Samuel Giancarlo v. UBS Financial Services ( 2018 )

Case: 16-20663 Document: 00514361980 Page: 1 Date Filed: 02/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 26, 2018
No. 16-20663
Lyle W. Cayce
Clerk
SAMUEL GIANCARLO, Individually and on behalf of all others similarly
situated; CARLOS ALSINA, Medical Doctor,
Plaintiffs - Appellants
v.
UBS FINANCIAL SERVICES, INCORPORATED; UBS SECURITIES,
L.L.C.; UBS AG; UBS O’CONNOR, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-4359
Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
This putative securities class action stems from the collapse of the
energy-and-commodities giant, Enron Corporation. Plaintiffs, Enron
investors, allege that Defendants, entities comprising the investment bank
UBS, were complicit in structuring financial vehicles to enable Enron to
mislead the public as to its fiscal performance. Plaintiffs claim that
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Defendants learned through their commercial relationships with Enron that
Enron’s prospects were poor. They further allege that Plaintiffs purchased
Enron debt using one of the defendants as a broker because of Defendants’
failure to disclose material information about Enron’s instability.
The district court dismissed Plaintiffs’ amended complaint for failure to
state a claim. On appeal, Plaintiffs argue that their amended complaint
sufficiently pled violations of federal securities law and, in the alternative, that
it was error for the district court to dismiss their claims on the basis of the first
amended complaint, filed in 2006, as the court should have granted Plaintiffs’
2011 motion for leave to file a proposed second amended complaint.
Plaintiffs have failed to establish that Defendants’ knowledge and
actions can be aggregated for purposes of assessing liability, which, due to the
nature of their factual allegations and legal arguments, is fatal to their claims.
As for their motion for leave to amend, Plaintiffs have not shown that they
were diligent, given their unexplained years-long delay, or that their proposed
amendments were important. For these reasons, as explained more fully
below, we AFFIRM the district court’s judgment of dismissal.
I
Defendants UBS Financial Services, Inc. (formerly known as UBS
PaineWebber, Inc., and referred to herein as PaineWebber), UBS Securities
LLC (formerly known as UBS Warburg, LLC, and referred to herein as
Warburg), and UBS AG are related but distinct corporate entities. 1 Together
they constitute “UBS,” one of the largest banks in the world. Defendants had
several important professional connections with Enron, once the world’s
seventh-largest corporation by revenue. According to Plaintiffs’ complaint, by
1 PaineWebber and Warburg are, or were at the relevant times, subsidiaries of UBS
AG.
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2000, Enron had begun “to seriously manipulate [its] financials” so as to make
the company appear more robust than it was. As relevant here, Enron and the
UBS entities engaged in a series of transactions Plaintiffs characterize as part
of Enron’s “financial chicanery.” The complaint discusses multiple “off-
balance[-]sheet” transactions between Defendants and Enron and alleges that
each of these transactions was, in reality, a loan from the Defendants to Enron
that was structured in a manner that permitted Enron to avoid logging the
transaction as a liability.
In August 2001, Enron’s Chief Executive Officer announced his
retirement, which was followed by a precipitous drop in Enron’s share price.
Plaintiffs allege that Defendants immediately began to unwind their financial
entanglements with Enron and to sell off their own Enron investments. By
November 2001, Enron was making a series of financial disclosures and
restatements, had placed its Chief Financial Officer (CFO) on a leave of
absence, and had announced an internal investigation. Enron filed for
bankruptcy in December 2001.
Plaintiffs are former PaineWebber clients who bought Enron bonds or
other debt instruments using PaineWebber as their broker. Plaintiffs’ basic
theory of liability is that Defendants knew of Enron’s financial manipulations
and impending demise and owed Plaintiffs a duty to disclose such knowledge.
In 2002, a multidistrict litigation (MDL) was established for the purpose of
coordinating all cases “concerning allegedly negligent and/or fraudulent
conduct relating to the financial collapse of Enron.” The instant case was filed
in 2003 and was transferred to the MDL to coordinate pretrial proceedings in
early 2004. After the conclusion of fact discovery in 2006, Plaintiffs elected to
proceed independently from the class certified in “Newby,” a case involving
claims by purchasers of Enron stock against banks that allegedly facilitated
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Enron’s misrepresentation of its financial condition. See Regents of the Univ.
of Cal. v. Credit Suisse First Bos., 482 F.3d 372, 377 (5th Cir. 2007).
