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Richard Greenberg and Epic, LLC v. Pro Shares Trust and Pro Fund Advisors

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2011

RICHARD GREENBERG AND EPIC, LLC, PLAINTIFFS-APPELLANTS,
v.
PRO SHARES TRUST AND PRO FUND ADVISORS, LLC, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1101-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 4, 2011

Before Judges C.L. Miniman and LeWinn.

Plaintiffs Richard Greenberg (Greenberg) and Epic, LLC (Epic), appeal from the dismissal of their second amended complaint against defendants Pro Shares Trust (Pro Shares) and Pro Fund Advisors, LLC (Pro Fund), with prejudice on July 9, 2010. They also appeal from a September 22, 2010, order denying their motion for reconsideration. We now affirm.

Plaintiffs' second amended complaint alleges that Greenberg is a Florida resident "who invests from time to time in publicly-traded securities." Epic is a Delaware company with offices in Parsippany. Greenberg is Epic's Manager and "invests with it from time to time." Pro Shares is a Delaware business trust with principal offices in Maryland. It is a registered investment company with several exchange-traded funds (the Funds) listed on the American Stock Exchange. Pro Fund is affiliated with Pro Shares and allegedly provides advisory services to the Funds.*fn1 It maintains offices with Pro Shares.

The second amended complaint further alleges that Pro Shares establishes investment securities through the Funds and publishes and disseminates a Prospectus. The Prospectus "generally represent[s] [t]he Funds to be investments whose values correlate to the performance of an established benchmark or index." Some of the Funds are established as "long purchases" that fluctuate with the price performance of an indeX or benchmark; others are "short purchases" that fluctuate inversely to an index or benchmark; and others fluctuate based on a designated multiple of an index or benchmark. "Ultra Pro Shares" are investments that "have price[-]return characteristics double (200%) of the underlying index." "Short Pro Shares" and "Ultra Short Pro Shares" have "price[-]return characteristics equal to, or equal to a multiple of, the inverse of the underlying index," respectively.

According to the second amended complaint, Michael P. Warren (Warren), Regional Vice President of Pro Fund, made a sales visit and presentation at Greenberg's offices on or about August 1, 2008. Greenberg's registered investment advisor and a second registered investment advisor were also present. "Warren provided assurances and made material representations about the performance of Pro Shares, with a particular emphasis upon the performance of the Ultra Pro Shares and Ultra Short Pro Shares." He "expressly represented that the Ultra Short Pro Shares price performance for indices, including international indices, would fluctuate at a price of 200% of the inverse of the designated index and the Ultra Pro Shares would fluctuate at a price of 200% of the designated index." He also "represented that these securities could be held as long-term investments; and[] they would perform as represented regardless of the time period involved." Further, "Warren knew, or should have reasonably known, that the aforesaid representations were false or misleading[, and] were made with the intent that Greenberg rely upon same and make investment purchases in the Funds offered by Pro Shares."

Plaintiffs alleged that they invested heavily in Ultra Pro Shares and Ultra Short Pro Shares, but the securities did not have a price performance equal to twice the performance or twice the inverse of the performance of the designated indices and benchmarks. They alleged that they were induced to make these purchases based on material misrepresentations or omissions of fact. They pled in their first count deceit and a scheme or artifice to defraud, unknown to Greenberg, which violated the New Jersey Uniform Securities Law (NJUSL), N.J.S.A. 49:3-71, and sought compensatory damages, interest, counsel fees, and costs of suit. In their second count, plaintiffs reserved the right to tender the return of their shares and seek a refund pursuant to the NJUSL. In their third count, plaintiffs alleged common law fraud, seeking compensatory and punitive damages.

On or about March 19, 2010, defendants filed a motion to dismiss and submitted a copy of the October 1, 2008, Prospectus for Pro Shares Trust. Defendants argued that plaintiffs' reliance on Warren's alleged statements was not reasonable because the alleged oral statements were "expressly contradicted by the disclosure included in the Prospectus cited in Paragraph 10" of the second amended complaint. They urged that reliance on oral statements in connection with securities sales that are expressly contradicted by the Prospectus is not, as a matter of law, reasonable. They also asserted that plaintiffs had not sufficiently pled injury and scienter.

In Greenberg's opposing certification, he stated that the 2008 Prospectus was "not the Prospectus that [he] received when the initial decision was made to invest." He appended "a true copy of the Prospectus [he] received, which is dated October 1, 2007."*fn2 He further asserted:

I am aware the [d]efendants contend that the Investment Objective Section of the Prospectus provided notice to investors that the Pro Shares investments would only perform as represented if "day traded."

