2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-16-2010

John Malack v. BDO Seidman

Precedential or Non-Precedential: Precedential

Docket No. 09-4475

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-4475

 

JOHN A. MALACK; 

MICHAEL R. ROSATI; 

VIRGIL MAGNON; 

S. S. RAJARAM, M.D.; 

HAYWARD PEDIATRICS, INC.; 

HENRY MUNSTER,

 Appellants

v.

BDO SEIDMAN, LLP

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-08-cv-00784

District Judge: The Honorable Thomas N. O’Neill, Jr.

 

Argued June 23, 2010
2

Before: SMITH, FISHER, and GREENBERG, Circuit

Judges

(Filed: August 16, 2010)

Todd S. Collins (argued)

Elizabeth W. Fox

Neil F. Mara

Berger & Montague

1622 Locust Street

Philadelphia, PA 19103

Counsel for Appellants

Jacob A. Goldberg

Faruqi & Faruqi

101 Greenwood Avenue

Suite 600

Jenkintown, PA 19046

Counsel for Appellants

Kurt B. Olsen

Klaftner, Olsen & Lessner

1250 Connecticut Avenue, N.W.

Suite 200

Washington, DC 20035

Counsel for Appellants

Jill M. Czeschin

Matthew A. Goldberg

Timothy E. Hoeffner (argued)

DLA Piper
 That provision of the Securities Exchange Act of 1934 1

states:

It shall be unlawful for any person, directly or

3

1650 Market Street

One Liberty Place, Suite 4900

Philadelphia, PA 19103

Counsel for Appellee

 

OPINION

 

SMITH, Circuit Judge.

This appeal arises from the denial of class certification

in a securities fraud class action. John Malack purchased notes

issued by American Business Financial Services, Inc.

(“American Business”), a subprime mortgage originator, and

those notes were later rendered worthless during the subprime

mortgage meltdown. He now seeks compensation from BDO

Seidman LLP (“BDO”), an accounting firm that assisted

American Business in allegedly defrauding him and other

investors by providing American Business clean audit opinions

that were used to register the notes with the Securities and

Exchange Commission (“SEC”). Malack filed a putative

securities fraud class action against BDO based on § 10(b) of

the Securities Exchange Act of 1934 and Rule 10b-5. The 1 2
indirectly, by the use of any means or

instrumentality of interstate commerce or of the

mails, or of any facility of any national securities

exchange--

. . . 

(b) To use or employ, in connection with the

purchase or sale of any security registered on a

national securities exchange or any security not

so registered, or any securities-based swap

agreement (as defined in section 206B of the

Gramm-Leach-Bliley Act), any manipulative or

deceptive device or contrivance in contravention

of such rules and regulations as the Commission

may prescribe as necessary or appropriate in the

public interest or for the protection of investors.

15 U.S.C. § 78j(b).

 Rule 10b-5 states: 2

It shall be unlawful for any person, directly or

indirectly, by the use of any means or

instrumentality of interstate commerce, or of the

mails or of any facility of any national securities

exchange,

(a) To employ any device, scheme,

or artifice to defraud,

4
(b) To make any untrue statement

of a material fact or to omit to state

a material fact necessary in order to

make the statements made, in the

light of the circumstances under

which they were made, not

misleading, or

(c) To engage in any act, practice,

or course of business which

operates or would operate as a

fraud or deceit upon any person, 

in connection with the purchase or

sale of any security.

17 C.F.R. § 240.10b-5.

 All references to “Rule 23” refer to Rule 23 of the 3

Federal Rules of Civil Procedure.

 Malack did not seek certification of a class based on 4

actual reliance.

5

District Court denied class certification, holding that Malack

did not satisfy the predominance requirement of Rule 23(b)(3)3

because he did not establish a presumption of reliance under the

fraud-created-the-market theory. Malack now appeals the 4

denial of class certification.

This case turns on the application vel non of the fraud-
6

created-the-market theory of reliance. Without the presumption

of reliance afforded by that theory, Malack cannot receive class

certification. The theory’s validity is an issue of first

impression for this Court, and other Courts of Appeals are split

over whether it should be recognized. We join the Seventh

Circuit in rejecting the theory and will affirm the District

Court’s denial of class certification.

I.

The District Court had jurisdiction under 15 U.S.C. §

78aa and 28 U.S.C. § 1331. This appeal reaches us under 28

U.S.C. § 1292(e) and Rule 23(f). A district court’s decision on

class certification is reviewed for an abuse of discretion. In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir.