Plaintiffs filed their first amended complaint in August 2006. Plaintiffs
alleged, in pertinent part, that Defendants violated § 10(b) of the Securities
Exchange Act, 15 U.S.C. § 78j(b), and Securities and Exchange Commission
Rule 10b-5, 17 C.F.R. § 240.10b-5, by failing to disclose information tending to
show that Enron’s financial state was precarious. Defendants filed a motion
to dismiss in September 2006, arguing, inter alia, that although Warburg and
PaineWebber were distinct legal entities, “[P]laintiffs [made] essentially no
attempt to plead, with the requisite specificity, who at what defendant had
what knowledge or wrongful intent.” Plaintiffs filed a response, incorporating
a boilerplate motion for leave to amend in the event the trial court found the
complaint deficient. Briefing was completed in January 2007.
In March 2007, this court decertified the class in Newby. See Regents,
482 F.3d at 394. The following day, the district court stayed proceedings in
Newby and most other coordinated and consolidated cases in the Enron MDL.
In April 2007, Plaintiffs requested a determination that the stay order did not
apply to their case. In June 2007, the trial court confirmed that the stay order
did apply to Plaintiffs’ case and that it was in effect pending potential
certiorari in Newby and the Supreme Court’s then-pending decision in
Stoneridge Investment Partners, L.L.C. v. Scientific Atlanta, Inc., 552 U.S. 148(2008), which addressed aiding and abetting liability under § 10(b).
In January 2008, the Supreme Court decided Stoneridge and, separately,
denied certiorari in Newby. See Regents of the Univ. of Cal. v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 552 U.S. 1170 (2008); Stoneridge, 552 U.S. 148. 2
2The district court granted summary judgment in Newby in early March 2009. See
Newby v. Enron Corp. (In re Enron Corp. Secs.), 610 F. Supp. 2d 600 (S.D. Tex. 2009).
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Two years later, Plaintiffs forwarded a copy of their proposed second amended
complaint to Defendants. In July 2010, Plaintiffs filed a motion to lift the stay
in their case. Over a year later, the court lifted the stay, and one week after
that, Plaintiffs filed a motion for leave to file their second amended complaint.
In March 2012, the district court denied leave to amend “in light of the long
history of deadlines and extensions in the Newby action.”
Over four years later, in August 2016, the district court granted
Defendants’ motion to dismiss. The court found that Plaintiffs failed to plead
facts demonstrating that Defendants’ separate corporate status should be
disregarded, and thus Plaintiffs had failed to adequately plead their “single,
fully integrated entity theory” of liability. The court held that Plaintiffs’
allegations were insufficient to support a duty to disclose on the part of UBS
AG or Warburg, finding that the amended complaint contained no factual
allegations showing a direct relationship between Plaintiffs and Warburg or
UBS AG that would give rise to a duty of disclosure. The court further held
that, although PaineWebber owed some duties to Plaintiffs as retail brokerage
clients, PaineWebber had not breached its limited duties. The court also held
that Plaintiffs failed to sufficiently allege PaineWebber’s scienter inasmuch as
they failed “to identify specific brokers and allege facts that demonstrate each
had an intent to deceive, manipulate or defraud or acted with severe
recklessness.” Finally, the court held that Plaintiffs failed to establish that
PaineWebber’s alleged brokerage practices caused their losses, reasoning that
PaineWebber’s actions in no way related to Enron’s fraud, which was the actual
cause of Plaintiffs’ economic damages. 3
3The court also dismissed Plaintiffs’ claims under 15 U.S.C. § 78t-1(a), a provision
concerned with insider trading. Plaintiffs do not make any arguments related to this holding
on appeal and therefore have abandoned any such arguments. See, e.g., United States v.
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Plaintiffs filed a motion for reconsideration, arguing that the court erred
in denying leave to amend their complaint and in finding that Plaintiffs failed
to adequately plead their § 10(b) claims. The district court denied
reconsideration. Plaintiffs filed a notice of appeal designating specifically, and
only, the district court’s order granting Defendants’ motion to dismiss.
II
We review the sufficiency of a complaint de novo. Ind. Elec. Workers’
Pension Tr. Fund Ibew v. Shaw Grp., Inc., 537 F.3d 527, 533 (5th Cir. 2008).
