Tutor Perini Corporation v. Banc of America Securities LLC , 842 F.3d 71 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1945
TUTOR PERINI CORPORATION,
Plaintiff, Appellant,
v.
BANC OF AMERICA SECURITIES LLC, n/k/a Merrill Lynch, Pierce,
Fenner & Smith, Incorporated, successor by merger; BANK OF
AMERICA, N.A.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
George F. Carpinello, with whom Adam R. Shaw, John F. Dew,
and Boies Schiller & Flexner, LLP were on brief, for appellant.
Jonathan Rosenberg, with whom B. Andrew Bednark, Leah
Godesky, and O'Melveny & Myers LLP were on brief, for appellees.
___________________
November 21, 2016
___________________
THOMPSON, Circuit Judge.
OVERVIEW
Today's dispute is part of the fallout from the financial
system's near meltdown in the late 2000s. On one side of this
dispute is Tutor Perini Corporation ("Tutor Perini"). On the other
side is Banc of America Securities LLC and Bank of America, N.A.
("BAS" and "BANA," respectively). To hear Tutor Perini tell it,
BAS — acting as its broker-dealer, and with BANA's knowledge and
acquiescence — sold it auction-rate securities ("ARS") without
disclosing that the ARS market was heading for a spectacular
crash.1 But to hear BAS and BANA tell it, BAS actually disclosed
the risks that later materialized. An obviously unconvinced Tutor
Perini sued BAS and BANA in federal district court, alleging
securities fraud under state and federal law, as well as a medley
of other state-law claims. On cross-motions for summary judgment,
the district judge sided with BAS and BANA. Concluding that
triable claims exist worthy of a jury's time and attention, we —
for reasons recorded below — affirm in part, vacate in part, and
remand.
1 We apologize for all the acronyms — they seem to go with
the territory in cases like this, however.
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HOW THE CASE GOT HERE2
(a)
The Players
Tutor Perini is a giant construction company. And like
most corporate colossi, Tutor Perini is extremely cash-conscience:
it focuses daily on ensuring that it has enough cash on hand to
fund its operations, and it traditionally pours any spare cash
into short-term, low-risk, highly-liquid investments (like
certificates of deposit and money-market funds) — i.e.,
investments that will let Tutor Perini get cash back as quickly as
possible whenever the need arises.
Which is where BAS came in. A wholly-owned subsidiary
of BANA, BAS — now known as Merrill Lynch, Pierce, Fenner & Smith,
Incorporated — is a banking company registered as a broker-dealer
with the Securities and Exchange Commission. BAS was a moving
force behind Tutor Perini's financial approach. And their
relationship went back a ways.
Having gotten into financial trouble in the mid-1990s,
Tutor Perini found itself in what is called a "workout period,"
generally defined as a time when the debtor and the creditor try
to hammer out an agreement to reduce or discharge a debt. During
2
As required, we take the facts as favorably to Tutor Perini's
case as the record permits. See, e.g., Lang v. Wal-Mart Stores
East, L.P., 813 F.3d 447, 450 (1st Cir. 2016).
- 3 -
that stretch, BAS served as Tutor Perini's banking advisor under
a revolving credit agreement. To help Tutor Perini regain its
financial footing, later credit agreements between them put limits
on the kinds of cash investments Tutor Perini could make — as a
for-instance, Tutor Perini could not invest in ARS.
(b)
An ARS Primer
Backed by a variety of assets or revenue sources —
student loans or municipal assets, for instance — ARS are long-
term investments, often with maturity dates of 20 years or more.
In the student-loan ARS market, student loans originated under the
Federal Family Education Loan Program ("FFELP") were considered
high-quality because they were largely guaranteed by the federal
government. The credit quality of non-FFELP-backed student-loan
ARS and municipal ARS was often enhanced by guarantees — a "wrap"
— from "monoline" insurance companies like Ambac Assurance
Corporation, which agree to make interest and principal payments
if an issuer defaults (i.e., Ambac "wraps" its own credit rating
around the debt obligation and guarantees timely interest and
principal payments in a default situation).3
3 Monoline insurance companies "provide[] guarantees to
issuers, often in the form of credit wraps, that enhance the credit
of the issuer. These insurance companies first began providing
wraps for municipal bond issues, but now provide credit enhancement
for other types of bonds, such as mortgage-backed securities and
collateralized debt obligations." See Monoline Insurance Company,
- 4 -
Parties buy or sell ARS at periodic auctions (held, say,
every 7, 28, or 35 days, depending on the particular ARS), with
the ARS's interest rate set there too. These are nonpublic
auctions. Placing bids via authorized broker-dealers, would-be
investors say how many ARS they want and what interest rate they
will accept (ARS are always bought and sold at par value, so buyers
bid by specifying an interest rate rather than a price). The
lowest interest rate needed to sell off all available ARS becomes
the "clearing rate." And the clearing rate becomes the ARS's
interest rate until the next auction. ARS have caps on the highest
possible clearing rate, known in the biz as the max rate, which
for our purposes is calculated using a byzantine formula based
partly on indices like the London Interbank Offered Rate or the
Treasury rate (two well-known indices in the financial markets
measuring interest rates). If there are enough buy bids below the
max rate so as to allow for the sale of all available ARS, then
the auction is deemed a success; but if not, then not — in which
case ARS sellers must keep their ARS until the next successful
auction, all the while earning interest at the max rate.4
Investopedia, www.investopedia.com/terms/m/monolineinsurance.asp
(last visited Oct. 24, 2016).
4 An illustration may be helpful: suppose the market demand
required that certain ARS pay 6% interest — if the ARS's max rate
was 5%, then the auction would fail because bids above 5% could
not be accepted by the auction agent (so there would be no sales).
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Like some other broker-dealers, BAS played several roles
in the ARS market — structuring and underwriting ARS on behalf of
issuers; soliciting and placing ARS orders for investor-customers;
and preventing auction failures by committing its own capital to
buy ARS for its inventory accounts, from which it sold ARS to its
customers. Ultimately, though, the ARS market was not terribly
transparent. Among other unknowables, investors usually did not
know if an auction only succeeded because of a broker-dealer
support bid. They could only learn that from an authorized broker-
dealer. Obviously, this lack of transparency made ARS buyers
heavily dependent on their broker-dealers for key data to make
sound investment decisions.5
5 Tutor Perini's expert did a good job of highlighting the
ARS market's opaqueness and explaining what that meant to
investors:
The ARS market in 2007-2008 lacked fundamental
transparency for investors. Investors simply could not
obtain independently much of the material information
regarding those investments and markets. They could
only know critically important information if their
broker(s) told them. That meant that all investors were
essentially "broker-dependent" for material information
necessary to exercise independent judgment regarding
their investments.
"Auction Agents," the expert added, "were generally authorized
under the terms of many ARS to release the information concerning
the maximum rate, bidding amounts, and other auction data only to
the issuer and Authorized Broker-Dealers" — "[d]isclosures to
investors were not authorized."
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(c)
BAS's ARS Pitch
In 2004, Tutor Perini opened a nondiscretionary-
investment account with BAS — i.e., an account that required BAS
to get Tutor Perini's authorization before making account
transactions; according to Tutor Perini's treasurer Susan Mellace,
BAS would give her investment "options," and she would choose from
a BAS-provided "recommended list." A certified public accountant
with a master's degree in finance, Mellace reported to Tutor
Perini's chief financial officer, who in turn reported to Tutor
Perini's president. And she discussed what "vehicles" — stocks,
bonds, etc. — she wanted to invest in with these gentlemen, though
"[i]n terms of the day-to-day purchases and sales," those were her
calls to make.
Keenly aware of Tutor Perini's investment strategy
(i.e., avoiding risks and illiquidity), BAS pitched ARS to Tutor
Perini at an in-person meeting in May 2006 — even though (as we
noted) its own credit agreement with Tutor Perini banned the
company from investing in ARS. During the confab, BAS salesperson
Lois McGrath gave Mellace a PowerPoint presentation on ARS.
Mellace knew nothing about ARS — she "had never" even "heard of"
ARS before "that presentation," she later explained. And up to
that point, Tutor Perini had never invested in them.
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One of McGrath's PowerPoint slides explained how BAS
offered "the full spectrum of fixed income securities underwritten
by [BAS], traditional money market funds, and customized
portfolios" — "[a]ll of which can be tailored to meet your specific
investment guidelines" — and promised BAS's "[s]trict focus on
thoroughly identifying your portfolio objectives and understanding
your ongoing investment needs, rather than on executing
transactions," by providing "[i]nvestment solutions that meet your
needs by clearly defining the risk/reward of particular securities
and maintaining the highest level of client servicing." Another
slide stressed how BAS pledged that it would "work with [Tutor
Perini] to evaluate market conditions and determine which
investment" would "meet [Tutor Perini's] investment objectives."