2008). An abuse of discretion occurs “if the district court’s

decision rests upon a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact.”

Id. (internal quotation marks omitted). “[W]hether an incorrect

legal standard has been used is an issue of law to be reviewed

de novo.” Id. (internal quotation marks omitted).

II.

Malack and other investors directly purchased notes from

American Business between October 3, 2002, and January 20,

2005. The notes promised to pay interest well above the prime

rate without the involvement of underwriters or brokers, were
7

non-transferrable, could only be cashed in after they matured,

and had no market for resale. The notes were issued pursuant

to American Business’s 2002 and 2003 registration statements

and prospectuses filed with the SEC. BDO provided the audit

opinions necessary to complete the filings with the SEC.

On January 21, 2005, American Business filed a Chapter

11 petition for reorganization. On May 17, 2005, that

proceeding was converted to a Chapter 7 liquidation. Malack

and the other investors suffered substantial losses as a result.

On February 15, 2008, Malack filed a putative securities fraud

class action against BDO, alleging that its audits of American

Business were deficient. According to Malack, had BDO done

its job properly, it would not have issued American Business

clean audit opinions. Malack further alleges that without clean

audit opinions, American Business would not have been able to

register the notes with the SEC, the notes would not have been

marketable, and Malack and the other investors would not have

purchased the notes. Based on these allegations, Malack

asserted that BDO violated § 10(b) of the 1934 Act and Rule

10b-5. 

Malack sought class certification. The District Court,

after a thorough analysis of the possible approaches through

which Malack might have obtained a presumption of reasonable

reliance based on the fraud-created-the-market theory, denied

his request, concluding that the proposed class did not satisfy
 The District Court’s opinion diligently marched 5

through the relevant facts and law, properly identifying the key,

relevant aspects of the class certification procedure as set forth

in In re Hydrogen Peroxide Antitrust Litigation. Malack v.

BDO Seidman, LLP, No. 08-0784, 2009 U.S. Dist. LEXIS

67785, at *7-9 (E.D. Pa. Aug. 3, 2009). In particular, the

District Court correctly stated that at class certification Malack

must “demonstrate that [each essential] element [of his claim]

. . . is capable of proof at trial through evidence that is common

to the classrather than individual to its members.” Id. at *11-12

(internal quotation marks omitted). After a discussion of the

elements of a Rule 10b-5 claim, including the element of

reasonable reliance, id. at *12-15, the District Court turned to

whether Malack could establish a presumption of reliance based

on the fraud-created-the-market theory, id. at *18-42. It

surveyed the various approaches to the theory, applied each

approach to Malack’s claim, and concluded that under no

approach could Malack receive a presumption of reliance. Id.

8

the predominance requirement of Rule 23. Malack timely 5

petitioned for permission to appeal under Rule 23(f). We

granted that petition and now must consider whether the District

Court erred in denying Malack class certification.

III.

Malack challenges the District Court’s predominance

determination.
9

Predominance “tests whether proposed classes are

sufficiently cohesive to warrant adjudication by

representation [. . . .]” “Issues common to the

class must predominate over individual issues . .

. .” Because the “nature of the evidence that will

suffice to resolve a question determines whether

the question is common or individual,” “‘a

district court must formulate some prediction as

to how specific issues will play out in order to

determine whether common or individual issues

predominate in a given case[.]’” “If proof of the

essential elements of the cause of action requires

individual treatment, then class certification is

unsuitable.”

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 310-11

(internal citations omitted). “Accordingly, we examine the

elements of [Malack’s] claim ‘through the prism’ of Rule 23 to

determine whether the District Court properly [denied]

certifi[cation] [of] the class.” Id. at 311. 

A § 10(b) private damages action has six elements:

(1) a material misrepresentation (or

omission);

(2)scienter, i.e., a wrongful state of

mind;

(3) a connection with the purchase
10

or sale of a security;

(4) reliance, often referred to in

cases involving public securities

markets (fraud-on-the-market

cases) as “transaction causation”;

(5) economic loss; and

(6) “loss causation,” i.e., a causal

connection between the material

misrepresentation and the loss.

McCabe v. Ernst & Young, LLP, 494 F.3d 418, 424 (3d Cir.