“The plaintiff’s well-pleaded facts are to be accepted as true and viewed in the
light most favorable to her.” Daugherty v. Convergent Outsourcing, Inc., 836
F.3d 507, 510 (5th Cir. 2016). “[C]onclusory allegations, unwarranted
deductions[, and] legal conclusions” are not “well-pleaded facts” for purposes of
evaluating a complaint. See Southland Sec. Corp. v. INSpire Ins. Sols. Inc.,
365 F.3d 353, 361 (5th Cir. 2004). When deciding a motion to dismiss a claim
for securities fraud, a court may consider the contents of certain public
documents filed with the Securities and Exchange Commission (SEC),
Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996), and
“documents that a defendant attaches to a motion to dismiss . . . if they are
referred to in the plaintiff’s complaint and are central to her claim,” Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000) (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993)).
Where fraud is alleged, Federal Rule of Civil Procedure 9(b) “creates a
heightened pleading requirement that ‘the circumstances constituting fraud or
mistake shall be stated with particularity.’” United States ex rel. Rafizadeh v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006) (“Inadequately briefed issues are deemed
abandoned.”).
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Cont’l Common, Inc., 553 F.3d 869, 872 (5th Cir. 2008) (quoting FED. R. CIV. P.
9(b)). “[A]lthough the requirement for particularity in pleading fraud does not
lend itself to refinement, . . . directly put, the who, what, when, and where
must be laid out.” Southland, 365 F.3d at 363 (quoting ABC Arbitrage
Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 349 (5th Cir. 2002)). A class-action
complaint alleging a violation of § 10(b) must allege fraud in accordance with
the heightened pleading standard of Rule 9(b). See id.
III
To state a securities-fraud claim under § 10(b) and Rule 10b-5, Plaintiffs
must allege that Defendants engaged in deceptive conduct in connection with
the purchase or sale of securities, that such conduct was committed with
scienter, that Plaintiffs acted in reliance on Defendants’ conduct, and that the
conduct caused Plaintiffs’ losses. See, e.g., Dura Pharm., Inc. v. Brando, 544
U.S. 336, 341–42 (2005). Plaintiffs’ allegations regarding deceptive conduct,
scienter, and reliance are interlinked inasmuch as Plaintiffs rest their case on
the presumption announced in Affiliated Ute Citizens of Utah v. United States,
406 U.S. 128 (1972). In Affiliated Ute, the Supreme Court held that, in the
case of an alleged material nondisclosure, reliance can be presumed from the
materiality of the omission. Id. at 153–154. To invoke the “Affiliated Ute
presumption,” Plaintiffs must allege a claim based on material omissions or
non-disclosure and must show that Defendants owed them a duty of disclosure.
See Regents, 482 F.3d at 384. In order to evaluate these issues, we must first
address Plaintiffs’ contention that Defendants formed a joint venture, which,
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they claim, permits us to aggregate Defendants’ knowledge and actions for
purposes of assessing liability.
A
Plaintiffs’ amended complaint generally refers to Defendants as if they
were a single entity. On appeal, Plaintiffs argue that we can attribute each
defendant’s actions and knowledge to a single entity called “UBS” because
Defendants formed a “de facto joint venture.” Plaintiffs claim that their
allegations are supported by Defendants’ SEC filings, which included
statements referring to Defendants as an “integrated investment services
firm,” referring to “UBS’s business groups,” and calling UBS “an integrated
group.”
Plaintiffs argue that, under Delaware law, the “generally recognized”
factors relevant to determining whether a joint venture exists are: “(1) a
community of interest in the performance of a common purpose, (2) joint
control or right of control, (3) a joint proprietary interest in the subject matter,
(4) a right to share in the profits, (5) a duty to share in the losses which may
be sustained.” Warren v. Goldinger Bros., Inc., 414 A.2d 507, 509 (Del. 1980)
(quoting Kilgore Seed Co. v. Lewin, 141 So. 2d 809, 810–11 (Fla. App. 1962)). 4
Plaintiffs fail to explain how the allegations identified in their brief on appeal
support finding a joint venture under this test. None of the allegations allude
to profit sharing, or loss sharing, see N.S.N. Int’l Indus., N.V. v. E.I. DuPont de
Nemours & Co., C.A., No. 12902, 1994 Del. Ch. LEXIS 46, at *20–21 (Del. Ch.
Mar. 31, 1994) (no joint venture where agreement between parties did not
contemplate loss sharing), and none establish that the Defendants have a joint
4 Plaintiffs’ brief suggests in a footnote that federal common law or Texas law is
relevant to our analysis of whether a joint venture exists, but otherwise exclusively relies on
Delaware law. Plaintiffs also contended at oral argument that Delaware law governs, so we
will assume this is the case.