Still another slide noted that ARS belonged in a portfolio as part
of Tutor Perini's "[c]ore cash" strategy, along with other short-
term investments like "U.S. Treasury Bills." Yet another slide
played up ARS's "[l]iquidity opportunities," stressing that
"[l]iquidity is enhanced by frequent auctions" and declaring that
"the ARS auction process has developed into an established and
mature market." Touting ARS's low risk and high liquidity, another
slide emphasized what "a valuable investment tool" "28-day ARS"
are for "[c]orporate cash managers" who "typically forecast their
cash needs on a monthly basis." The presentation, though, warned
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of "[p]otential risks," stating among other things that ARS
auctions could "fail[]" — with "[s]uch instances" typically caused
by the "deterioration of issuer credit quality." If an auction
failed, the slide added, ARS sellers would be unable to "sell their
securities." Mellace understood that auctions "could" — to quote
her deposition — "fail," which could "potentially" leave Tutor
Perini "holding the security."
Tutor Perini did not buy ARS in May 2006. A few months
later, in December 2006, McGrath again recommended that Tutor
Perini buy ARS at auction or from BAS's inventory. But after
reviewing the credit agreement between Tutor Perini and BAS —
which, to repeat, barred Tutor Perini from investing in ARS —
McGrath told Mellace to stick with money-market funds. Ever
persistent, BAS, through McGrath, amended the credit agreement in
January 2007 to allow for ARS as short-term investments.
(d)
BAS's "Contagion" Fears
Late in the summer of 2007, the ARS market — which BAS
had called a safe investment for Tutor Perini's "core cash" — took
quite a hit, with at least 60 auctions failing (presumably because
of a global-credit crunch). Although these ARS chiefly involved
subprime-mortgage lenders and their insurers, BAS knew immediately
that such failures could spread to the entire ARS market. Indeed,
BAS's head ARS trader sort of likened the situation to a contagion
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that could infect the rest of the ARS market. Actually, BAS's
public finance executive did call it a "contagion," saying BAS had
to "keep an eye on [it]."
To stop the contagion from advancing, a BAS senior
manager stressed three things to BAS personnel during an August
2007 risk-management call: one, "[r]educe balance sheet"; two,
"[d]on't be a hero, rein in traders, capture customer flow"; and
three, "[w]e come first" — "this is a tough environment and we
need to make decisions based on our own interests." Others spoke
up about the issue too, including a BAS trader who told her
supervisor that BAS's ARS portfolio faced the same risk of auction
failure that had hit the subprime-mortgage market. And she warned
that BAS had to support an upcoming auction in which Lehman
Brothers was the lead broker-dealer, or else the auction would
fail and investors would panic (at that time Lehman Brothers was
still a major investment bank). Still in contagion-fighting mode,
and thinking that increased sales could do the trick, BAS held an
in-house "Teach-in" — at the end of August 2007 — to give its
financial advisors "a more comprehensive understanding of Student
Loan ARS." And BAS stepped up its support bidding at auctions
too.
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(e)
A "Good Time" to Buy ARS
It was then — in September 2007 — that BAS's McGrath
emailed Tutor Perini's Mellace to see if Mellace could buy ARS,
saying it was "a good time" to dive into that market. Mellace
said that she could do some buying and asked McGrath if ARS were
"any better" than Tutor Perini's other investments. "Yes they
are," McGrath wrote back. And McGrath recommended that Mellace
buy AAA-rated student-loan ARS.
McGrath also told Mellace that an ARS auction had failed
in August 2007 — a failure, McGrath said, that related to mortgage-
backed ARS, a corner of the ARS market in which Tutor Perini would
not be investing. McGrath assured Mellace that BAS would support
the auctions of BAS-recommended ARS. Mellace ran the ARS-purchase
possibility by her bosses (Tutor Perini's chief financial officer
and its president), telling them that auctions could possibly fail,
in which case Tutor Perini "wouldn't have liquidity" until the
next auction — a "daily auction sheet" that McGrath sent Mellace
actually mentioned that risk. But because BAS's "interests . . .
aligned" with Tutor Perini's (Mellace's words, not ours) — the two
had a long-standing relationship, and BAS was the lead bank in the
credit agreement — the idea that the ARS would remain illiquid was
too "remote [a] possibility" to discuss, though (again) Mellace
knew that such a possibility existed.
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Mellace's overseers signed off on her investing in ARS,
but their okay depended on her investing in "high-quality, short-
term securities" — i.e., ARS's with "AA and AAA[]" credit ratings.
McGrath knew Mellace was only interested in high-credit-rated ARS.
And she knew about Tutor Perini's need for quick liquidity.
Anyhow, Tutor Perini finally bought the BAS-endorsed ARS. And
after this sale — and the other relevant sales too — BAS sent out
trade confirmations directing Tutor Perini to BAS's website, which
contained BAS's ARS disclosures saying that it "routinely" bid in
auctions, including to prevent failures, but had no obligation to
do so.6
These student-loan ARS had formulaic — as opposed to
fixed — max rates keyed in part to interest-rate indices like the
6 "BAS is permitted, but is not obligated, to submit orders
for its own account . . . and routinely does so in its sole
discretion," the disclosures read. Also,
[s]uch bids submitted by BAS may be designed to prevent
a Failed Auction . . . ; however, BAS is not obligated
to place such a bid in any auction, or to continue to
place such bids. . . . Investors should not assume that
BAS will place a bid . . . or that Failed Auctions or
unfavorable auction rates will not occur.
"BAS is not obligated to make a market in the securities," the
disclosures added, "and may discontinue trading in the securities
without notice for any reason at any time." Noting that BAS
"provides no assurance as to the outcome of any Action," the
disclosures cautioned that "there can be no assurance" that a
holder will be able "to resell the securities . . . on the terms
or at the times desired by the holder." Mellace recalled clicking
on the link to that website "once or twice."
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earlier-mentioned London Interbank Offered Rate or the Treasury
rate. At this time, however, both indices were trending downward
(thanks to a weakening economy), while investors were demanding
higher interest rates for ARS (because of concerns over the
creditworthiness of certain companies that insured various ARS,
evidently). The net result is that the space between the ARS max
rate and the rates demanded by ARS buyers — referred to by the
parties as the "headroom" — shrunk significantly, a phenomenon
that suggested that ARS auctions would likely fail if the trend
continued. Faced with this grim prospect, many issuers implemented
waivers that temporarily raised the max rate for some ARS —
"temporarily," because most were set to expire in January 2008.
(f)
Lack of Investor Demand
Concerned about the contagion and the possibility of
ARS-auction failure triggered by low max-rate caps, BAS started
tracking ARS max rates in early October 2007. Noticing a lack of
investor demand, BAS also ordered a review of its ARS inventory.
No one from BAS discussed this or the then-existing risks with
Mellace. But an October 5 Wall Street Journal article — titled
"Bond Tumult is Jostling Auction-Rate Securities" — did note that
"about 60 auctions worth $6 billion didn't find enough buyers in
August." Still, McGrath kept recommending ARS to Tutor Perini.
That same month, October 2007, McGrath, for example, emailed
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Mellace, encouraging her to buy student-loan ARS in BAS's own
inventory. Relying on McGrath's advice, Tutor Perini agreed to
take several of these ARS off BAS's hands, while knowing (to quote
from an internal Tutor Perini memo) that "there is no guarantee
that [an ARS] holder [will] be able to liquidate its holdings when
desired."
(g)
"One Step Away from Illiquidity"
As October turned to November, a senior BAS executive
emailed colleagues that "quite a few issues in [the] student loan
[ARS] market have come precariously close to failing." BAS did
not clue Mellace in on any of this. And McGrath kept touting ARS
as sound investments.
Continuing what looks like an effort to reduce its ARS-
risk exposure, McGrath emailed Mellace in mid-November that BAS
was offering "a lot" of its ARS "inventory" for sale at a
"discount." Tutor Perini bought one of those recommended student-
loan ARS that same day. A little later, BAS's senior risk manager
forwarded his boss a colleague's email warning that "[t]he ARS
market is one step away from illiquidity." So BAS continued making
support bids to avert auction failure.
