Lillie v. Off of Fincl Inst St of LA ( 2021 )

Case: 19-30705 Document: 00515862363 Page: 1 Date Filed: 05/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 14, 2021
No. 19-30705 Lyle W. Cayce
Clerk
Troy Lillie; Leah Farr; Kenneth Doughtery;
Charles White; Martha Jean Witmer; Et Al.,
Plaintiffs—Appellants,
versus
Office of Financial Institutions State of Louisiana;
SEI Investments Company; SEI Private Trust Company;
Continental Casualty Company;
Certain Underwriters at Lloyd’s of London;
Indian Harbor Insurance Company;
Nutmeg Insurance Company; Arch Insurance Company;
Allied World Assurance Company (U.S.), Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:13-CV-150
No. 3:19-CV-138
Before Smith, Graves, and Ho, Circuit Judges.
Jerry E. Smith, Circuit Judge:
This is one of many lawsuits resulting from the collapse of Robert
Stanford’s Ponzi scheme. The plaintiffs are among the unfortunate investors
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who purchased or renewed certificates of deposit (“CDs”) issued by Stan-
ford International Bank, Ltd. (“SIBL”). After their investments went up in
smoke, the plaintiffs sued, among others, SEI Investments Company and SEI
Private Trust Company (jointly, “SEI”), businesses that had a longstanding
relationship with SIBL. As relevant, the district court denied the plaintiffs a
continuance for further discovery, then awarded summary judgment to SEI,
concluding that it had not controlled the primary securities violations of Stan-
ford Trust Company (“STC”). 1 We affirm.
I.
STC served as the custodian for all IRA accounts holding CDs from
SIBL. Starting in 1998, SEI provided STC with investment-processing and
reporting services using its proprietary Trust 3000 software. That software
allows trust companies to view all their assets—including non-marketable
assets such as CDs—in one platform.
SEI offered its processing services through, among other means, a
business services provider (“BSP”) model, and STC was one of SEI’s clients
that used that model. In short, that meant that SEI assumed STC’s “back-
office processing function.” SEI’s contract with STC outlined what that
function would entail.
The contract contemplated that SEI would be an independent con-
tractor; it limited SEI’s involvement with the CDs. STC (but not SEI) priced
the CDs and other non-marketable securities, 2 and SEI did not perform due
diligence on how STC valued the CDs. Instead, STC provided SEI with all
the relevant information, including the CDs’ face value, interest rate, matur-
1
The court also granted summary judgment to SEI’s insurers: Allied World
Assurance Company (U.S.), Incorporated; Arch Insurance Company; Continental Casu-
alty Company; Indian Harbor Insurance Company; Nutmeg Insurance Company; and
Certain Underwriters at Lloyd’s of London (collectively, the “Insurer Defendants”).
2
By contrast, SEI was responsible for establishing the value of publicly traded
securities using pricing services from Interactive Data Services, Inc.
2
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ity date, and market value, and STC was “solely responsible” for that data’s
“accuracy and completeness.” SEI could “rely upon [i]nstructions” from
STC, and STC had a right to inspect SEI’s records, but not vice versa.
SEI also furnished STC with statement production and printing ser-
vices, including the creation of client statements and tax forms. To do so,
SEI sent data from Trust 3000 to a third-party printer. STC was still respon-
sible for reviewing and distributing the statements, and the statements made
plain that they were STC’s (not SEI’s). 3 STC had the printer mail the state-
ments directly to clients.
STC paid SEI a fixed fee, including $110 for each account that had
only CDs from SIBL. During the relevant period, SEI billed STC about
$808,000 for all services, $279,000 of which was for CD-only accounts.
After the Ponzi scheme had crashed and burned, the plaintiffs sued
SEI and several others in state court, alleging violations of Louisiana securi-
ties law. Specifically, the plaintiffs brought primary liability claims under
Louisiana Revised Statutes §§ 51:712(D) and 51:714(A) and a sec-
ondary control-person liability claim under § 51:714(B). The district court
certified a class including all persons who bought or renewed CDs from SIBL
in Louisiana between January 1, 2007, and February 13, 2009.