2007) (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336,

341-42 (2005)) (emphasis omitted). The District Court denied

class certification because Malack was unable to show that the

proposed class was entitled to a presumption of reasonable

reliance, AES Corp. v. Dow Chem. Co., 325 F.3d 174, 178 (3d

Cir. 2003) (explaining “reasonable reliance”). The reliance

element “requires a showing of a causal nexus between the

misrepresentation and the plaintiff’s injury, as well as a

demonstration that the plaintiff exercised the diligence that a

reasonable person under all of the circumstances would have

exercised to protect his own interests.” Id. Proving reliance for

individual class members can quickly become a cumbersome

endeavor that overwhelms the “questions of law or fact

common” to the proposed class, Fed. R. Civ. P. 23(b)(3), and

could preclude class certification, see id. It is likely that for this
11

reason, Malack sought to invoke a presumption of reliance.

A.

The Supreme Court has held that a presumption of

reliance exists in two circumstances. The first means for

establishing a presumption of reliance was setforth in Affiliated

Ute Citizens of Utah v. United States, 406 U.S. 128 (1972). In

that decision, the Supreme Court explained that “positive proof

of reliance is not a prerequisite to recovery” in cases “involving

primarily a failure to disclose” material facts by defendants

obligated to disclose such facts. Id. at 153. “All that is

necessary is that the facts withheld be material in the sense that

a reasonable investor might have considered them important in

. . . making . . . th[e] [investment] decision.” Id. at 153-54.

Second, in Basic Inc. v. Levinson, 485 U.S. 224 (1988),

the Supreme Court recognized the fraud-on-the-market theory

as a means for establishing a presumption of reasonable reliance

in an efficient market:

“The fraud on the market theory is based on the

hypothesis that, in an open and developed

securities market, the price of a company’s stock

is determined by the available material

information regarding the company and its

business. . . . Misleading statements will therefore

defraud purchasers of stock even if the purchasers
12

do not directly rely on the misstatements. . . . The

causal connection between the defendants’ fraud

and the plaintiffs’ purchase of stock in such a

case is no less significant than in a case of direct

reliance on misrepresentations.”

Id. at 241-42 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61

(3d Cir. 1986)). “[I]n an efficient market[,] . . . misinformation

directly affectsthe stock prices at which the investor trades and

thus, through the inflated or deflated price, causes injury even

in the absence of direct reliance.” Newton v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 259 F.3d 154, 175 (3d Cir. 2001)

(internal quotation marks omitted). Therefore, “[r]eliance may

be presumed when a fraudulent misrepresentation or omission

impairs the value of a security traded in an efficient market.”

Id.

Some Courts of Appeals have held that a presumption of

reliance may be established through a third theory—the fraudcreated-the-market theory. Compare, e.g., Shores v. Sklar, 647

F.2d 462, 464 (5th Cir. 1981) (en banc) (setting forth the fraudcreated-the-market theory), with Eckstein v. Balcor Film

Investors, 8 F.3d 1121, 1130-31 (7th Cir. 1993) (rejecting the

theory). Malack seeks to rely on this theory to establish a

presumption of reliance for the proposed class.
13

B.

The fraud-created-the-market theory posits that “[t]he

securities laws allow an investor to rely on the integrity of the

market to the extent that the securities it offers to him for

purchase are entitled to be in the market place.” Shores, 647

F.2d at 471. A presumption of reliance is established where a

plaintiff “prove[s] that the defendants conspired to bring to

market securities that were not entitled to be marketed.” Abell

v. Potomac Ins. Co., 858 F.2d 1104, 1121 (5th Cir. 1988)

(internal quotation marks omitted), vacated on other grounds

sub nom. Fryar v. Abell, 492 U.S. 914 (1989); 4 Thomas Lee

Hazen, Treatise on the Law of Securities Regulation §

12.10[6][C] (6th ed. 2010) (explaining that a fraud-created-themarket claim involves “a fraudulent scheme depicting the

existence of a market which in fact would not exist upon full

and accurate disclosure”).

If [the plaintiff] proves no more than that the

[securities] would have been offered at a lower

price or a higher rate, rather than that they would

never have been issued or marketed, he cannot

recover. . . . Th[e] theory is not that [the

plaintiff] bought inferior [securities], but that the

[securities] he bought were fraudulently

marketed. 