Because of BAS's support bids, its ARS inventory swelled
to record levels in December. That did not sit well with BAS's
risk manager. He felt that the liquidity problems with ARS were
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so profound that BAS had to get rid of them, telling BAS staffers
that he was "very concerned about our ability to keep the [ARS]
programs floating." He had talked with "a lot of" salespersons,
he added, and "through tears from one of them" had learned that
they were "afraid that their clients are at risk." "ARS are ripe
to be the next problem," he ominously declared. And he recommended
that BAS hold no "ARS on [its] balance sheet." Another week went
by, and the risk manager told colleagues that "[t]he ARS really
bother[] me," emphasizing that the "ARS book could get ugly," and
warning that "[o]nce we have one failed auction, others will most
likely follow." So BAS ordered a "thorough review of max rates on
existing book" and told the "banking team" to "focus[]" on "getting
max rates adjusted as quickly as possible where needed."
Around mid-to-late December, Fitch Ratings (a major
credit-rating agency) issued a press release — carried by Reuters,
Dow Jones, and Business Wire — saying that some ARS issuers had
gotten "temporary waiver[s]" of their ARS's max rates. Mellace
did not recall seeing the report. But BAS personnel did see it.
And in response a BAS senior executive asked his colleagues, "[D]o
you think we should be doing more active education around this
subject with our [corporate investors] who buy student loans? This
might help them have a better understanding of the cash flow/credit
dynamic." BAS launched no education effort, however. Days after
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the report, BAS's risk manager stressed to a coworker how much he
"really [didn't] like" the "ARS product" because of the liquidity
problem. "When you want out," he observed, "you are [at] the
highest risk of not being able to get out!"
With its ARS inventory at sky-high levels, some of BAS's
top brass kicked around ways to protect BAS. BAS senior
executives, for instance, toyed with the idea of letting all ARS
auctions founder, laying out a step-by-step process to do this so
as to (hopefully) avoid legal liability. They then discussed
selectively failing certain auctions instead. They also urged
salespersons to "leave no stone unturned" in getting investors —
like Tutor Perini — to buy up BAS's ARS. And they continued
encouraging issuers to waive max rates.
Despite knowing that the risk/reward calculus for ARS
had changed dramatically, BAS disclosed none of these facts to
Tutor Perini. McGrath, for example, did not tell Mellace about
 the issues with max rates — that max rates could cause auction
failure, that issuers were executing more and more max-rate
waivers in the hope of preventing auction failure, etc.;
 the extent of broker-dealer support bids, though Mellace did
know that BAS made support bids;7
7
Tutor Perini's expert said that during the period pertinent
to this suit (early 2007 to early 2008), roughly 98% of the ARS
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 the record-setting level of ARS in BAS's inventory, plus the
swelling of ARS inventories at other broker-dealers;
 the unprecedented number of waivers being sought;
 the dwindling level of investor demand for ARS; or
 the internal BAS discussions to let certain ARS auctions fail.
Instead, McGrath urged Mellace to buy more. By December 2007,
Tutor Perini had become one of BAS's biggest buyers of ARS, with
about $196 million invested — though it sold off most of its ARS
at year's end (it wanted to convert its ARS to cash for year-end-
reporting purposes).
(h)
"Moving Paper"
On January 2, 2008, McGrath emailed Mellace a list of
"featured" ARS offerings. That same day, Tutor Perini bought about
$60 million worth of ARS. BAS's short-term trading director
updated BAS executives that afternoon on the ongoing efforts to
reduce BAS's ARS inventory and highlighted Tutor Perini's
purchase. "Perini," he noted, "who was an end of year seller[,]
came back in . . . and bought about 60mm." And he added that the
"main focus will be to continue moving paper" out of BAS's
inventory and onto its customers. The pattern became a script,
auctions that BAS participated in would have failed without BAS's
support bids.
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with BAS's moving more of its ARS inventory onto Tutor Perini
throughout that month. On January 7, for example, McGrath emailed
another ARS recommendation to Mellace, saying that "these are
available for CASH settle today," though "[i]nventory seems to be
thinning." Mellace bought some that very day. Two days later, on
January 9, McGrath again recommended that Mellace buy "featured"
ARS offerings. And again Mellace did just that.
Importantly, at least to BAS, the prospectuses for some
of these ARS stated things like:
 "[B]roker-dealers are not obligated to make a market in [ARS],
and may discontinue trading in [ARS] without notice for any
reason at any time."
 "Broker-Dealers are not obligated to continue to place
[auction] bids or encourage other bidders to do so . . . .
Investors should not assume that . . . Broker-Dealers will do
so or that 'auction failure events' and unfavorable Auction
Rates will not occur."
 Auction failures were "especially" likely "if, for any
reason, the broker-dealers were unable or unwilling to bid."
 Also, "[t]he relative buying and selling interest of market
participants in your [ARS] and in the [ARS] market as a whole
will vary over time, and such variations may be affected by,
among other things, news relating to the issuer, the
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attractiveness of alternative investments, [and] the
perceived risk of owning the security (whether related to
credit, liquidity or any other risk) . . . ."
 And ARS may be unsuitable investments "if you require a
regular or predictable schedule of payments or payment on any
specific date."
Unfortunately for all concerned, market conditions went
from bad to worse. Among other problems, broker-dealer inventory
increased; the headroom between investor-demanded interest rates
and max rates continued narrowing; ARS auction failures — including
auction failures for student-loan ARS — occurred; and no new ARS
investors appeared. McGrath did not tell Mellace about this,
however. And on the very day a competing broker-dealer let an
auction for AAA-rated student-loan ARS fail, BAS sold almost $30
million worth of AAA-rated student-loan ARS to Tutor Perini. Also,
when a higher-up at a BAS affiliate suggested that portfolio
managers protect their clients by "begin[ning]" to "eliminat[e]
. . . client exposure to [ARS] and refrain[ing] from additional
purchases," a BAS ARS trader-desk liaison wrote, "Whoever sent
this out should be shot!! Are they trying to put us out of
business?" And BAS geared up to implement a plan (conceived in
December 2007) to selectively fail auctions.
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On February 6, 2008, with the rate of auction failures
"crescendoing" — that is how BAS's risk manager described this
"crisis" situation — senior BAS executives sent a memo to BAS's
chief financial officer seeking permission to up ARS inventory
levels so BAS could relieve some of its balance-sheet pressure.
Among other things, the memo mentioned the existing state of the
market, spotlighting increasing concerns about the ARS market, its
liquidity, and the drastic rise in broker-dealer inventories. The
memo also stressed that "the key structural issue" — the need to
increase max rates — had still not been resolved. BAS management
green-lighted an increase, bumping the internally-imposed limit on
inventory levels for ARS (and ARS-like securities) from $3 billion
to $8 billion. But it was too late.
(i)
The Market Crackup
Over the next two days, February 7 and 8, broker-dealers
Goldman Sachs and JP Morgan Chase let large numbers of ARS auctions
fail — Goldman, for instance, failed several AAA-rated student-
loan ARS auctions. BAS personnel called the Goldman failures
"unprecedented" and "market changing." BAS's head ARS trader
jotted a note to himself that "mgmt. not comfortable std. loan
product" — a jotting, he later explained, that referred to BAS's
concerns about the student-loan product following the Goldman/JP
Morgan failures. Yet even though BAS officials knew these failures
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made the ARS market "nonviable,"8 McGrath sold Tutor Perini more
ARS on February 8 and 11 (McGrath knew about the Goldman failures
because she had emailed her boss about them on February 8). Also
on February 11, the Wall Street Journal reported on Goldman's
auction failures — Goldman, the article said, had "held auctions
of hundreds of millions of dollars in securities backed by student
loans, all of which failed to drum up enough demand at their asking
prices." The next day, McGrath told Mellace about the February 7
and 8 failures. Even though BAS's disclosures stated that BAS
could stop supporting auctions at any point and that BAS offers
"no assurances" about the outcome of any auction, McGrath told
Mellace that BAS still intended to support the auctions.
But then this happened: all other prominent broker-
dealers stopped making their own ARS-purchase bids. And faced
with that reality, BAS did the same thing on February 13. Auctions
for student-loan ARS failed en masse — even BAS withdrew its
support from the student-loan ARS market. Auctions for ARS with
formulaic max rates failed big time too. But the majority of
auctions involving ARS with high, fixed max rates generally did
not fail. So BAS's risk manager recommended supporting ARS with
max rates greater than 9% and failing all others. Because the at-
8 We put that word in bold type to make sure no one misses
it.
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issue ARS were of the formulaic variety, Tutor Perini was left
holding "illiquid" investments — its nightmare scenario.
(j)
Off to Federal Court
Invoking federal-question jurisdiction, see 28 U.S.C.