After certification, the plaintiffs amended their complaint to assert
direct-action claims against the Insurer Defendants, who promptly removed
the case under the Class Action Fairness Act. See 28 U.S.C. §§ 1332(d)(2),
1453(b). The Judicial Panel on Multidistrict Litigation (“JPML”) then sev-
ered the claims against the Louisiana Office of Financial Institutions and
transferred the rest of the case to the relevant multidistrict litigation
(“MDL”) in the Northern District of Texas.
3
The statements went so far as to explain that “SIBL is the provider of your cer-
tificate of deposit investment(s) and, therefore, its statement is to be relied upon for the
actual value and activity of your investment.”
3
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At the plaintiffs’ request, the court ordered the parties to hold a Fed-
eral Rule of Civil Procedure 26(f) conference. The parties did so and filed
their report in June 2015. The court eventually dismissed or granted partial
judgment for the defendants on the §§ 714(A) and 714(D) claims. At that
point, only the control-person claim remained. The district court recertified
the class.
The case pended in the Northern District of Texas for more than five
years, during which time the discovery process largely stalled. The parties
dispute the cause of the breakdown and the adequacy of discovery, but the
plaintiffs did not seek judicial assistance until May 2018—some three years
after filing the Rule 26(f) report—when they asked for a status conference.
At that conference, the court suggested that the plaintiffs either take a depo-
sition under Federal Rule of Civil Procedure 30(b)(6) or move to compel
answers to their interrogatories. The court did not enter a scheduling order,
and it invited SEI to move for summary judgment at any time, subject to the
plaintiffs’ right to seek a continuance under Federal Rule of Civil Procedure
56(d).
SEI so moved in September 2018. Among other things, the plaintiffs
responded by asking for a Rule 56(d) continuance. They supported that re-
quest with a declaration from one of their lawyers, who asserted that the
plaintiffs lacked the discovery they needed to oppose summary judgment.
Before ruling, the JPML remanded the case to the Middle District of
Louisiana. That court granted SEI summary judgment, finding that SEI had
not controlled STC’s primary securities violations. Conversely, the court
denied a continuance, ruling that the plaintiffs had not established Rule
56(d)’s requirements or pursued discovery with diligence. Soon thereafter,
the court granted summary judgment to the Insurer Defendants on the
direct-action claims. The plaintiffs unsuccessfully moved for reconsidera-
tion and ask us to reverse.
4
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I.
The plaintiffs challenge the summary judgment, which we address
de novo, construing all facts and reasonable inferences in favor of the non-
moving party. Ryder v. Union Pac. R.R. Co., 945 F.3d 194, 199 (5th Cir. 2019).
If proof is absent, we cannot “assume that the nonmoving party could or
would prove the necessary facts” to defeat summary judgment. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)
(emphasis omitted).
A.
Under Louisiana law, a party can be secondarily liable for the primary
securities violation of another:
Every person who directly or indirectly controls a person liable
under Subsection A of this Section, every general partner,
executive officer, or director of such person liable under Sub-
section A of this Section, every person occupying a similar
status or performing similar functions, and every dealer or
salesman who participates in any material way in the sale is lia-
ble jointly and severally with and to the same extent as the per-
son liable under Subsection A of this Section . . . .
LA. REV. STAT. § 51:714(B) (emphasis added). Secondary liability under
Section 714(B) thus requires (1) a primary securities-law violator and (2) a
second actor that controlled the primary violator. Id.