Shores, 647 F.2d at 470-71. To be unmarketable, the securities

must be “so lacking in basic requirements that [they] would
14

never have been approved by the [issuing entity] nor presented

by the underwriters had any one of the participants in the

scheme not acted with intent to defraud or in reckless disregard

of whether the other defendants were perpetrating a fraud.” Id.

at 468. To invoke the theory, a plaintiff must allege that (1)

“the existence of the security in the marketplace resulted from

the successful perpetration of a fraud on the investment

community” and (2) that she “purchased in reliance on the

market.” Id. at 464. Critical to the theory’s coherency is the

assumption that it is reasonable for an investor to rely “on [a]

[security’s] availability on the market as an indication of [its]

apparent genuineness[.]” Id. at 470. 

“[Un]marketability, as envisioned by the Shores court, is

an elusive concept.” Ross v. Bank South, N.A., 885 F.2d 723,

735 (11th Cir. 1989) (en banc) (Tjoflat, J., concurring). Three

rough categories of unmarketability have emerged: legal,

economic, and factual. The lines distinguishing one from the

other are hazy. Legal unmarketability asks “if, absent fraud, a

regulatory agency or the issuing municipality would have been

required by law to prevent or forbid the issuance of the

security.” Ockerman v. May Zima & Co., 27 F.3d 1151, 1160

(6th Cir. 1994). Economic unmarketability asks if “no investor

would buy [the security] because, assuming full disclosure, [it]

is patently worthless.” Id. This approach focuses on

“hypothetical [securities] that could be issued at any

combination of price and interest rate.” Ross, 885 F.2d at 739

(Tjoflat, J., concurring). “[C]ould the [securities], because of
 Although we have yet to consider the fraud-created- 6

the-market theory, the district courts of thisCircuit have applied

both the economic and factual unmarketability approaches.

Compare, e.g., Gruber v. Price Waterhouse, 776 F. Supp. 1044,

1052 (E.D. Pa. 1991) (endorsing economic unmarketability and

stating that the theory “only applies where the underlying

business is an absolute sham, worthless from the beginning”),

with Wiley v. Hughes Capital Corp., 746 F. Supp. 1264, 1293

(D.N.J. 1990) (applying factual unmarketability approach). We

confront the fraud-created-the-market theory head-on—rather

than assuming, without deciding, that it is valid—to provide

future guidance to the district courts.

15

the enormous risk of nonpayment, have been brought onto the

market at any combination of price and interest rate if the true

risk of nonpayment had been known?” Id. at 736. Finally,

factual unmarketability looks to the actualsecuritiesissued, and

asks “whether, in the absence of fraud, the [securities] would

have been issued given the actual price and interest rate at

which they were issued.” Id. at 735 (emphasis omitted).

“Under this [approach], a [security] is unmarketable if, but for

the fraudulent scheme, some ‘regulatory’ entity (whether

official or unofficial) would not have allowed the [security] to

come onto the market at its actual price and interest rate.” Id.

at 736 (emphasis omitted).6

IV.

Malack asks us to embrace the legal unmarketability
16

approach to the fraud-created-the-market theory. No matter

what approach istaken, however, the theory lacks a basis in any

of the accepted grounds for creating a presumption. 

“Presumptions typically serve to assist courts in

managing circumstances in which direct proof, for one reason

or another, is rendered difficult.” Basic Inc., 485 U.S. at 245

(citing D. Louisell & C. Mueller, Federal Evidence 541-42

(1977)). “[C]onsiderations of fairness, public policy, and

probability, as well as judicial economy,” often underlie the

creation of presumptions. Basic Inc., 485 U.S. at 245; United

States Dep’t of Justice v. Landano, 508 U.S. 165, 174 (1993);

Fed. R. Evid. 301 advisory committee’s note. Another relevant

concern in the creation of a presumption is whether it is

“consistent with . . . congressional policy[.]” Basic Inc., 485

U.S. at 245. “Common sense” also plays a role. Id. at 246.

Courts may also create presumptions “to correct an imbalance

resulting from one party’s superior access to the proof,”

Kenneth S. Broun, George E. Dix, Edward J. Imwinkelreid,

D.H. Kaye, Robert P. Mosteller & E.F. Roberts, McCormick on

Evidence § 343 (John W. Strong ed., 5th ed. 1999), where

“social and economic policy incline the courts to favor one

contention,” id., or “to avoid a[] [factual] impasse,” id.

“Generally, however, the most important consideration in the

creation of presumptions is probability. Most presumptions

have come into existence primarily because judges have

believed that proof of fact B renders the inference of the

existence of fact A so probable that it is sensible and timesaving
17

to assume the truth of fact A until the adversary disproves it.”