This characterization is inaccurate. I did not read this Section of the Prospectus, and do not now read this Section of the Prospectus, to caution or warn an investor that these securities must be "day traded."

Greenberg also claimed that the Prospectus contained inconsistencies and did not state that there was a risk associated with holding the securities for more than a day. Instead, it suggested that the securities would "perform as represented for a period well in excess of one day," as reflected in various charts, citing numerous pages of the Prospectus.

At oral argument, defendants argued that the Prospectus, which Greenberg admitted to having, clearly indicated that the investments were designed to perform according to a daily benchmark and described the high risks involved with the investments. Plaintiffs, on the other hand, argued that their second amended complaint referenced the Prospectus "just to reiterate the fact that there was [sic] some machinations---- representations that bolster what was orally represented to [Greenberg]. Not that [plaintiffs] relied on the [P]rospectus."

When Judge W. Hunt Dumont asked if Greenberg had the Prospectus, plaintiffs' counsel responded, "[H]e did get a [P]rospectus at some point." Counsel further advised the judge that the date when Greenberg received the Prospectus was "certainly a fact that's not set forth in the pleadings." Counsel also maintained that the Prospectus suggested the securities would "perform as represented for well in excess of a day." The judge also asked plaintiffs' counsel whether the investments were high-risk securities in which average investors would not be involved. Counsel replied that he would not admit that they were high risk securities, but did admit that Greenberg was a sophisticated investor who had a company handling his investments. Counsel asserted that common-law fraud and claims under the NJUSL did not have identical elements, with common-law fraud requiring reasonable reliance, and asked to proceed with discovery on the issue of reliance.

Defense counsel then argued that, as a matter of law, "[w]hen the [P]rospectus is directly contradicted by what you are allegedly told, . . . there cannot be reasonable reliance." Further, he argued that both common law and statutory claims required reliance, and there was not "a difference between reliance and reasonable reliance."

The judge held, "[W]here the complaint references and . . . incorporates a document, that document is deemed part of the complaint, and the [c]court may consider that evidence in the context of a motion to dismiss." The elements of common-law fraud were "a material misrepresentation of a presently existing or past fact, knowledge or belief by the defendant of its falsity, an[] intention that the other person rely on it, reasonable reliance thereon by the other person [and] resulting damages." He observed that more securities cases were brought at the federal level under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5 (2010) (Rule 10b-5), but the NJUSL had similarities to Rule 10b-5. Relying on an unreported decision by the United States District Court for the District of New Jersey, he found that both common law fraud and the NJUSL contain substantially the same elements, with the latter requiring an untrue act or omission, scienter, causation, and injury to the plaintiff.

The judge questioned whether Warren's alleged misrepresentations satisfied the first element as his statements were "basically his opinion, or the opinion of the company." He noted that "the defense points out that [Greenberg] had a prospectus," which was "referred to" in the second amended complaint. He examined the Prospectus, starting with "the very first sentence," which read:

Each series of ProShares ("Fund(s)") is designed to correspond to the performance of a daily benchmark, before fees and expenses, such as the daily price performance, the inverse of the daily price performance, a multiple of the daily price performance, or a multiple of the inverse of the daily price performance, of an index or security. Ultra ProShares are designed to correspond to a multiple of the daily performance of an underlying index. The Short ProShares are designed to correspond to the inverse of the daily performance or twice (200%) the inverse of the daily performance of an underlying index. The Funds do not seek to achieve their stated investment objective over a period of time greater than one day because mathematical compounding prevents the Funds from achieving such results.

[Emphasis added.]

The judge stated, "[T]hat's the very first paragraph of the [P]rospectus. It's not buried in the [P]rospectus." Also, the Prospectus described correlation risk and stated that "for periods greater than one day, a leverage fund is likely to under perform [sic] or over perform [sic] . . . the index performance times the stated multiple in the fund objective."

In dismissing the complaint, Judge Dumont concluded:

Now, I don't know how you can say that [Greenberg] is anything other than a sophisticated investor. And obviously an investor that has to involve himself in high[-]risk securities if he's going to get involved with these exchange[-]traded funds.

And further, it appears from the complaint that he had the [P]rospectus because he refers to the [P]rospectus in the complaint, albeit he doesn't obviously refer to the sections which the [c]court has just read, because they would favor the defense argument.

But the question is this, in the face of a representative's oral representations that certain exchange[-]traded funds would have a specific performance characteristic that would perform as represented, regardless of the time period involved, the prospectus contradicts that.

And even if we assume that Mr. Warren made the statements that are attributed to him, they are directly contradicted by the [P]rospectus for the [F]unds, which states that the [F]unds are designed only to perform as represented on a daily basis.