But what makes for “control”? The statute defines it as “the posses-
sion, direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, by contract, or otherwise.” Id. § 51:702(4). “The language
of [§ 714(B)] indicates that a person who exercises control refers to a general
partner, executive, officer, director, or a person occupying a similar status or
performing a similar function.” Solow v. Heard McElroy & Vestal, L.L.P.,
7 So. 3d 1269, 1281 (La. App. 2d Cir.), writ denied, 17 So. 3d 961 (La. 2009).
“Because Louisiana precedent interpreting Section 51:714(B) is thin,
5
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we look to federal law for instruction.” Ahders v. SEI Priv. Tr. Co., 982 F.3d
312, 315 (5th Cir. 2020) (cleaned up). 4 At a minimum, the plaintiffs must
“show that the defendant had an ability to control the specific transaction or
activity upon which the primary violation is based.” Heck v. Triche, 775 F.3d
265, 283 (5th Cir. 2014) (cleaned up). But there is no requirement that the
defendant participate in the fraudulent transaction itself. 5
B.
The plaintiffs say that summary judgment was improper, because the
district court applied the wrong legal standard and ignored factual disputes
as to SEI’s asserted control. 6 Neither theory succeeds.
1.
The plaintiffs’ wrong-legal-standard quibble has three steps. First,
4
See also State v. Powdrill, 684 So. 2d 350, 353 (La. 1996) (“Our courts . . . look to
the federal law and jurisprudence interpreting the securities law for guidance in interpret-
ing the Louisiana provisions.”).
5
Heck, 775 F.3d at 283; see also Trans Pac. Interactive, Inc. v. U.S. Telemetry Corp.,
2017 WL 1376592, at *5 (La. App. 1st Cir. May 1, 2017) (“Control person liability does not
require participation in the fraudulent transaction.”), writ denied, 227 So. 3d 294 (La. 2017).
We have not decided whether, to be liable, the alleged control person must have “actually
exercised his power over the controlled person.” Heck, 775 F.3d at 283 n.18 (emphasis
added); see also Abbott v. Equity Grp., Inc., 2 F.3d 613, 620 (5th Cir. 1993) (declining to
answer that question).
6
The plaintiffs insist that the references to “SEI” in their briefing include the
Insurer Defendants. But the plaintiffs fail to discuss the direct-action claim against those
defendants, nor do they cite the relevant statute or any case. Their claim against those
defendants is therefore abandoned. See N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna
Healthcare, 952 F.3d 708, 711 n.3 (5th Cir. 2020), cert. denied, 141 S. Ct. 1053 (2021).
But, even if we consider it, it fails. The Louisiana statute, see LA. REV. STAT.
§ 22:1269, “does not create an independent cause of action against the insurer; it merely
grants a procedural right of action against an insurer where the plaintiff has a substantive
cause of action against the insured,” SEC v. Stanford Int’l Bank, Ltd., 927 F.3d 830, 850
(5th Cir. 2019) (cleaned up), cert. denied, 140 S. Ct. 2567 (2020). Because the plaintiffs’
claims against SEI are dead in the water, their claim against the Insurer Defendants perishes
too.
6
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the district court relied on Friedman v. JP Morgan Chase & Co.,
No. 15-cv-5899, 2016 WL 2903273 (S.D.N.Y. May 18, 2016), aff’d, 689
F. App’x 39 (2d Cir. 2017) (per curiam). Second, Friedman mentions the
“culpable participation” test “no [fewer] than ten times.” Third, it neces-
sarily follows that the court improperly applied a “culpable participation”
requirement—one that our caselaw disclaims. See Heck, 775 F.3d at 286.
The conclusion does not follow, and the record proves it. The district
court correctly identified that the “[p]laintiffs need not prove that SEI parti-
cipated in the fraudulent transaction.” The court relied on Friedman only in
reasoning that a showing of “but-for causation”—namely that SEI might
have been able to prevent STC’s violations—is not enough to establish con-
trol. Such a rationale (which Louisiana caselaw supports 7) is distinct from
Friedman’s independent holding that the plaintiffs there had not alleged
culpability. 8 One may cite a case without endorsing everything for which it
stands. The district court understood the law.
2.
The plaintiffs also inform us that it is factually disputed whether SEI
had the requisite control. Not so.