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right to control the purported joint venture, 5 see In re Del. Bay Surgical Servs.,
No. 2121-S, 2002 Del. Ch. LEXIS 158, at *8 (Del. Ch. Jan. 28, 2002) (no joint
venture where parties did not have joint right of control). Plaintiffs’
allegations—principally references to Defendants’ vague corporate platitudes
about their integration as a firm—may logically support that Defendants
shared a community of interest in their business activities, but this alone is
insufficient to support joint venture liability. See, e.g., Warren, 414 A.2d at 509(five factors “must be” present); In re Coffee Assocs., No. 12950, 1993 Del. Ch.
LEXIS 263, at *15 (Del. Ch. Dec. 3, 1993) (“A community of economic
interest . . . . is not sufficient to create a joint venture.”). Thus, Plaintiffs have
not established the existence of a joint venture, and they have not put forth
any other theory that permits us to aggregate the actions and knowledge of the
defendant entities for purposes of assessing liability.
B
Plaintiffs contend that Defendants were in possession of material, non-
public information and that Defendants owed Plaintiffs a duty to disclose this
information. Specifically, Plaintiffs allege that Defendants ought to have
disclosed “UBS’s knowledge that Enron’s public financial statements were
manipulated and materially misleading.” 6 However, Plaintiffs have not sued
5 We note that, at oral argument, Plaintiffs alluded to additional supportive
allegations in Defendants’ public SEC filings and Plaintiffs’ proposed second amended
complaint. Our present analysis is limited to the first amended complaint. Moreover, we
ordinarily do not consider points raised for the first time at oral argument. See Vargas v.
Lee, 317 F.3d 498, 503 n.6 (5th Cir. 2003). Federal Rule of Appellate Procedure 28(a)(8)
requires appellants to brief their arguments and to support their contentions with citations
to the record. Although Plaintiffs are correct that we can consider certain documents filed
with the SEC, it is Plaintiffs’ burden to point us to relevant portions of the relevant filings in
their briefing.
6 For reasons made clear below, we have no occasion to decide whether Plaintiffs’
allegations plausibly support that Defendants knowingly or recklessly participated in
Enron’s fraud. We assume, arguendo, that the transactions Plaintiffs detail in their amended
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any entity called “UBS,” or, as previously discussed, established that any such
legal entity exists. It is, therefore, not sufficiently particular to allege that
“UBS” knew material non-public information due to “UBS’s” interactions with
Enron. See Southland, 365 F.3d at 363 (heightened pleading requires plaintiff
to, at minimum, allege “who” engaged in deceptive conduct). Cf. Fin.
Acquisition Partners LP v. Blackwell, 440 F.3d 278, 289 (5th Cir. 2006)
(allegations not sufficiently particular where they failed to demonstrate which
specific defendants of a group of defendants had the duty to disclose
information). Moreover, even a searching review of the relevant documents
supports, at most, that Warburg and UBS AG had some insider knowledge of
Enron’s financial situation, as those are the defendants that participated in
the transactions identified by Plaintiffs. 7 Thus, Plaintiffs must show that
Warburg or UBS AG owed them a duty of disclosure.
Plaintiffs point to several supposed sources of Defendants’ duty of
disclosure. Plaintiffs first argue that, under applicable self-regulatory
organization rules, “UBS had an affirmative duty to disclose its knowledge
concerning Enron’s financial manipulations to its retail clients who were
placing orders with UBS to purchase Enron securities.” However, Plaintiffs do
not divulge in their brief what rules they are referring to, or how such rules
imposed a duty of disclosure on any of the Defendants. Plaintiffs’ amended
complaint were sufficient to impart material, non-public knowledge to the participating
defendants.
7 To the extent Plaintiffs sufficiently allege that any individual employee or officer at
one of the defendant corporations possessed material, non-public information regarding
Enron’s finances, we might be able to impute that knowledge to a particular defendant. But
Plaintiffs fail to indicate which individuals work for which defendant. We will not strain to
come up with a theory of each defendant’s knowledge when Plaintiffs have offered none in
their briefing. Cf. United States v. Caldwell, 302 F.3d 399, 421 n.19 (5th Cir. 2002) (“Because
Caldwell fails to provide any supporting analysis for this claim, we consider it abandoned as
inadequately briefed.”).