Id.

The fraud-created-the-market theory rests on the

conjecture that a “[security’s] availability on the market [i]s an

indication of [its] apparent genuineness[.]” Shores, 647 F.2d at

470. Malack points to “common sense and probability” as

support for this conjecture, but neither of these considerations

bolsters the idea that securities on the market, by the mere virtue

of their availability for purchase, are free from fraud. Other

considerations relevant to the creation of a presumption also

counsel for rejection of the fraud-created-the-market theory.

A.

“Common sense,” to the extent Malack invokes it as

support, calls for rejecting the proposition that a security’s

availability on the market is an indication of its genuineness and

is worthy of an investor’s reliance. For a security’s availability

on the market to be an indication of its genuineness there must

be some entity involved in the process of taking the security to

market that acts as a bulwark against fraud. Yet the entities

most commonly involved in bringing a security to market do not

imbue the security with any guarantee against fraud. 

The security’s promoter and other entities involved in the

issuance, such as the underwriter, the auditor, and legal

counsel—the very entities often charged with fraud—cannot be
One could argue that an issuer and related entities 7

“benefit when [they] develop[] a reputation for disclosing

accurate information to investors” and therefore they would

18

reasonably relied upon to prevent fraud. Ross, 885 F.2d at 739-

41 (Tjoflat, J., concurring).

All of the parties involved in an issuance have a

significant self-interest in marketing the securities

at a price greater than their true value. The

promoter/corporation and the issuer (if a separate

entity) have an obvious interest in marketing the

securities regardless of their true fair market

value. Likewise, the [legal] counsel and

underwriter, who are often retained under a

contingency fee contract, are interested in

marketing the securities at an inflated price. The

underwriter in particular, who, like an insurer,

can spread the risk of loss among many stock or

bond subscriptions, has a reduced incentive to

investigate thoroughly the true value of the

securities it underwrites.

Id. at 740. If we were to credit the fraud-created-the-market

theory based on the entities involved in the issuance “we [would

have to] believe that an initial investor may reasonably rely on

clearly self-interested (perhaps dishonest) parties to make

decisions that are at least burdensome and at most economically

irrational.” Id. Such a belief runs counter to common sense. 7
generally seek to disclose accurate information. Robert A.

Prentice, The Inevitability of a Strong SEC, 91 Cornell L. Rev.

775, 781 (2006). Yet recent economic history undermines this

argument. Id. Many entities now forgo the long term benefits

of accurate disclosures for the prospect of short term gain. Id.

at 782. Indeed, a significant amount of academic literature is

devoted to examining the factors influencing issuers and related

entities to, on the whole, act less honestly than we once believed

they did. See, e.g., Ronald J. Gilson & Reiner Kraakman, The

Mechanisms of Market Efficiency Twenty Years Later: The

Hindsight Bias, 28 Iowa J.Corp. L. 715 (2003); John C. Coffee,

Jr., What Caused Enron? A Capsule Social and Economic

History of the 1990s, 89 Cornell L. Rev. 269 (2004).

19

The SEC likewise cannot be reasonably relied upon to

prevent fraud because it does not conduct “merit regulation.”

Rather, it seeks to confirm that the issuer adequately disclosed

information pertaining to the security:

The SEC does not review the merits of the

registration statement and the offering. [I]n

reviewing 1933 Act registration statements, as is

the case with SEC review of filings generally, the

focus is on the adequacy and clarity of the

disclosure. Specifically, the SEC will consider

whether the applicable disclosure items are

explained in sufficient detail and with sufficient

clarity. In addition to the review of the adequacy

of the disclosures, the SEC will examine clarity
 For example, the federal regulation pertaining to the 8

“[f]orepart of [a] [r]egistration [s]tatement and [the] [o]utside

[f]ront [c]over [p]age of [a] [p]rospectus” states that if a

commission legend is needed it must “indicate[] that neither the

[SEC] nor any state securities commission has approved or

disapproved of the securities or passed upon the accuracy or

adequacy of the disclosures in the prospectus and that any

contrary representation is a criminal offense.” 17 C.F.R. §

229.501(b)(7).

20

and also will conduct a “plain English” review of

those portions of the registration statement that

are subject to the SEC’s plain English disclosure

requirements.

