, 158 (S.D.N.Y. 1990) (citation omitted); see also Kosovich v. Thomas James Assocs., Inc., 1995 WL 135582, *3 (S.D.N.Y.) (citing cases).
To satisfy their burden of pleading compliance with the one-year prong of the statute of limitations, plaintiffs "must set forth the time and circumstances of discovery of the fraud, the reason why discovery was not made earlier, and the diligent efforts the plaintiff undertook in making such discovery." Rolo, 845 F. Supp. at 243 n.38 (citing cases).
Prudential argues that the written documents plaintiffs received in connection with their purchases put them on immediate inquiry notice that the products they purchased were not what their agents allegedly represented them to be. Direct contradictions between alleged oral misrepresentations and written offering materials have been deemed to put the purchaser on inquiry notice in numerous cases. See, e.g., Dodds, 12 F.3d 346 (written prospectuses directly contradicting alleged oral misrepresentations put plaintiff on inquiry notice even though plaintiff had only tenth-grade education, had not read prospectuses and had told broker she could not understand them); Calvi v. Prudential Secs., Inc., 861 F. Supp. 69 (C.D. Cal. 1994) (defendant wins summary judgment on limitations ground where prospectus clearly disclosed risks of investment, even though plaintiff claimed she was an unsophisticated widow who had not read them); DeBruyne v. Equitable Life Assur. Soc. of the United States, 920 F.2d 457 (7th Cir. 1990); Harner v. Prudential Secs., Inc., 785 F. Supp. 626 (E.D. Mich. 1992), aff'd, 35 F.3d 565 (6th Cir. 1994). Of course, if the written materials are to provide notice that prior or concurrent oral statements are fraudulent, they must contradict those representations directly.
As this Court reads the complaint, Dorfner does not allege that Prudential misrepresented to him that his VAL policy would pay for itself, or that he did not realize that Prudential's claim that dividends from his prior policies would pay the premiums for his VAL policy for "at least eight years" was contingent upon the amount of dividends available. Rather, Dorfner's claims appear to arise solely out of Prudential's alleged use of proceeds from unauthorized loans against his whole life policies to pay premiums on his 1991 VAL policy. Prudential has pointed to no specific language in any of the written materials Dorfner received that speaks to Prudential's right to authorize loans against his policies without notifying him. Accordingly, the Court finds that Dorfner's claims are not time-barred by the one-year limitations provision.
Gassman asserts (1) that Prudential misrepresented that a VAL policy would provide a return greater than that of his CD; (2) that Prudential misrepresented that the VAL policy he purchased would generate dividends sufficient to cover premium obligations; (3) that Prudential failed to disclose to him that the VAL policy was "primarily life insurance;" and (4) that he was unaware that a "substantial portion" of his premium payments would go toward commissions, administrative charges and other fees. Gassman received documents from Prudential which directly contradict most of these alleged oral misrepresentations.
First, the policy contains a separate section entitled "Dividends," which states:
We will decide each year what part, if any, of our surplus to credit to this contract as a dividend. . . . We do not expect to credit any dividends to this contract. If you ask us in writing on a form that meets our needs, you may choose any of these uses for any such dividend: . . . (2) Premium Reduction. -- We will use it to reduce any premium then due.