§ 1331, Tutor Perini sued BAS and BANA in Massachusetts's federal
district court. Pertinently, Tutor Perini's complaint contained
counts for federal securities fraud (alleging what are called
10(b)-fraud and 10(b)-unsuitability claims); state securities
fraud; state deceptive business practices; as well as state common-
law misrepresentation (both negligent and intentional).9 After
some preliminary skirmishing (not relevant here), BAS and BANA
moved for summary judgment on all claims, and Tutor Perini cross-
moved for partial summary judgment on the state-securities-fraud
claim and the state deceptive-business-practices claim. The judge
granted BAS and BANA's motion and denied Tutor Perini's (more on
the judge's ruling later). A dissatisfied Tutor Perini appeals.
9 We say "pertinently," because Tutor Perini brought other
claims (e.g., common-law fraud), but its brief presents argument
only on the claims just listed — so obviously Tutor Perini waived
any right to challenge the dismissal of the other claims. See
generally Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175
(1st Cir. 2011).
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STANDARD OF REVIEW
We approach the judge's summary-judgment ruling de novo,
viewing (as we intimated earlier) all facts and drawing all
reasonable inferences in the light most agreeable to Tutor Perini
(the summary-judgment loser). See Collazo–Rosado v. Univ. of P.R.,
765 F.3d 86, 89, 92 (1st Cir. 2014). And we will affirm only if
the record (so viewed) discloses no genuine dispute over a material
fact and reveals BANA's and BAS's entitlement to judgment as a
matter of law. See id. at 92. An issue is genuine if a sensible
jury could decide the point in Tutor Perini's favor. See Tropigas
de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637
F.3d 53, 56 (1st Cir. 2011). And a fact is material if it has
the potential to alter the case's outcome under the applicable
law. See id. That each side cross-moved for summary judgment
does not warp this line of inquiry: "[b]arring special
circumstances, the [judge] must consider each motion separately,
drawing inferences against each movant in turn." EEOC v. Steamship
Clerks Union, Local 1066, 48 F.3d 594, 603 n.8 (1st Cir. 1995).
And ultimately, we may affirm the summary-judgment holding on any
grounds supported by the record, even if not relied on by the
district judge. See, e.g., Collazo–Rosado, 765 F.3d at 92.
- 23 -
OUR TAKE ON THE CASE
Now on to the core issues in play, which — after dealing
with the easiest one first — we discuss in the order Tutor Perini
chose to present them.
(a)
BANA Stays Out
Stressing that Tutor Perini failed to identify any
misconduct on its part, BANA asked the judge to jettison all claims
against it. Not so fast, said Tutor Perini: federal and state
securities laws "extend liability to control persons," and, the
argument continued, BANA is on the hook as a "controlling person,"
given the actions of two BANA employees and two dual BAS/BANA
employees who had "analyzed maximum rate waivers and liquidity
risks for deciding which auctions to fail." Unfazed, BANA shot
back that Tutor Perini never pled "federal and state control-
person claims . . . in four years of litigation" and could not
début those new claims in its summary-judgment submissions. The
judge thought BANA had the better of the argument. And so do we,
because Tutor Perini alleged zero facts indicating that BANA
actually exercised control over BAS. See Aldridge v. A.T. Cross
Corp., 284 F.3d 72, 85 (1st Cir. 2002) (emphasizing that "the
alleged controlling person must not only have the general power to
control the company, but must also actually exercise control over
the company"). Seeking a way around that problem, Tutor Perini
- 24 -
now says that BAS needed BANA's blessing to expand its ARS
inventory in February 2008 — surely that shows control, Tutor
Perini insists. But Tutor Perini waived that point by not bringing
it to the district judge's attention, and Tutor Perini makes no
argument that any exception to the raise-or-waive rule applies.
See, e.g., Ouch v. Fed. Nat'l Mortg. Ass'n, 799 F.3d 62, 67 n.5
(1st Cir. 2015).
With BANA out of the way, we turn to the judge's handling
of the claims against BAS.
(b)
State Securities-Fraud Claim
Like most states, Massachusetts regulates in-state
securities sales and offers "through 'blue sky' laws, so named
because they initially targeted swindlers so brazen and so
shameless they would peddle shares of anything, including
(allegedly) shares of the sky." See Bennett v. Durham, 683 F.3d
734, 736 (6th Cir. 2012) (citing Jonathan R. Macey & Geoffrey P.
Miller, Origin of the Blue Sky Laws, 70 Tex. L. Rev. 347, 359–60
& n.59 (1991)). Designed to create "a strong incentive" for
securities sellers "to disclose fully all material facts about the
security," Marram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017,
1025 (Mass. 2004), Massachusetts's law says that "any person who
. . . offers or sells a security by means of any untrue statement
of a material fact or any omission to state a material fact . . .
- 25 -
is liable to the person buying the security from him." Mass. Gen.
Laws ch. 110A § 410(a)(2).
Simplifying slightly (but without affecting our
analysis), we see that to prevail under this statute, a plaintiff
must show (1) that the defendant offered or sold securities (2) in
the Bay State (3) by (a) making an untrue statement of material
fact or (b) omitting a material fact (4) that the plaintiff (a) did
not know was false or (b) did not know was omitted and (5) the
defendant knew or should have known was untrue or misleading.
Marram, 809 N.E.2d at 1026 (discussing Mass. Gen. Laws ch. 110A
§ 410(a)(2)). Significantly, the plaintiff need not show either
reasonable reliance on its part or a bad mind on the seller's part.
See id. at 1026-27. The plaintiff's sophistication is irrelevant
as well. Id. at 1027. And the plaintiff has no duty to check the
accuracy of the defendant's statements — "[a]ll that is required"
is that the plaintiff show its "ignorance of the untruth or
omission." Id. (quoting Sanders v. John Nuveen & Co., 619 F.2d
1222, 1229 (7th Cir. 1980)).10
Zeroing in on element (3), the district judge concluded
that Tutor Perini "failed to offer evidence that BAS made any
10Because state and federal securities-fraud acts are fairly
similar, cases interpreting the federal statute can help in
interpreting the state statute. Id. at 1025.
- 26 -
untrue statement of material fact or omitted a material fact that
is necessary to make a prior statement not misleading." The
parties fight like mad over element (3) too, though they do not
clash over the materiality facet of element (3). And each side
makes good points. But Tutor Perini is more right than BAS, as we
now explain.
BAS thinks that Tutor Perini waived its
misrepresentation arguments by not calling them to the judge's
attention. For its part, Tutor Perini basically concedes that its
memo opposing BANA and BAS's summary-judgment motion did not cite
"the many instances of material misstatements," though it sees no
problem because "all the relevant facts were fully set forth" in
its statement of undisputed facts "in support of its cross-motion
for summary judgment." That does not cut it. "Judges," after
all, "are not like pigs, hunting for truffles buried in" the
record. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(per curiam); accord Rodríguez–Machado v. Shinseki, 700 F.3d 48,
50 (1st Cir. 2012) (per curiam). So BAS is right about the
misrepresentation argument being waived. See Ouch, 799 F.3d at 67
n.5 (discussing the raise-it-or-waive-it rule).
The omissions issue is a different matter altogether,
however. Tutor Perini's summary-judgment papers sounded a
consistent theme — that BAS "failed to disclose" "material facts
- 27 -
concerning the current state of the ARS market" when it was
peddling ARS to Tutor Perini. "Having recommended the ARS," Tutor
Perini wrote, "having provided boilerplate disclosures, having
presented ARS as a good short-term investment vehicle in person
and in writing, having provided information about the state and
liquidity of the ARS market[,] and having discussed specific ARS
with Tutor Perini on a daily basis, BAS was duty bound" not to
omit key facts. And it is to that preserved argument that we now
turn.
(1)
Presence of Trialworthy Issues
Omissions are failures to speak, at least in the context
of this case. See Omission, Black's Law Dictionary (10th ed.
2014). Examples of omissions include a speaker's not speaking
when she has a duty to speak, or speaking misleading half-truths
— i.e., offering truthful comments but omitting unfavorable info.
See, e.g., Nei v. Burley, 446 N.E.2d 674, 676 (Mass. 1983);
Kannavos v. Annino, 247 N.E.2d 708, 711-12 (Mass. 1969). Tutor
Perini's briefs to us talk a lot about the different sources of
disclosure duties that it has in mind.11 But we limit our review
11
Tutor Perini, for example, says that a rule put out by
something called the "Municipal Securities Rulemaking Board"
creates an independent disclosure duty. This argument never
surfaced in the district court. And having been given no reason
- 28 -
to what it argued below, and basically repeats here: "This case,"
Tutor Perini told the district judge,
is about whether BAS omitted to state material facts it
knew about the ARS market at the time BAS was
specifically recommending [and selling] ARS . . . to
Tutor Perini and was talking to and writing to Tutor
Perini every day to provide it with information about
the ARS.