. . . [I]n the [c]court's view, the motion to dismiss, despite being as liberal as the [c]court can be, with respect to [plaintiffs'] complaint, must be granted.

I can consider the [P]rospectus in dealing with a motion to dismiss. . . . There cannot be a common[-]law fraud claim here. There's some question as to whether there were material representations of presently existing or past facts. But there most certainly can't be reasonable reliance in the face of what the [P]rospectus says in the very first paragraph of the [P]rospectus.

Moreover, the claim under the [NJUSL] may not be identical to common law fraud, but there would have to be, in the [c]court's view, reliance. And the cases so hold.

Where a written prospectus is patently contradicted by what an individual in Warren's position allegedly said, the [c]courts have consistently held that as a matter of law the oral representations cannot be relied upon to establish a cause of action for fraud.

Plaintiffs moved for reconsideration, and in his supporting certification, Greenberg asserted that, although he received the Prospectus, "it is important to note that I did not receive [it] prior to making my investment in [defendants'] funds." Rather, he "only received [it] after [he] made the investments that are the subject of this litigation."

The judge denied the motion on the papers, writing the following statement on the September 22, 2010, order Denied, the standard for reconsideration is not met. The [c]court decision on 7/9 was neither "incorrect" nor a failure to appreciate "probative, competent evidence." As the defense noted, [Greenberg's] earlier certification referred to the [P]rospectus [he] admitted receiving and the [c]court on pp. 39-40 read into the [r]ecord portions of it as part of the ruling.

Plaintiffs now raise two points on appeal: (1) the judge's dismissal of their claims "was based upon an erroneous interpretation of the facts"; and (2) the judge erred in not granting reconsideration.

I.

We apply the same standard as the trial court upon review of a Rule 4:6-2(e) motion. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). Such motions "should be granted in only the rarest of instances." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). The "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Id. at 746. The judge "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary," Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957), and should "assume the truth of the allegations of the complaint, giving plaintiff the benefit of all reasonable factual inferences that those allegations support." F.G. v. MacDonell, 150 N.J. 550, 556 (1997).

"[D]ismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Rieder v. N.J. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). However, "[i]f a complaint must be dismissed after it has been accorded . . . meticulous and indulgent examination . . . , then, barring any other impediment such as a statute of limitations, the dismissal should be without prejudice to a plaintiff's filing of an amended complaint." Printing Mart-Morristown, supra, 116 N.J. at 772.

However, "the granting of a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). Moreover, "'courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)).

Reconsideration under Rule 4:49-2 is within a judge's sound discretion. Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006). It "should be utilized only for those cases . . . that fall within that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) (internal quotation marks omitted), certif. denied, 195 N.J. 521 (2008). Thus, it "cannot be used to expand the record and reargue a motion. Reconsideration is only to point out 'the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.'" Ibid. (quoting R. 4:49-2).

The denial of a motion for reconsideration is reviewed for a mistaken exercise of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). A mistaken exercise of discretion may be found where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). A reviewing court "may only disturb the decision below if it finds error which is 'clearly capable of producing an unjust result.'" Teller, supra, 384 N.J. Super. at 413 (quoting R. 2:10-2). "However, the trial court's interpretation of the law is afforded no special deference, and [a] court's review of the legal issues is de novo." Ibid.

II.

Plaintiffs first assert that their second amended complaint "does not allege that Greenberg had any Prospectus at the time the investments were made." Relying on contract cases, they assert that the Prospectus was ambiguous. They argue that the judge "went beyond the scope of the pleadings" and improperly construed the facts and made inferences in favor of defendants. In sum, the dismissal "was directly predicated upon the erroneous belief that Greenberg had the Prospectus at the time of his investment [ . . . and] could not possibly have relied upon any oral representations."

As a preliminary matter, at the motion to dismiss stage, the consideration of documents referred to in a complaint "is proper and does not convert defendants' [Rule] 4:6-2(e) motion[] into [a] motion[] for summary judgment." N.J. Citizen Action, Inc. v. Cnty. of Bergen, 391 N.J. Super. 596, 605 (App. Div.), certif. denied, 192 N.J. 597 (2007); see also N.J. Sports Prods., Inc. v. Bobby Bostick Promotions, LLC, 405 N.J. Super. 173, 178 (Ch. Div. 2007) (stating same). Plaintiffs expressly referred to the Prospectus in their complaint; thus, it was proper for the judge to consider this document.