SEI—the movant—has offered competent evidence that it lacked the
power to control STC’s primary securities violations. 9 SEI points first to the
contractual terms, under which STC (not SEI) was responsible for pricing
the CDs, providing SEI with complete and accurate data, reviewing monthly
7
See Solow, 7 So. 3d at 1281 (holding that an auditor’s “power to halt the sale” of
securities to the plaintiffs was not enough to establish control under Section 714(B)).
8
See Friedman, 689 F. App’x at 39–40 (noting that the district court dismissed the
plaintiffs’ control-person claims on three independent grounds).
9
See Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (per
curiam) (“Once a movant who does not have the burden of proof at trial makes a properly
supported motion for summary judgment, the burden shifts to the nonmovant to show that
the motion should not be granted.” (cleaned up)).
7
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statements, and distributing those statements to investors. Moreover, STC
could instruct SEI to do certain things, but that authority was not reciprocal.
SEI also offers testimony from Al DelPizzo, SEI’s then-Vice President
of Operations, from the class-certification hearing. He stated that, consis-
tently with the contract, STC gave SEI all the valuation information that it
needed for the CDs. Moreover, SEI never had custody of the CDs, and it did
not price CDs for any bank (let alone STC), sell or market them, or audit the
data that it prepared for STC’s accounts. SEI also lacked an ownership stake
in STC and had no representative on its board: SEI could not direct STC’s
management or policies.
Because SEI, the movant, has informed “the court of the basis for its
motion” and identified “portions of the record which highlight the absence
of genuine factual issues” about whether SEI controlled STC’s primary vio-
lation, the burden rests with the plaintiffs to “direct the court’s attention to
evidence . . . sufficient to establish that there is a genuine issue of material
fact for trial.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The
plaintiffs come up empty. They lead off with a sweeping assertion that SEI
was the “defacto [sic] trust company” for STC, considering the “compre-
hensive scope of [] services” that SEI provided, “the cradle to grave relation-
ship” between STC and SEI, and “the sophistication of SEI and the lack of
sophistication of STC.” In considering the thrust of that evidence, the plain-
tiffs assert, the court failed to draw inferences in their favor.
At bottom, the plaintiffs seem to think that SEI’s longstanding ties to
STC create a dispute over whether SEI had control. But the plaintiffs fail to
explain how those ties evidence anything more than that SEI had a business
relationship with STC. A party is not secondarily liable for a primary actor’s
securities violations just because it does business with that actor, no matter
the length of their relationship. 10 Instead, SEI must have “possess[ed],
10
See, e.g., Abbott, 2 F.3d at 620–21 (holding that control was not established
8
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direct[ly] or indirect[ly], . . . the power to direct or cause the direction of the
management and policies of” STC. § 51:702(4). That SEI and STC have a
contract is not enough; the contract must grant SEI the requisite control.
This one does not. Indeed, in Firefighters’ Retirement System v. Citco Group
Ltd., No. 20-30654, 2021 WL 1234258, at *4, 2 (5th Cir. Mar. 31, 2021) (per
curiam) (unpublished), we determined that the plaintiff had failed to estab-
lish control-person liability, even where the defendant had had a long and
substantial relationship with the primary violator, serving as its main source
of credit as well as providing business operations services. The evidence
suggests that SEI and STC’s relationship was not as close as the one between
the defendant and primary violator in Firefighters’. The plaintiffs’ contention
here fails.
Nor does the plaintiffs’ reliance on the nature of SEI’s BSP relation-
ship with STC advance the ball. The plaintiffs lean on the following general
description of the BSP model, lifted from SEI’s regulatory filings: 11
The BSP model . . . was designed for Private Banks, and other
trust organizations that prefer to outsource their entire invest-
ment operations. With the BSP solution, we assume the entire
back-office processing function. The BSP model includes: in-
vestment processing; account access and reporting; audit,
despite plaintiffs’ evidence of defendant’s (1) involvement in issuing bonds for the primary
violator’s other transactions, (2) general knowledge of the status of the primary violator’s
debt offerings, and (3) influence over a particular bond transaction that did not form the
basis for secondary liability); Meek v. Howard, Weil, Labouisse, Friedrichs, Inc.,
No. 95-60680, 1996 WL 405436, at *3 (5th Cir. June 25, 1996) (per curiam) (“At best, the
evidence arguably shows that Appellees had influence over Smith’s commodities trading;
it did not show that Appellees had anything to do with Smith’s handling of the Meeks’
securities investments, or any power to control his handling of those investments.”).