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complaint appears to only discuss the role of self-regulatory organization rules
in one paragraph, and the only rule specifically discussed is a National
Association of Securities Dealers (NASD) rule requiring that
[a]ll member communications with the public shall be based on
principles of fair dealing and good faith and should provide a sound
basis for evaluating the facts in regard to any particular security
or securities or type of security, industry discussed, or service
offered. No material fact or qualification may be omitted if the
omission, in the light of the context of the material presented,
would cause the communications to be misleading.
This rule does not appear to impose a duty of disclosure in the absence of a
“communication[].” The only defendant alleged to have “communicated” with
Plaintiffs is PaineWebber, and Plaintiffs have not sufficiently alleged that any
person at PaineWebber had knowledge concerning Enron’s financial
manipulations. Thus, even if we accepted Plaintiffs’ invitation to hold that
NASD rules can impose a duty of disclosure for purposes of § 10(b) liability, 8
Plaintiffs have not shown that any defendant violated such rules. 9
Next, Plaintiffs rely on Affiliated Ute for the proposition that Defendants’
“special relationship” with Plaintiffs gave rise to a fiduciary-like duty of
disclosure. Plaintiffs first allege that “UBS gained significant amounts of
material, non-public information concerning Enron, its finances, and its
practices via . . . numerous interactions and overlapping relationships” with
Enron. This purported “special relationship” is, in fact, just an argument that
insider knowledge itself gives rise to a duty of disclosure, an argument that the
8 We have previously declined “to address the existence of a private cause of action
under the [New York Stock Exchange] and NASD rules.” Jolley v. Welch, 904 F.2d 988, 993
(5th Cir. 1990).
9 Additionally, Plaintiffs repeatedly contend that their claims are not based on any
statements, so it is unclear how an NASD rule governing communications supports their
theory of liability.
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Supreme Court has rejected. See Chiarella v. United States, 445 U.S. 222, 230
(1980) (“[A] duty to disclose under § 10(b) does not arise from the mere
possession of nonpublic market information.”). And, to the extent Plaintiffs
rely on allegations as to Defendants’ active participation in Enron’s misleading
financial transactions, this court has already held that such behavior is not
sufficient to establish a duty of disclosure. See Regents, 482 F.3d at 384–85.
Next, Plaintiffs allege that a duty to disclose arose from the fact that
“UBS was entirely familiar with the prevailing market for Enron shares at all
material times”; “UBS was a market maker[ 10] for Enron and its related
businesses,” based on participation in financial transactions with Enron; “UBS
itself traded Enron securities in the world’s securities markets via UBS
accounts”; and “UBS took advantage of its access to and significant knowledge
of Enron’s secret financial reality, eliminated its own risk by selling its Enron
holdings in the months prior to Enron’s bankruptcy, and even created UBS
securities tied to Enron’s default as part of that process.”
The only authority Plaintiffs cite in support of this “special relationship”
is Affiliated Ute. In Affiliated Ute, plaintiffs, owners of restricted stock, alleged
that two bank officers bought their stock without disclosing that they had
created a secondary market in which the stock would be resold at a significant
profit. See 406 U.S. at 133–39, 144–47. The bank, which was the exclusive
transfer agent for the stock, had agreed to act on behalf of the individual
stockholders. Id. at 145, 152. The Court held that the bank officers had
committed securities fraud because they had “devised a plan and induced the
[sellers] to dispose of their shares without disclosing to them material facts
“A market maker is a broker-dealer firm that assumes the risk of holding a certain
10
number of shares of a particular security in order to facilitate the trading of that security.”
Market maker, INVESTOPEDIA, http://www.investopedia.com/terms/m/marketmaker.asp.
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that reasonably could have been expected to influence their decisions to sell,”
namely that “the defendants were in a position to gain financially from their
sales and that their shares were selling for a higher price in th[e] market” that
the defendants had created. Id.Plaintiffs’ relationship to Defendants is not analogous to that of the
parties in Affiliated Ute. In contrast to Affiliated Ute, there were “other market
makers and underwriters” trading in Enron securities and Plaintiffs were not
required to deal with any of the Defendants. More importantly, Plaintiffs have
not successfully alleged that the defendants who engaged in market-making
activities (UBS AG or Warburg) sold them securities. Documents attached to
the pleadings discuss the role of “UBS Warburg AG” in several transactions
and indicate that that “UBS Warburg” was the “joint lead manager of Credit
Linked Notes for Enron.” Plaintiffs specify that their brokers were employees
of PaineWebber. Plaintiffs do not argue that PaineWebber had any special
knowledge of the market for Enron debt securities, and UBS AG’s and
Warburg’s dealings with Enron cannot support that PaineWebber had a duty
of disclosure.
