On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1108-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2012 -
Before Judges Fisher and St. John.
Plaintiffs alleged in these consolidated actions that they lost approximately $8,000,000 as a result of their investment in defendant Maxwell Baldwin Smith's unlawful Ponzi scheme. In earlier proceedings, we affirmed Judge W. Hunt Dumont's dismissal of the claims against defendant Merrill Lynch, Pierce, Fenner & Smith because "plaintiffs had no relationship with Merrill Lynch, and because Smith had no relationship with Merrill Lynch other than as owner of the account into which the funds were placed." Frederick v. Smith, 416 N.J. Super. 594, 596-97 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011). We rejected the notion that Merrill Lynch had a duty to "periodically or regularly police the personal account maintained by Smith for indicia of fraud," observing that Merrill Lynch only "deposited [plaintiffs'] checks in Smith's account as directed and derived no financial benefit from the fact that checks may have been written directly to Merrill Lynch instead of Smith." Id. at 601.
Approximately seven months after the Supreme Court denied certification, plaintiffs moved to vacate the dismissal order, based on Rule 4:50-1(b) (newly-discovered evidence) and Rule 4:50-1(c) (fraud). Plaintiffs argued in the trial court that they were entitled to relief pursuant to Rule 4:50-1(b) because, in 2011, Merrill Lynch consented to the imposition of sanctions against it regarding Smith's movement of the misappropriated funds in question through his Merrill Lynch account, and that they were entitled to relief pursuant to Rule 4:50-1(c) because Merrill Lynch and its counsel had misrepresented Merrill Lynch's obligation, pursuant to federal law, to adopt an anti-money-laundering policy. Following Judge Dumont's retirement, the motion was heard and denied by Judge David B. Rand for reasons set forth in his cogent and thoughtful oral decision of January 6, 2012.
Plaintiffs appeal, arguing their entitlement to relief from the October 23, 2009 order of dismissal because:
I. THE COURT ERRED IN FAILING TO GRANT PLAINTIFF[S] RELIEF UNDER NEW JERSEY RULE OF COURT 4:50-1(b) BASED ON NEWLY DISCOVERED EVIDENCE WHICH WOULD ALTER THE JUDGMENT OR ORDER AND WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL UNDER RULE 4:49.
II. THE CONSOLIDATED PLAINTIFFS ARE ENTITLED TO RELIEF FROM THE JUDGMENT DUE TO THE MISREPRESENTATION OR OTHER MISCONDUCT ON THE PART OF MERRILL LYNCH AND ITS COUNSEL PURSUANT TO RULE 4:50-1(c).
III. MERRILL LYNCH BOTH OWED A DUTY TO THE CONSOLIDATED PLAINTIFFS UNDER FEDERAL ANTI-MONEY LAUNDERING STAUTES AND THE PATRIOT ACT AND ASSUMED A DUTY BY ADOPTING SPECIFIC REGULATIONS WHICH PROHIBITED MERRILL LYNCH FROM ACCEPTING THE CONSOLIDATED PLAINTIFFS' FUNDS IN THE INSTANT MATTER.
IV. THE PLAINTIFFS ARE ENTITLED TO RELIEF UNDER RULE 4:50-1(f).
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
First, although Merrill Lynch's 2011 settlement with the Financial Industry Regulatory Authority (FINRA) occurred after entry of the October 23, 2009 dismissal order*fn1 and, thus, may in a general sense be viewed as something new or newly-discovered, Merrill Lynch correctly argues that the settlement of that regulatory matter has no bearing on the dismissal of plaintiffs' claims against Merrill Lynch. That is, relief from a final judgment or order is authorized only for newly-discovered evidence that "would probably alter the judgment." R. 4:50-1(b); see DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) (holding that a movant pursuant to this subsection must demonstrate the new evidence "would probably have changed the result"). The settlement agreement does not demonstrate or otherwise suggest that Merrill Lynch owed a duty of care to non-customers such as plaintiffs. In fact, in executing the settlement agreement, Merrill Lynch asserted that it neither admitted nor denied its liability in that regulatory matter but only consented to the imposition of sanctions based on the facts outlined in the agreement.*fn2 For that reason alone, the settlement agreement was not admissible or germane to establishing whether Merrill Lynch owed a duty to plaintiffs or others similarly situated. See Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893-94 (2d Cir. 1976) (holding that "a consent judgment between a federal agency and a private corporation which is not the result of an actual adjudication of any of the issues . . . can not be used as evidence in subsequent litigation between that corporation and another party"); see also N.J.R.E. 408; Shankman v. State, 184 N.J. 187, 207 (2005); Leslie Blau Co. v. Alfieri, 157 N.J. Super. 173, 200 (App. Div.), certif. denied, 77 N.J. 510 (1978). As a result, Judge Rand correctly viewed the settlement agreement as inessential in determining whether Merrill Lynch owed a duty of care to these plaintiffs.
In asserting their right to relief based on Rule 4:50-1(c), plaintiffs claim that Merrill Lynch and its representatives made false and misleading comments about the existence or scope of Merrill Lynch's duty to monitor Smith's account. We agree there was no misrepresentation and that plaintiffs' claim is based on statements of Merrill Lynch's counsel that were taken out of context. Viewed in light of the following additional comments made by Merrill Lynch's counsel during oral argument on the motion to dismiss, it is clear that Merrill Lynch candidly acknowledged that the circumstances may have had regulatory consequences; that is, in answering a question posed by the trial judge, counsel recognized that what occurred maybe . . . raises regulatory issues, maybe a regulator would have issues with that, the fact that checks -- $8 million ...