11
The plaintiffs did not raise the BSP characterization until their motion for recon-
sideration, in which they complained that the relevant documents “were first produced by
SEI in the Spring of 2019.” But the plaintiffs forget that Forms 10-K are public documents
accessible on the website of the Securities and Exchange Commission. They also fail to see
that certain testimony and documents produced as early as 2010 revealed that STC was a
BSP client. To suggest that this evidence is “new” strains credulity.
9
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compliance and regulatory services; custody and safekeeping
of assets; income collections; securities settlement; and other
related trust activities.
But that paragraph outlines only a range of possible BSP services. Naturally,
the client contracts determine what services SEI will actually provide, and,
as explained above, the terms here devastate any theory that SEI had control,
even drawing inferences in the plaintiffs’ favor. 12
Any determination that SEI’s business services for STC constituted
control is precluded by Ahders. There, plaintiffs who opted out of the class
in the present case also sued SEI, asserting that SEI had control-person
liability for STC’s primary violations. See Ahders, 982 F.3d at 314. There, as
here, the plaintiffs contended that “SEI had direct or indirect control over
STC’s primary violations due to various aspects of SEI’s role as a service
provider for STC.” Id. at 316. Analyzing the same business services, we
observed that “a reasonable jury could not conclude that SEI is liable as a
control person merely because STC committed primary violations using
SEI’s services.” Id. We held that SEI’s production and sending of state-
ments containing the value of the CDs to investors was insufficient to show
control: “[C]ontrol over day-to-day operations is not facial evidence of con-
trol over a primary violation.” Id. at 316–17. 13 Instead, it was incumbent on
the plaintiffs here to show “control over the primary violations,” and they
12
See, e.g., Se. Wireless Network, Inc. v. U.S. Telemetry Corp., 2007 WL 1953148,
at *3–4 (La. App. 1st Cir. July 6, 2007), writ denied, 967 So. 2d 525 (La. 2007) (holding that
control was not established despite alleged control person’s contracts that gave it super-
visory authority over the issuer’s “budget, operations, marketing, public relations, acquisi-
tions, expenditures, stock issuances, and selection and hiring of key personnel”).
13
Furthermore, in Firefighters’, 2021 WL 1234258 at *3, the defendant not only
created statements and sent them to investors but also provided the underlying accounting
services and valuations for the statements, as well. We held that the fact that the defendant
provided accounting services for the primary violator “does not establish that it had the
‘power to direct or cause the direction of the management and policies of [the violator].’”
Id. (quoting § 51:702(4)).
10
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failed to do so. Id. at 317.
Next, the plaintiffs contend that, before evaluating control, the district
court should have considered whether SEI was aware of STC’s illegal activi-
ties. But the statute says the opposite. Section 714(B) carefully defines the
stage at which SEI’s knowledge becomes relevant, as it makes SEI’s lack
thereof an affirmative defense. See § 51:714(B). In other words, if SEI is
proven to be in control, then it may raise the defense that it neither knew nor
should have known of the violations. Id. To require the district court to con-
sider knowledge before control would stand the statute on its head. 14
Finally, the plaintiffs maintain that “control” can be shown where the
alleged “control person is in a position to prevent the violation of the primary
violator.” But even if “[t]he rationale behind control person liability is that
a control person is in a position to prevent the securities violation at issue,”
TIG Specialty Ins. Co. v. Pinkmonkey.com Inc., 375 F.3d 365, 372 (5th Cir.