Next, plaintiffs claim that Greenberg did not have the Prospectus when he made his investments, and the judge improperly looked outside the complaint to determine otherwise. This claim is belied by Greenberg's opposing certification wherein he averred that the 2008 Prospectus "is not the Prospectus that [he] received when the initial decision was made to invest." (Emphasis added.) Rather, he annexed "a true copy of the Prospectus [he] received, which is dated October 1, 2007."

Plaintiffs also claim that the Prospectus was ambiguous, citing Schor v. FMS Financial Corp., 357 N.J. Super. 185 (App. Div. 2002), and New Jersey Citizen Action, supra, 391 N.J. Super. 596. This argument is without merit. As the judge found, the very first page of the Prospectus clearly states that the Funds performed according to daily benchmarks (with the word "daily" appearing eight times in the first paragraph alone) and that "[t]he Funds do not seek to achieve their stated investment objective over a period of time greater than one day." These statements directly contradict Warren's alleged misrepresentations "that these securities could be held as long-term investments" and that "they would perform as represented regardless of the time period involved."*fn3

Plaintiffs further assert that Greenberg is not a sophisticated investor, but at the hearing, plaintiffs' counsel explicitly conceded that Greenberg was a sophisticated investor whose company handled his investments.

A.

We first address plaintiffs' claim for common law fraud. The requisite elements are "(1) material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 535 (App. Div. 1996), aff'd as modified, 148 N.J. 582 (1997).

"The recipient of a fraudulent misrepresentation in a business transaction can recover against its maker for harm caused by his reliance upon it if, but only if, his reliance is justifiable." Nat'l Premium Budget Plan Corp. v. Nat'l Fire Ins. Co. of Hartford, 97 N.J. Super. 149, 209 (Law Div. 1967) (internal quotation marks omitted), aff'd, 106 N.J. Super. 238 (App. Div.), certif. denied, 54 N.J. 515 (1969). A plaintiff "may not put faith in representations which are . . . shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth, and still compel the defendant to be responsible for his loss." Id. at 211 (internal quotation marks omitted).

Here, in dismissing plaintiffs' complaint due to the absence of reasonable reliance, the judge relied on several cases from the Court of Appeals for the Second Circuit, which we find persuasive. See Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2 (2d Cir. 1996), cert. denied, 520 U.S. 1264, 117 S. Ct. 2433, 138 L. Ed. 2d 194 (1997); Brown v. E.F. Hutton Group, Inc., 991 F.2d 1020 (2d Cir. 1993); Dodds v. Cigna Sec., Inc., 12 F.3d 346 (2d Cir. 1993), cert. denied, 511 U.S. 1019, 114 S. Ct. 1401, 128 L. Ed. 2d 74 (1994).

In the most recent case, the court granted the defendants' motion to dismiss federal securities and common law fraud claims. Olkey, supra, 98 F.3d at 9. It noted that it had "consistently affirmed Rule 12(b)(6) dismissal[s] of securities claims where risks are disclosed in the prospectus" and concluded that the defendants' representations about the risks of the investments were "immaterial since they [were] contradicted by plain and prominently displayed language in the prospectuses." Ibid.

In Brown, the court affirmed the defendant's motion for summary judgment on a securities claim because "the offering materials [were] not misleading as a matter of law," and the plaintiffs "could not have reasonably relied on the alleged oral representations by [the defendant's] account executives." Brown, supra, 991 F.2d at 1030 (internal quotation marks omitted). The court concluded that "[a]n investor may not justifiably rely on a misrepresentation if, through minimal diligence, the investor should have discovered the truth." Id. at 1032. In the Second Circuit, justifiable reliance requires an absence of recklessness. Ibid. Even assuming that the plaintiffs were unsophisticated investors, the court found an absence of justifiable reliance because the defendant had forwarded the plaintiffs its offering materials, which "detailed the investment characteristics . . . in comprehensive and understandable language . . . [and] contradicted the brokers' alleged general assurances." Ibid.

Finally, the Dodds court dismissed the plaintiff's securities fraud claims based on untimeliness, Dodds, supra, 12 F.3d at 353, but observed that, even though the plaintiff failed to read the defendants' prospectuses, she was on constructive notice of their contents. Id. at 351. The plaintiff, a widow without investment experience, id. at 347-48, had alleged that the defendants induced her to invest in high risk and illiquid limited partnerships, id. at 350. The court found that clearly disclosed warnings in the prospectuses "were sufficient to put a reasonable investor of ordinary intelligence on notice" of the applicable risks of the investments. Id. at 351.