Given that BAS spoke, it had "a duty to be complete and accurate"
— or so Tutor Perini insisted, and still insists.12
The parties basically agree that BAS made specific
investment recommendations to Tutor Perini. Below, Mellace flat-
out said in her affidavit that she "followed Lois McGrath's
recommendations when purchasing ARS on behalf of Tutor Perini."
All of this recommendation stuff is significant because even though
Tutor Perini had a nondiscretionary-investment account, BAS could
to relax our raise-or-waive rule here, we deem it waived. See,
e.g., Ouch, 799 F.3d at 67 n.5.
12 A quick heads-up: As part of the duty analysis, we need
not concern ourselves with McGrath's assurances to Mellace that
BAS would continue to support the ARS auctions. And that is
because Tutor Perini's opening brief concedes that its "claims are
not based upon reliance" on BAS's auction-support "promise,"
despite McGrath's "specific representation to Mellace . . . the
day before BAS withdrew its support for virtually all formulaic
ARS" — instead, Tutor Perini basically bottoms its claims (as it
did below) on "the fact that BAS" possessed "material facts about
the then-existing state of the market, including its own internal
discussions to fail auctions, that should have been disclosed to
[Tutor Perini] so that [Tutor Perini] could have been aware of the
state of market and would have known, as BAS knew, that the market
was on the verge of collapse at the very time BAS was urging [Tutor
Perini] to buy ARS."
- 29 -
only suggest a security after "studying it sufficiently to become
informed as to its nature, price, and financial prognosis." See
Patsos v. First Albany Corp., 741 N.E.2d 841, 849-50 n.15 (Mass.
2001). Also, BAS had to "inform" Tutor Perini "of the risks
involved in purchasing or selling [that] security." See id. And
BAS's affirmative assurance that it would "clearly defin[e] the
risk/reward of particular securities" discredits any notion that
it could point Tutor Perini toward additional ARS purchases even
as the risks dramatically changed without alerting Tutor Perini to
those dramatic changes.13
13 Here's a refresher on some of the dramatic changes:
 In November 2007, a BAS officer concluded that "[t]he ARS
market is one step away from illiquidity."
 Convinced that "ARS are ripe to be the next problem" — BAS's
risk manager told a colleague in December that "[o]nce we
have one failed auction, others will most likely follow."
Also that month, BAS — fretting about its ballooning ARS
inventory (which was at an all-time high) — ordered that "no
stone" be left "unturned" in getting investors to gobble up
BAS's ARS. And BAS continued pressing ARS issuers to waive
max rates so as to make the ARS market appear less risky to
investors.
 As the calendar flipped, BAS heard that Lehman Brothers let
several ARS auctions go kaput in late January 2008 — at or
very near the time that BAS offloaded the ARS at issue to
Tutor Perini. Deeply troubled by these failures, a BAS
affiliate urged its mangers to protect clients by getting out
of the ARS market. BAS did no such thing (at least BAS has
pointed us to nothing in record that it did) — what BAS did
do, though, was set in motion a plan (hatched a month earlier)
to selectively fail auctions. But the market's death spiral
accelerated, with other broker-dealers letting auctions fail
days later, including an auction involving AAA-rated student-
- 30 -
Viewed against this legal backdrop, we think that the
record — considered afresh, and in the light most flattering to
Tutor Perini — reveals trialworthy issues on Tutor Perini's state
securities-fraud claim, making summary judgment on that claim
inappropriate. Without expressing our own views on the issues, we
believe a reasonable jury could find the following:
 In convincing Tutor Perini to buy ARS, BAS's McGrath expressly
told Tutor Perini's Mellace that BAS would provide
"investment solutions that meet your needs by clearly
defining the risk/reward of particular securities . . . ."
 Tutor Perini bought the ARS at issue here in January and
February 2008 because BAS had recommended that Tutor Perini
buy them.14
loan ARS — a failure that occurred on the very day BAS sold
Tutor Perini roughly $30 million of AAA-rated student-loan
ARS.
 On February 7, Goldman Sachs let a bunch of ARS auctions fail
— a "market changing event," to quote a person in the know at
BAS. J.P. Morgan let more auctions fail the day after that.
BAS disclosed none of this to Tutor Perini, however. And
even though BAS management knew the market had become
"nonviable," McGrath continued selling ARS to Tutor Perini.
14
The parties quibble over the exact number of ARS at issue
— Tutor Perini says it is 14; BAS says it is 8. But neither side
explains why that matters for our purposes. So we say no more
about that subject.
- 31 -
 But the ARS's risk/reward had materially and dramatically
changed such that by January 1 or, alternatively, by February
7, BAS's risk/reward description to Tutor Perini no longer —
thanks to BAS's omissions — accurately and clearly defined
the actual risk/reward as McGrath pushed the at-issue ARS on
Mellace.
On this record — seen from a Tutor-Perini-friendly
perspective — a sensible jury could conclude that some or all of
Tutor Perini's 2008 ARS buys were the product of prior risk/reward
assessments that remained alive yet over time became inaccurate
because BAS failed to reveal new, highly material developments
that it knew of as McGrath steered Mellace to the at-issue ARS.
Compare generally Patsos, 741 N.E.2d at 849-50 n.15 (emphasizing
that a broker handling nondiscretionary accounts has a "duty to
inform the customer of the risks involved in purchasing or selling
a particular security"), with Backman v. Polaroid Corp., 910 F.2d
10, 16 (1st Cir. 1990) (en banc) (noting that "a voluntary
disclosure of information that a reasonable investor would
consider material must be 'complete and accurate'" — a concept
that means that one must reveal "such other[]" information that is
"needed so that what was revealed [will] not be 'so incomplete as
to mislead'" (quoting SEC v. Tex. Gulf Sulphur Co., 401 F.2d 833,
862 (2d Cir. 1968))).
- 32 -
Further strengthening our conviction on this score, we
believe that a rational jury could view the evidence as indicating
that Tutor Perini's 2008 ARS purchases were simply replacing ARS
that it had sold just before the end of 2007: after all, Tutor
Perini did not want the ARS on its balance sheet at year's end,
and BAS knew of this plan. These facts could give a rational jury
all the more reason to infer that BAS's late-2007 representations
— that ARS were "better" than Tutor Perini's other investment
options and that it was "a good time" to invest in ARS, for example
— carried over to its early 2008 ARS purchases. Given that the
circumstances had changed, arguably materially so, a rational jury
could find that BAS was required to supplement its previous
recommendations lest they be inaccurate by way of being incomplete.
(2)
Absence of any Winning BAS Counterarguments
Undaunted, BAS raises a host of arguments for why we
should affirm the summary judgment on the state securities-fraud
claim. Though skillfully presented by talented counsel, none of
BAS's contentions persuades.
On the duty question, BAS notes that while "a voluntary
disclosure of information that a reasonable investor would
consider material must be 'complete and accurate,'" that "does not
mean that by revealing one fact . . . , one must reveal all others
that, too, would be interesting, market-wise." Backman, 910 F.2d
- 33 -
at 16 (quoting Roeder v. Alpha Indus., Inc., 814 F.2d 22, 26 (1st
Cir. 1987)). True, but what BAS overlooks is that the law — as we
noted in an earlier case parenthetical — requires one to disclose
"such other[]" facts "that are needed so that what was revealed
would not be 'so incomplete as to mislead.'" Id. (quoting Tex.
Gulf Sulphur Co., 401 F.2d at 862). And here, a jury could find
that BAS acquired info that caused it to be desperate to sell all
of its own ARS, yet it kept that info to itself when recommending
that Tutor Perini buy ARS.
Moving on, BAS implies that the February 2008 collapse
occurred suddenly, so suddenly that it had no idea the market would
crumble — something that is inferable from its just-before-the-
crash decision to raise the limit (from $3 billion to $8 billion)
on the amount of ARS it could hold on its balance sheet. If BAS
thought the market was about to go belly-up, the argument goes, it
wouldn't have authorized the increase — an action that showed (to
quote its brief) that BAS was simply "trying to keep the auctions
going in the hope of weathering the storm." But the problem for
BAS is that other evidence cuts against any suddenness inference:
BAS, don't forget, saw danger signs aplenty well before the
collapse, as shown by its
 talking internally about a "contagion" in summer 2007;
- 34 -
 knowing broker-dealers (including itself) had massive,
unsustainable ARS inventories as events dragged into 2008,
inventories that were causing them to lose the ability to
make all-important support bids; and
 realizing the ARS market was "one step away from illiquidity"
near the end of 2007.