Finally, Plaintiffs argue that their retail relationship with Defendants
gave rise to a duty of disclosure. But, again, even assuming that Plaintiffs’
retail relationship with PaineWebber gave rise to a duty of disclosure,
Plaintiffs have not demonstrated that PaineWebber had any material, non-
public knowledge to disclose. Thus, Plaintiffs have failed to establish that any
one defendant had material non-public knowledge and a duty to disclose this
knowledge to Plaintiffs. Accordingly, the district court properly dismissed
Plaintiffs’ amended complaint for failure to state a claim.
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IV
Plaintiffs argue that, even if their first amended complaint was properly
dismissed for failure to state a claim, the district court ought not to have
dismissed the action without granting them leave to file a second amended
complaint. Plaintiffs sought leave to amend their complaint long after the time
to amend had expired and Defendants’ motion to dismiss was fully briefed. The
district court denied leave to amend “in light of the long history of deadlines
and extensions in the Newby action.”
As a preliminary matter, Defendants argue that Plaintiffs have not
properly appealed the denial of leave to amend because their notice of appeal
only, and specifically, designated the district court’s order granting the motion
to dismiss. However, Defendant’s construction of Federal Rule of Appellate
Procedure 3—which governs the required content of a notice of appeal—is
formalistic in a manner that we have already rejected.
In New York Life Insurance Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir.
1998), an appellee argued that, because the notice of appeal only designated
the order dismissing the action, we lacked jurisdiction over the appellant’s
challenge to an earlier district court order denying her motion to remand. We
rejected the appellee’s argument because (1) the order designated in the notice
of appeal was the final judgment, and therefore the notice preserved all prior
orders intertwined with that judgment; (2) the issues in the final order were
“inextricably intertwined” with the prior order inasmuch as the final judgment
was predicated on the district court’s exercise of removal jurisdiction; and (3)
any doubts as to the appellant’s intent to preserve her arguments on appeal
were resolved by the opening brief, which addressed such arguments. Id. We
therefore concluded that “the notice of appeal coupled with the opening briefs
gave [the appellee] adequate notice” of the matters at issue in the appeal and
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that the appellee “fail[ed] to demonstrate that it was prejudiced by any
deficiency in the notice of appeal.” 816 F.3d at 328.
Defendants argue that the order designated here was not a “final
judgment” because the notice of appeal designates only the August 2, 2016
dismissal order and not the docket entry administratively terminating the
case. But that docket entry reflects that the case was “[t]erminated per” the
“opinion and order of dismissal” specifically designated by the Plaintiffs.
Intent to appeal the conclusive order can be inferred from Plaintiffs’ notice of
appeal and the opening brief, see Deshotel, 142 F.3d at 884, and review of that
order “clearly encompasses the prior orders leading up to it,” see Xerox Corp. v.
Genmoora Corp., 888 F.2d 345, 349 (5th Cir. 1989). Defendants have fully
addressed the motion for leave to amend on the merits and fail to argue that
they were prejudiced by Plaintiffs’ inartful notice of appeal. Consequently, we
are satisfied that we have jurisdiction over this issue, the merits of which we
now turn to address.
“While Federal Rule of Civil Procedure 15(a) provides that leave to
amend shall be ‘freely’ given, [Federal] Rule [of Civil Procedure] 16(b)(4) limits
modifications to a scheduling order to situations where good cause is shown.”
United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 328 (5th
Cir. 2016). Four factors are relevant to whether good cause has been shown
for purposes of Rule 16(b)(4): “(1) the explanation for the failure to timely move
for leave to amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability of a continuance
to cure such prejudice.” Id. (cleaned up). The district court has broad
discretion in considering whether to grant an untimely motion for leave to
amend. See Fahim v. Marriott Hotel Servs., 551 F.3d 344, 348 (5th Cir. 2008).