Even were we to assume the truth of Greenberg's belated contrary assertions that he did not have the Prospectus and that he is not a sophisticated investor, given the ready availability of a company's prospectus, as in Dodds, he was on constructive notice of its contents, which were "sufficient to put a reasonable investor of ordinary intelligence on notice." Ibid. As found in Brown, supra, 991 F.2d at 1032, plaintiffs could not "justifiably rely on a misrepresentation if, through minimal diligence, [they] should have discovered [its] truth."

B.

We next address plaintiffs' claims under the NJUSL. A person violates that act if he or she (2) [o]ffers, sells or purchases a security by means of any untrue statement of material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), or (3) offers, sells or purchases a security by employing any device, scheme, or artifice to defraud, or (4) offers, sells or purchases a security by engaging in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person [N.J.S.A. 49:3-71(a)(2) to (4).].

Pursuant to subsection (c), [a]ny person who offered, sold or purchased a security or engaged in the business of giving investment advice to a person in violation of paragraph . . . (2), (3), [or] (4) . . . of subsection (a) of this section is liable to that person, who may bring an action either at law or in equity to recover the consideration paid for the security or the investment advice and any loss due to the advice, together with interest . [N.J.S.A. 49:3-71(c).].

Further, liability may extend to [e]very person who directly or indirectly controls a seller . . .[,] every partner, officer, or director of such a seller, or investment adviser, every person occupying a similar status or performing similar functions, [and] every employee of such a seller or investment adviser who materially aids in the sale or in the conduct giving rise to the liability. [N.J.S.A. 49:3-71(d).]

A plaintiff must prove "that the seller or giver of investment advice knew of the untruth or omission and intended to deceive the buyer or recipient of investment advice." N.J.S.A. 49:3-71(b)(1).

Our Supreme Court has examined this statutory language and noted that plaintiffs have "a significantly lower burden" under the NJUSL than for common law fraud. Kaufman v. i-Stat Corp., 165 N.J. 94, 112 (2000). In this one limited respect, we must disagree with the judge's conclusion that an injured party under the NJUSL is required to prove reasonable reliance. The Kaufman Court expressly found that the Legislature "eliminated reliance as an element of securities fraud entirely in favor of a system in which privity establishes causation." Id. at 112-13 ("The Legislature balanced the plaintiff's advantage of not having to show reliance with the defendant's advantage of being immune from liability to anyone out of privity."); see also In re Marsh & McLennan Cos. Sec. Litig., 501 F. Supp. 2d 452, 496 (S.D.N.Y. 2006) (observing that "New Jersey's [USL] does not require reliance" (citing Kaufman, supra, 165 N.J. at 112)).

Even so, to prevail, a plaintiff must show that he did "not know[] of the untruth or omission." N.J.S.A. 49:3-71(a)(2); see also Kaufman, supra, 165 N.J. at 112 (noting that plaintiffs must "prove the misrepresentations and their ignorance of them"). While "[t]he [NJ]USL's drafters rejected any requirement that the buyer prove reliance on the untrue statement or the omission[,] [he] must show . . . that he did not know of it." Kaufman, supra, 165 N.J. at 112 (internal quotation marks omitted).

Although reasonable reliance is not required for the NJUSL claims, the same factors that support dismissal of the common law fraud claim apply. The language of the Prospectus also contradicts plaintiffs' allegations that they were "unaware" that the alleged misrepresentations "were untruthful." Thus, they cannot satisfy the statutory requirement that they did "not know[] of the untruth." N.J.S.A. 49:3-71(a)(2). Although the judge erred by dismissing these claims based on the absence of reliance, we review the order granting the motion to dismiss, not the judge's decision. See Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993) (holding that "appeals are taken from judgments, not from oral opinions or reasons"). Because the motion was properly granted, the order is affirmed.

III.

Plaintiffs next argue that the judge should have granted the reconsideration motion because Greenberg's supporting certification stated that he did not have the Prospectus at the time of the purchases. Further, they contend that the judge misapplied the law by relying on inapposite cases where the investors were in possession of prospectuses prior to making investments. Finally, reconsideration should have been granted because the judge erred in finding that reasonable reliance is required to establish a viable NJUSL claim under N.J.S.A. 49:3-71(a)(2).

We disagree for the reasons expressed above. Additionally, the judge properly declined to consider Greenberg's newly minted certification, which was at odds with his prior certification. The judge's factual determination that the new certification was inconsistent with the earlier one, which contained an admission that Greenberg had the Prospectus at the time of investing, was well within his discretion. See Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 192 N.J. 372, 386 (2007) (observing that the appellate court applied "an abuse of discretion standard to the motion court's factual determinations"). Thus, he did not "fail[] to appreciate the significance of probative, competent evidence." Capital Fin. Co., supra, 398 N.J. Super. at 310 (internal quotation marks omitted).

Affirmed.


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