We could go on and on, but you get the idea. As for BAS's storm-
weathering metaphor, a levelheaded jury could conclude that BAS
knew perfectly well that it and other broker-dealers were in the
midst of a transcendently-awful financial storm, with disaster
looming — yet BAS concealed the storm's existence from Tutor
Perini. And because this suddenness matter is "open to reasonable
dispute," it is "not the stuff of summary judgment." See Mason v.
Telefunken Semiconductors Am., LLC, 797 F.3d 33, 41 (1st Cir.
2015).
BAS also faults Tutor Perini for not divining the
problems with the ARS market on its own. To that we say this: A
rational jury could find that Mellace did not have a clear picture
of the market's actual state, which is why she relied so much on
McGrath. And whether she should have ignored what McGrath said
and done her own research matters not one bit because
Massachusetts's Blue Sky law imposes no such obligation on
investors. See Marram, 809 N.E.2d at 1027 (noting that a buyer
- 35 -
has no "duty to investigate," emphasizing instead that "[t]he buyer
needs only to show 'lack of knowledge of a misleading statement or
omission'" to carry the day (quoting Mid–Am. Fed. Sav. & Loan Ass'n
v. Shearson/Am. Express Inc., 886 F.2d 1249, 1254 (10th Cir.
1989))).
Wait a minute, says BAS: Mellace knew of auction
failures "before" it chose to buy ARS back in September 2007,
courtesy of a chat with McGrath at that time. But Mellace swore
in an affidavit that McGrath only mentioned one auction failure
then — a failure, McGrath added, that involved mortgage-backed
ARS, an area of the market in which Tutor Perini would not be
investing its money. BAS tries to downplay this fact by talking
up an August 2007 email sent to Tutor Perini's president discussing
several fizzled auctions. But this is not a winning strategy.
The president said he did not read the email (he gets bombarded
with — and ignores — unsolicited missives like this one all the
time, he added). And BAS points to no evidence indicating that
any Tutor Perini personnel ever read that email. At best for BAS,
the email raises a question of fact about Tutor Perini's knowledge,
and so summary judgment cannot be used to resolve it. See, e.g.,
Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184,
190 (1st Cir. 1997).
- 36 -
Staying with auction failures, BAS writes that different
news outlets reported on some between August 2007 and February
2008. Repeating that Massachusetts imposes no duty on an investor
to investigate or verify the accuracy of a seller's statements,
see Marram, 809 N.E.2d at 1027, we note that Mellace said that she
did not know about auction failures (other than the one auction
failure in August 2007, of course) until McGrath fessed up to them
in February 2008 — after Tutor Perini had bought the ARS at issue.
Yes, McGrath did send Mellace articles discussing the credit
problems of some monoline insurers. But other summary-judgment
evidence indicates that McGrath never told Mellace whether or how
the monoline insurers' credit woes might impact Tutor Perini's ARS
investments. On top of this, still other evidence suggests that
the February 2008 collapse had nothing to do with insurance —
rather, it had to do with the fact that bidding rates for variable
ARS (whether insured or not) were going up while max rates were
going down. And additional evidence reveals that Mellace never
knew about this structural problem. BAS also talks about the
December 2007 press release that Fitch Ratings put out — you know,
the one that discussed how some ARS issuers had obtained temporary
max-rate waivers. Well, Mellace had no memory of seeing that
report. So what we have, again, are controversies of fact that
cannot be resolved through summary judgment. See Cortés-Irizarry,
- 37 -
111 F.3d at 190. More importantly, to the extent BAS still thinks
the August 2007 auction breakdown gives it a silver-bullet defense,
we stress that the issue here is not Tutor Perini's knowledge in
August 2007 — it is Tutor Perini's knowledge in January and
February 2008, when the significant events occurred.
Also missing the mark is BAS's argument that Tutor Perini
had access to two key things: (1) info regarding the max rates
for the at-issue ARS — all it had to do, BAS writes, was review
sent-out prospectuses and Excel spreadsheets, or ask BAS for the
max rates; plus (2) info concerning BAS's ARS-inventory levels —
all it had to do, BAS insists, was take emailed Excel files
reflecting the par amount of ARS held in BAS's inventory and then
use Excel's "auto-sum" feature to calculate BAS's ARS-inventory
level for any particular day. As for part (1) of BAS's argument,
other evidence shows BAS personnel knew that max rates were "hard
to figure out" and "understand" (even for financial advisors), and
that one could not calculate the max rate simply by reading
prospectuses. Additionally, the prospectuses said zip about what
was actually happening in the market (e.g., that issuers
continuously needed to waive max rates to prevent auction
failures). And other evidence indicates the spreadsheets were out
of date, having been created in December 2006 (months before Tutor
Perini bought any ARS). As for part (2) of BAS's argument, other
- 38 -
evidence also suggests BAS sometimes sent outdated, inaccurate,
and incomplete inventory indicators. The net result is these
issues are for a jury to sort out, not a judge on summary judgment.
See Cortés-Irizarry, 111 F.3d at 190.
And contrary to what BAS argues, its PowerPoint
presentation (which noted that ARS auctions could "fail") and its
disclosures on its public website (which say that BAS "routinely"
bids in ARS auctions, including to keep auctions from failing, but
isn't obliged to) do not change our decision.15 Here is why.
Tutor Perini essentially concedes it knew that BAS could
theoretically stop supporting ARS auctions and that ARS auctions
could theoretically fail. And BAS essentially concedes it would
have to reveal current-market facts in what is called "the classic
'Grand Canyon'" situation — i.e., a situation where the broker-
dealer makes risk disclosures that, given the market's state, are
akin to a hiker "warn[ing] his . . . companion to walk slowly
because there might be a ditch ahead when he knows with near
certainty that the Grand Canyon lies one foot away." See In re
Prudential Sec. Inc. Ltd. P'ships Litig., 930 F. Supp. 68, 72
(S.D.N.Y. 1996) (quotation marks omitted). Basically, the fight
15 For anyone interested in re-reading the website
disclosures, turn back to footnote 6 above.
- 39 -
is over whether a jury could rationally find that this is that
Grand-Canyon situation.
Our caselaw — as BAS is quick to note — says that when
a defendant "specifically . . . disclose[s]" a risk, "[t]o the
extent that the plaintiff's complaint is that the precise degree
of risk was not stated, that failure is not sufficient to have
rendered the statements misleading." See Hill v. Gozani, 638 F.3d
40, 60 (1st Cir. 2011) (emphasis omitted). BAS flashes Hill around
like a trump card, insisting that because it disclosed the possible
risks of auction failure and support-bid withdrawal, it did not
have to identify the degree of risk. But try as it might, BAS can
take no comfort from Hill.
Hill made several points directly applicable here. It
noted that "[a] statement of risk does not insulate the speaker
from liability, particularly where it is 'generic and formulaic.'"
Id. (quoting Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 245 (5th
Cir. 2009)). It noted that "[a] statement that discloses a level
of risk may be so understated as to be misleading." Id. And it
noted that a defendant could be on the hook for downplaying a
"near-certain[]" risk, id. at 59 — a concept that calls to mind
the Grand-Canyon scenario, where a defendant sees "disaster
looming on the horizon" but opts to whitewash reality, see id. at
58.
- 40 -
Applying those principles, we — after considering the
aggregate record facts in the light most sympathetic to Tutor
Perini — believe a rational jury could conclude BAS knew (but
elected not to disclose) that the ARS market teetered on the brink
of collapse when it encouraged Tutor Perini to snatch up more ARS.
That BAS specifically pushed ARS on Tutor Perini in winter 2007-
08 — despite (a) fearing the market was "one step away from
illiquidity," (b) knowing an auction for the same type of ARS had
recently flopped, and (c) realizing the market was "nonviable" —
surely suggest as much (those are but a few of the many danger
signs discussed above).16 Put slightly differently: viewing the
facts from the required perspective, a reasonable jury could find
that while BAS was taking steps to protect itself, it urged an
unsuspecting Tutor Perini to walk right off the cliff. Certainly
the question of whether these facts put the parties in the Grand-
Canyon situation should go to the jury. And that kiboshes BAS's
Hill-based arguments. See generally Dow Corning Corp. v. Merrill
16On the BAS-pushed-ARS point, please bear in mind Mellace's
affidavit testimony that she "followed" McGrath's "recommendation"
when buying ARS for Tutor Perini — testimony from which a
reasonable jury could find a connection between BAS's
communications to Tutor Perini and Tutor Perini's purchase of the
at-issue ARS. So taking as true Tutor Perini's version of the
facts as we must, this is not a case where Mellace simply contacted
McGrath to buy the at-issue ARS. Rather, the summary-judgment
evidence indicates Mellace bought the at-issue ARS on McGrath's
recommendation.