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Plaintiffs argue that the district court abused its discretion by denying
leave to amend. They claim that they failed to timely amend their complaint
(1) because they needed to add information from the deposition of Enron CFO
Andrew Fastow; (2) because of their “desire to include allegations based upon
UBS’s expert witness testimony”; and (3) because Defendants’ disavowal of the
UBS joint venture was unforeseeable. Plaintiffs argue that their amendments
are “[c]learly” important, in light of the district court’s dismissal. Plaintiffs
contend that there is no evidence that the amendment would result in
prejudice to Defendants. Plaintiffs further argue that they themselves caused
no delay, so the district court’s explanation for denying leave—delay in the
Newby case—was unjustified.
Plaintiffs’ explanations for their failure to timely amend their complaint
do not explain their long delay in seeking leave to amend, nor establish their
diligence. See Fahim, 551 F.3d at 348 (under Rule 16(b), a party must show
that “the deadlines cannot reasonably be met despite the diligence of the party
needing the extension”). First, Fastow was deposed in October 2006. This case
was not stayed until March 2007, and Plaintiffs did not concede that their
action was stayed until June 2007. Plaintiffs had at least four months before
their action was stayed to request leave to amend to incorporate the Fastow
deposition. Nonetheless, Plaintiffs did not send Defendants a copy of their
proposed amended complaint until January 2010. By that time, they had
known of Fastow’s deposition for over four years, and the basis for the stay had
been fully resolved for at least nine months. See Newby, 610 F. Supp. 2d at
655. Consequently, Fastow’s October 2006 deposition does not explain
Plaintiffs’ delay.
Second, as to the “UBS expert testimony” Plaintiffs added to their
proposed second amended complaint, three of the cited depositions were taken
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No. 16-20663
months before Plaintiffs’ first amended complaint was filed. The one that was
not occurred in November 2006. Plainly, then, these depositions do not explain
Plaintiffs’ delay.
Third, Plaintiffs suggest that they were caught off-guard by Defendants’
disavowal of the “UBS joint venture.” But Plaintiffs should have known of
Defendants’ position by September 2006, at which time Defendants filed their
motion to dismiss highlighting that Warburg and PaineWebber were separate
legal entities and arguing that Plaintiffs had not shown scienter because
Plaintiffs made “essentially no attempt to plead, with the requisite specificity,
who at what defendant had what knowledge or wrongful intent.” Plaintiffs
failed to take any concrete steps to amend their complaint with this
information until 2010. Therefore, Plaintiffs have failed to demonstrate that
they were diligent in seeking leave to amend.
In any event, Plaintiffs have failed to demonstrate the need for the
amendments. In a single line, Plaintiffs contend that their amendments were
important in light of “the dismissal and the extent to which it is the correct
legal decision.” But Plaintiffs do not explain what additional allegations would
cure which deficiencies, and the correlation is not self-evident. Elsewhere in
their briefing, Plaintiffs imply that Fastow testified that he told Defendants
that Enron was in poor financial shape and hid it through intentionally
misleading manipulation. Even if this were the case, Plaintiffs do not argue
that Fastow had any dealings with PaineWebber specifically and therefore
have not shown how these additional allegations would resolve the earlier-
discussed inability to attribute insider knowledge to PaineWebber. Plaintiffs
also contend, generally, that their additional allegations would “bolster the
joint venture allegation,” but fail to explain how they would do so. Similarly,
they argue that allegations based on “UBS’s expert witness testimony [would]
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No. 16-20663
support[] the[ir] §10(b) claim,” without any explanation as to what the
additional testimony consists of, or how it supports their claims. Thus, the few
specific arguments Plaintiffs do raise fail to show that the proposed
amendments were important, and Plaintiffs have otherwise failed to
sufficiently brief this issue. See FED. R. APP. P. 28(a)(8) (briefing “must
contain . . . appellant’s contentions and the reasons for them, with citations to”
supporting authority). Inadequately briefed arguments are generally deemed
to have been forfeited, see, e.g., SEC v. Life Partners Holdings, Inc., 854 F.3d
765, 784 (5th Cir. 2017), and we see no reason to deviate from the usual rule
here.
Plaintiffs have failed to demonstrate that they were diligent in pursuing
their amendments or that these amendments were important. Accordingly,
even assuming that the other two factors favor the Plaintiffs, the district court
did not abuse its discretion by denying leave to amend. See Fahim, 551 F.3d
at 348 (no abuse of discretion in denial of leave to amend where two factors
“weighed heavily against” amendment and two factors weighed in favor).
***
For these reasons, we AFFIRM the district court’s denial of leave to
amend as well as its dismissal of Plaintiffs’ first amended complaint.
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