2004), the ability to stop a violation is not the same as the power to control
it. 15 Furthermore, we rejected that same contention in Ahders, 982 F.3d
at 316, stating that “[t]he control-person provision requires more than the
power to stop a primary violation for an entity to be liable.” Instead, the
plaintiffs “must establish that SEI directly or indirectly had ‘the power to
direct . . . the management and policies’ of STC.” Id. (quoting § 51:702(4)).
Summary judgment for SEI was proper.
II.
The plaintiffs contend that the district court should have granted
14
See Trans Pac., 2017 WL 1376592, at *6 (describing control as the “threshold
requirement . . . under Section 714(B)”).
15
See Solow, 7 So. 3d at 1281 (rejecting a control-person theory predicated on an
allegation that the defendant “had the power to halt the sale”). We have praised Solow’s
reasoning as “surely a correct interpretation of the control person statute.” Heck, 775 F.3d
at 285.
11
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them a continuance under Rule 56(d) so that they could gather more discov-
ery before facing summary judgment. We review for abuse of discretion, see
Prospect Cap. Corp. v. Mut. of Omaha Bank, 819 F.3d 754, 757 (5th Cir. 2016),
and there is none.
A party who fails to pursue discovery with diligence is not entitled to
Rule 56(d) relief, 16 and, as the district court recognized, the plaintiffs ne-
glected to do so. This case has been pending for more than a decade, and for
north of seven years in federal court.
Yet the plaintiffs waited until May 2018—more than five years after
the case was removed and almost three years after the parties filed their Rule
26(f) report—to move for a status conference. After that, the plaintiffs
waited until June 2018 to serve 134 interrogatories, noticed a Rule 30(b)(6)
deposition three months later, and then failed to serve document requests
until two months after that.
The plaintiffs maintain that the district court showed “a complete
lack of understanding of the procedural gymnastics and complexity existing
in this case over the last ten years.” They aver that the district court got the
burdens backwards. And they repeatedly accuse SEI of “[s]tonewall[ing]”
their discovery efforts.
But even if SEI’s discovery tactics were wrongful, the Federal Rules
of Civil Procedure place the onus on the discovery-seeker to invoke the judi-
cial process. Rule 37 provides that a party may obtain a court order compel-
ling discovery that it has not been able to obtain through cooperation with the
other side. See Fed. R. Civ. P. 37(a). But the plaintiffs never took matters
into their own hands, even though the MDL district judge reminded them of
their right to file a motion to compel. Instead, the first time they “sought
16
See, e.g., Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 816 (5th Cir. 2017);
McKay v. Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014); Beattie v. Madison Cnty.
Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).
12
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judicial assistance in obtaining [discovery] was in response to [SEI’s] sum-
mary judgment motion.” Jacked Up, 854 F.3d at 816. Having dawdled for
years, the plaintiffs had no right to a judicial rescue. 17
AFFIRMED.
17
See Jacked Up, 854 F.3d at 816 (holding that the nonmovant was not diligent,
where it had not moved to compel the requested documents during discovery and had
waited until summary judgment to seek judicial intervention); Beattie, 254 F.3d at 606
(holding that a nonmovant was not diligent, when she had waited “several months” to
depose key witnesses); Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit,
28 F.3d 1388, 1397 (5th Cir. 1994) (holding that the district court did not err in denying a
Rule 56(d) continuance where the plaintiffs “undertook no discovery . . . for more than one
year” and only deposed witnesses “shortly before the summary judgment”); Spencer v.
FEI, Inc., 725 F. App’x 263, 269 (5th Cir. 2018) (per curiam) (holding that the plaintiff was
not diligent when he had “waited for over a year to serve his first deposition subpoenas”
and “filed his Rule 56(d) motion over a month after [the defendant] filed its motion for
summary judgment and less than a month before the discovery deadline”); Mitchell v.
Sikorsky Aircraft, 533 F. App’x 354, 358 (5th Cir. 2013) (per curiam) (holding that the plain-
tiff was not diligent where she waited until “three weeks before motions for summary judg-
ment were due” to coordinate depositions, despite having more than seven months to seek
discovery).
13