- 41 -
Lynch & Co. (In re Merrill Lynch Auction Rate Sec. Litig.), No. 09
MD 2030(LAP), 2011 WL 1330847, at *8 (S.D.N.Y. Mar. 2011)
(collecting caselaw recognizing that a defendant cannot "rely on
a generic disclaimer in order to avoid liability" when it is "aware
of an actual danger or cause for concern" (quotation marks and
emphasis omitted)); Dow Corning Corp. v. BB&T Corp., No. 09-5637
(FSH)(PS), 2010 WL 4860354, at *12 (D.N.J. Nov. 23, 2010)
(rejecting defendants' bid to rely on (among other things) news
articles and prospectuses that "publicized the risk that auctions
might fail and the practice of brokers to submit support bids to
prevent auction failures — the very facts supposedly concealed by
defendants," an outcome reached because the documents "did not
inform plaintiffs" of existing market facts).17
BAS's reliance on Backman is equally misplaced. There,
the Polaroid Corporation had disclosed a current market fact —
that it was selling its Polavision cameras below cost. 910 F.2d
at 16. And, we said, having done so, Polaroid's disclosure "was
not misleading by reason of not saying how much below." Id.Still, we added, "if management knew . . . that Polavision was a
17BAS tries to minimize the significance of these cases by
suggesting that they involved only misrepresentations. Not so —
the two involved omissions too. See In re Merrill Lynch Auction
Rate Sec. Litig., 2011 WL 1330847, at *4-5; Dow Corning Corp.,
2010 WL 4860354, at *2, *8, *11-12.
- 42 -
commercial failure, to say simply that its earnings were negative
might well be found to be a material misrepresentation by half-
truth and incompleteness." Id.; see also Carpri Optics Profit
Sharing v. Dig. Equip. Corp., 950 F.2d 5, 8 (1st Cir. 1991) (noting
how Polaroid could have come out differently "if defendant's
apprehension was of a disaster"). Today's case involves precisely
that — BAS knew about an impending disaster (or so a logical jury
could deduce) and, hoping to escape liability, now plays up
boilerplate disclosures that did not jibe with then-existing
market facts.
Noting that we can affirm on an alternative ground
supported by the record, BAS tries to save its summary-judgment
victory here by arguing that Massachusetts's Blue Sky law applies
only to initial public offerings — not to private, secondary sales,
like those that happened here. Its argument works in four steps.
1. Quoting Marram, BAS emphasizes how section 410(a) of the
state's Blue Sky law "is almost identical with" section
12(2) of the Federal Securities Act of 1933, see 809 N.E.2d
at 1025: refined to their essentials, the former act
creates a remedy against "[a]ny person who . . . offers or
sells a security by means of any untrue statement of a
material fact or any omission to state a material fact,"
see Mass. Gen. Laws ch. 110A § 410(a)(2), while the latter
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act creates a remedy against any person who "offers or sells
a security . . . by means of a prospectus or oral
communication, which includes an untrue statement of a
material fact or omits to state a material fact," see 15
U.S.C. § 77l(a)(2).
2. A prospectus "is a term of art referring to a document that
describes a public offering of securities by an issuer or
controlling shareholder" — a fact, BAS reminds us, that led
the Supreme Court to conclude that the federal statute is
limited to public offerings. See Gustafson v. Alloyd Co.,
513 U.S. 561, 575-76, 584 (1995) (emphasis added).
3. Again quoting Marram, BAS points out that courts must
"interpret" the Massachusetts statute "in coordination
with" the federal statute. See 809 N.E.2d at 1025.
4. And interpreting the acts in the same manner requires us to
hold that, like the federal act, the state act does not
apply to secondary-market sales — at least that is what BAS
thinks.
We think not. BAS is right that courts should look to federal-
act caselaw in interpreting the state act. See id. But courts
must look to the state act's "plain language" too. See id. And
unlike the federal act, the state act has no limiting "prospectus"
language and so is not likewise limited — Marram proves the point
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(at least implicitly) by characterizing the sale of shares at issue
there as a private offering, yet holding that the plaintiff had a
cause of action under the Commonwealth's Blue Sky law. See id. at
1022-24, 1028-30; see also Marram v. Kobrick Offshore Fund, Ltd.,
Nos. 01-2815-BLS1, 05-0672-BLS1, 2009 WL 1015557, at *6-7 (Mass.
Super. Ct. Jan. 30, 2009) (reading Marram that way too). All of
that makes us comfortable with rejecting this aspect of BAS's
affirmance argument — as does this: the uniform blue sky act on
which the Massachusetts act is modeled applies regardless of
"whether the sale is public or private, primary or secondary."
12A Joseph C. Long et al., Blue Sky Law § 9:1 (2016); see generally
Marram, 809 N.E.2d at 1025 (looking to that treatise for guidance).
(3)
Summing Up
Because the state securities-fraud claim turns on fact
questions — the matter is not "so one-sided that one party must
prevail as a matter of law," see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986) — Tutor Perini is entitled to a jury's
decision on that claim.
(c)
Federal Securities-Fraud Claim
That takes us to Tutor Perini's federal-securities-fraud
claim — premised in part on allegations that BAS made material
misrepresentations or omissions concerning the risks of ARS
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investing,18 and in part on allegations that BAS knowingly
recommended unsuitable investments, unsuitable because ARS did not
fit Tutor Perini's investment needs. Sparring with BAS, Tutor
Perini contends that the judge stumbled in kicking each claim out
on summary judgment. Tutor Perini is only half right, we rightly
hold.
(1)
Omissions
To succeed on its omissions-based claim Tutor Perini
must prove the following elements: "(1) a material . . . omission;
(2) scienter, or a wrongful state of mind; (3) a connection with
the purchase or sale of a security; (4) reliance; (5) economic
loss; and (6) loss causation." See Okla. Firefighters Pension &
Ret. Sys. v. Smith & Wesson Holding Corp. (In re Smith & Wesson
Holding Corp. Sec. Litig.), 669 F.3d 68, 73 (1st Cir. 2012). After
ticking off the list of fought-over omissions,19 the judge homed
18
We will focus on — and limit our attention to — omissions
because, as we have already seen, Tutor Perini waived any
misrepresentation-based theory.
19 "Tutor Perini," the judge wrote, insists
that BAS concealed 1) the frequency of auction-support
bids, 2) its rising ARS inventory, 3) the maximum rates
of the [at-issue ARS] and the difference between those
rates and the [ARS's] clearing rates, 4) that [student
loan ARS] issuers obtained maximum-rate waivers, 5)
other ARS auction failures between August, 2007 and
February, 2008 and 6) its alleged mid-December, 2007
contingency plan to allow auctions to fail selectively.
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in on elements (1) and (4). On element (1), the judge concluded
that the complained-about omissions were either disclosed in BAS
documents or in publicly available material. See generally
Cellular S., Inc. v. J.P. Morgan Sec., Inc. (In re JP Morgan
Auction Rate Sec. (ARS) Mktg. Litig.), Nos. 10 MD 2157 (PGG), 10
Civ. 4552 (PGG), 2014 WL 4953554, at *17 (S.D.N.Y. Sept. 30, 2014)
(emphasizing "there can be no omission where the allegedly omitted
facts are disclosed" (quotations omitted)). On element (4), the
judge held that because BAS had "accurately" disclosed the risk of
auction failure, it had no duty to say anything more than it did.
And so the judge ruled that Tutor Perini could not invoke any
presumption of reliance — because "[i]t is hard to conceive of
'relying' on omitted information," which is why the Supreme Court
"devised" a rebuttable "'presumption' of reliance," see Eckstein
v. Balcor Film Inv'rs, 58 F.3d 1162, 1171 (7th Cir. 1995), a
presumption that applies "if there is an omission of a material
fact by one with a duty to disclose," see Stoneridge Inv. Partners,
LLC v. Sci.–Atlanta, Inc., 552 U.S. 148, 159 (2008) (emphasis
added).
The parties battle hard over elements (1) and (4), with
Tutor Perini rejecting and BAS defending the judge's analysis.
Following their lead, we train our sights exclusively on those
elements. And we again side with Tutor Perini.
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Regarding BAS's principal argument — that it accurately
disclosed the info Tutor Perini says was omitted, and thus had
zero duty to say anything else — we find the contention no more
persuasive now than it was a few pages ago: simply flash back to
our earlier discussion of how evidence in the summary-judgment
record suggests, one, that the prospectuses, Excel spreadsheets
and files, and news articles that BAS talks about were out of date,
inaccurate, or not particularly helpful in understanding the then-
current state of the ARS market; and, two, that the case fits the
Grand-Canyon scenario. So the rebuttable-reliance presumption
applies. See id. Reliance is usually a jury issue, unless the
summary-judgment evidence "tips the scale only in one direction."
Kennedy v. Josephthal & Co., 814 F.2d 798, 804 (1st Cir. 1987)
(emphasis added).20 And the usual rule, not the exception, applies
here.21
20See, e.g., In re Eugenia VI Venture Holdings, Ltd. Litig.,
649 F. Supp. 2d 105, 119 (S.D.N.Y. 2008) (holding that "[t]he
question of whether a party's reliance was reasonable is always
nettlesome because it is so fact-intensive, and ordinarily a
question of fact to be determined at trial" (quotations and
citations omitted)), aff'd sub nom. Eugenia VI Venture Holdings,
Ltd. v. Glaser, 370 F. App'x 197 (2d Cir. 2010).
21 Check out Josephthal & Co. for a nonexhaustive list of
factors helpful in making a reliance determination — factors that
include "[t]he sophistication and expertise of the plaintiff in
financial and securities matters" and "the existence of long
standing business or personal relationships." 814 F.2d at 804
(quoting Zobrist v. Coal-X Inc., 708 F.2d 1511, 1516 (10th Cir.
1983)).
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Enough said on that.
(2)
Unsuitability
Broadly speaking, an unsuitability claim requires that
a plaintiff "show that the defendant is responsible for some
misrepresentation or material omission," see Lefkowitz v. Smith
Barney, Harris Upham & Co., 804 F.2d 154, 155 (1st Cir. 1986) (per
curiam), and that "the quality of" the securities "bought was
inappropriate to [its] investment objectives," see Tiernan v.
Blyth, Eastman, Dillon & Co., 719 F.2d 1, 5 (1st Cir. 1983)
(emphasis omitted). In rejecting Tutor Perini's unsuitability
claim, the district judge reached three conclusions. One, the
judge said that the BAS-provided prospectuses — mentioning (as
they do) how ARS may be unsuitable "if you require a regular or
predictable schedule of payments" — wrecked Tutor Perini's
unsuitability claim. Two, the judge — taking a belt-and-suspenders
approach — added that because he had "already concluded, as a
matter of law, that BAS did not make material misrepresentations
or breach a duty to disclose material facts," Tutor Perini's
unsuitability claim had no oomph. And three, citing and quoting
a Seventh Circuit case — Associated Randall Bank v. Griffin, Kubik,
Stephens & Thompson, Inc., 3 F.3d 208, 212 (7th Cir. 1993) — the
judge stressed that Tutor Perini's "suitability claim may be barred
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because [it] held a non-discretionary brokerage account whereby it
directed all the investments made."22
Tutor Perini says that this aspect of the judge's
summary-judgment ruling is wrong from beginning to end. BAS begs
to differ. For our part, we see an obstacle that Tutor Perini
cannot surmount.
Even granting (without deciding) that the judge missed
the boat with conclusions one and two, we see that Tutor Perini
must still deal with conclusion three — i.e., that investor-
directed securities transactions cannot support an unsuitability
claim, a conclusion BAS fights tooth and nail to defend in its
appellee's brief. But the difficulty for Tutor Perini is as BAS
argues: Tutor Perini "cites no authority" to support its view
(contrary to the judge's and BAS's) that nondiscretionary account
holders can bring unsuitability claims. Tutor Perini's reply brief
never challenges BAS's "cites no authority" point, incidentally.
22 Discussing Wisconsin law, Associated Randall Bank observed
that
[f]ederal securities law also requires brokers and
dealers acting as agents to procure "suitable"
securities. But federal law requires this only when the
agents exercise discretion over the accounts. Customer-
directed transactions fall outside the "suitability"
requirement — especially if the agent provides the
customer with a prospectus or comparable information.
Id. (citing Brown v. E.F. Hutton Grp., Inc., 991 F.2d 1020 (2d
Cir. 1993)).
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Nor do Tutor Perini's appellate papers offer any convincing
explanation of what the law should be, assuming it found no on-
point authority. What we have from Tutor Perini, then, "is hardly
a serious treatment of a complex issue," see Tayag v. Lahey Clinic
Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011) — "certainly not
when" its "'brief presents a passel'" of other protests, see
Rodríguez, 659 F.3d at 176 (quoting Dunkel, 927 F.2d at 956). It
is not our job to do Tutor Perini's work for it. See United States
v. Sepúlveda-Hernández, 817 F.3d 30, 34 (1st Cir. 2016). The
bottom line is that Tutor Perini waived any objection to the
alternative ground — a.k.a., conclusion three — for upholding the
judge's no-unsuitability-claim edict. See, e.g., Medina–Rivera v.
MVM, Inc., 713 F.3d 132, 140–41 (1st Cir. 2013); Muñiz v. Rovira,
373 F.3d 1, 8 (1st Cir. 2004); Town of Norwood v. Fed. Energy
Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000).
(d)
State Misrepresentation Claims — Negligent and Intentional
Granting BAS summary judgment on Tutor Perini's claims
for negligent and intentional misrepresentation, the judge ruled
that Tutor Perini neither "respond[ed] to [BAS's] arguments
refuting the allegations of misrepresentation" nor "identif[ied]
any false statements made by BAS." As for the parties' dispute
about the judge's ruling, we need only say this much: Tutor Perini
correctly cites a case holding that a negligent-misrepresentation
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claim under Massachusetts law can be based on omissions. See First
Marblehead Corp. v. House, 473 F.3d 1, 9 (1st Cir. 2006).23 And
as we have been at pains to stress, the summary-judgment evidence
shows triable issues of fact exist over BAS's omissions — omissions
that the judge did not consider in reviewing Tutor Perini's
negligent-misrepresentation claim. So the entry of summary
judgment on that claim cannot stand.
But the same cannot be said about Tutor Perini's
intentional-misrepresentation claim. For though a heading in
Tutor Perini's opening brief suggests the judge erred in dismissing
the intentional-misrepresentation claim, its appellate papers
never explain how this is so. And thus Tutor Perini waived any
argument it might have on that claim. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (stressing that "[i]t is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work"); see also
23To get anywhere on a negligent-misrepresentation claim
under Bay State law, a plaintiff "must show" that the defendant
(1) in the course of [its] business, (2) supplie[d] false
information for the guidance of others (3) in their
business transactions, (4) causing and resulting in
pecuniary loss to those others (5) by their justifiable
reliance on the information, and (6) with failure to
exercise reasonable care or competence in obtaining or
communicating the information.
Id. (quoting Nota Constr. Corp. v. Keyes Assocs., 694 N.E.2d 401,
405 (Mass. App. Ct. 1998)).
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Rodríguez, 659 F.3d at 175 (emphasizing that "claims not made" and
claims "'confusingly constructed and lacking in coherence'" are
deemed waived too (quoting United States v. Eirby, 515 F.3d 31, 36
n.4 (1st Cir. 2008))).
One last issue, and we can call it quits.
(e)
State Unfair-Business-Practices Claim
A Massachusetts statute creates a cause of action —
commonly called a "Chapter 93A claim" — for any business entity
injured by "an unfair or deceptive act or practice" by another
business entity. See Mass. Gen. Laws ch. 93A, § 11. Because he
had tossed out Tutor Perini's securities-fraud claims, the judge
believed he had to toss out Tutor Perini's Chapter 93A claim too
— in other words, because he found BAS had made no material
omissions (and thus had not acted unfairly or deceptively), the
judge (at least implicitly) reasoned that Tutor Perini's Chapter
93A claim could not survive summary judgment either. The parties
bicker a bit about the judge's handling of this claim. But having
rejected the reasoning underpinning the judge's ruling here — we
see trialworthy issues on the securities-fraud-by-omission claims,
after all — his stated basis for the entry of summary judgment on
the Chapter 93A claim evaporates.
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FINAL WORDS
With that and at long last, we vacate the summary
judgment for BAS on the state securities-fraud claim (dealing with
material omissions), the federal securities-fraud claim (ditto),
the state negligent-misrepresentation claim (ditto), and the state
unfair-business-practices claim (ditto). We affirm in all other
respects. In so ruling, we intimate no view on the outcome of any
trial — we have construed the record as favorably to Tutor Perini
as we could, and we know that a trial might cast the facts in a
different light. To this we must add, though, that BAS did move
for summary judgment on alternative grounds — e.g., scienter, loss
causation — that the judge never ruled on. And of course the
parties and the judge are free to take up those yet unexplored
grounds on remand.
Affirmed in part, vacated in part, and remanded for
further proceedings consistent with this opinion, with no costs to
either side.
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