1 Thomas Lee Hazen, Treatise on the Law of Securities

Regulation § 3.7[2]. “The SEC does not read all of the publicly

available information about an offering and then determine the

legitimate price for the security . . . [n]or does [it] endorse any

of the documents involved in the issuance of securities.”

Joseph v. Wiles, 223 F.3d 1155, 1165-66 (10th Cir. 2000)

(internal citation omitted).8

Disclosure of adverse information may lower the price of

a security, but it will not prevent that security from going to

market:

The existence of a security does not depend on, or

warrant, the adequacy of disclosure. Many a
21

security is on the market even though the issuer

or some third party made incomplete disclosures.

Federal securities law does not include “merit

regulation.” Full disclosure of adverse

information may lower the price, but it does not

exclude the security from the market. Securities

of bankrupt corporations trade freely; some

markets specialize in penny stocks. Thus the

linchpin of Shores—that disclosing bad

information keeps securities off the market,

entitling investors to rely on the presence of the

securities just as they would rely on statements in

a prospectus—is simply false.

Eckstein, 8 F.3d at 1130-31 (internal citations omitted); Note,

The Fraud-on-the-Market Theory, 95 Harv. L. Rev. 1143, 1158

(1982) (“[A]ny argument about an expectation fostered by SEC

regulation is severely undermined by the fact that the SEC does

not vouch for either the substantive value of any issue or the

veracity of the representations by any issuer.”). In short, the

“fil[ing] [of] a misleading document with [the SEC] does not

lend any more credibility or veracity to the document than if [it]

had simply [been] given . . . to investors.” Joseph, 223 F.3d at

1166. 

Malack all but outright concedes that there is no common

sense justification for the proposition that a security’s presence

on the market is an indication of its genuineness upon which an

investor may reasonably rely. In his brief, he conceded that the
22

SEC does not conduct merit regulation. At oral argument, he

agreed that even if BDO had not committed the alleged fraud,

the notes still would have passed SEC review and would have

made it to market:

THE COURT: What if [BDO] had said in

all candor, well, the

company here, [American

Business], is using a

discount rate that may be

lower than what the market

among similar [interest-only

strips] that are being . . .

sold across this country

would indicate. And in fact,

they may be understating

their default rate in

comparison to similarly

situated issues. But having

said that, these are the facts

which a buyer should be

aware of. And this is,

indeed, a risky investment

which pays a high interest

rate. 

* * *

THE COURT: The SEC would’ve said

accepted, go ahead and sell.
 Stripped of its fortuitously similar name—which may 9

have bolstered its credibility with some courts—the fraudcreated-the-market theorygains no support from the universally

accepted fraud-on-the-market theory. The latter is ultimately

grounded in the efficient market hypothesis, which, while

imperfect, has a basis in economics. See In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1425 (3d Cir. 1997). The

same cannot be said for the former. The fraud-created-the23

[MALACK’S Certainly, if that disclosure

COUNSEL]: had been provided in the

p r o s p e c t u s i n t h e

registration statement[.]

Oral Argument Tr. 9:7-9:24, June 23, 2010. If the American

Business notes would have gone to market with or without

BDO’s allegedly fraudulent audit, then there is no common

sense connection between BDO’s audit and Malack’s ability to

purchase the notes. Thus, there is no reason to view the notes’

presence on the market as being indicative of their genuineness.

B.

Malack’s vague invocation of probability also fails to

lend any support to the assertion that a security’s availability on

the market is an indication of its genuineness. Unlike the fraudon-the-market theory, which was supported by empirical studies

and economic theory, see Basic Inc., 485 U.S. at 246-47, the

fraud-created-the-market theory has the support of neither.

9
market theory has no underlying economic justification and any

attempt to ride the coattails of the fraud-on-the-market theory is

easily rejected. The fraud-created-the-market theory, according

to its proponents, may be invoked for any security—even when

the market is inefficient, such as in the case of newly issued

securities—because its chief prerequisite is that the security

have simply made it to market. See Ross, 885 F.2d at 739

(Tjoflat, J., concurring); Jonathan R. Macey & Geoffrey P.

Miller, Good Finance, Bad Economics: An Analysis of the

Fraud-on-the-Market Theory, 42 Stan. L. Rev. 1059, 1060 n.5

(describing the Shores decision as “[p]erhaps the most striking

example of the misapplication of [the efficient market

hypothesis]”). In its most expansive incarnation, the fraudcreated-the-market theory would render superfluous the fraudon-the market theory advanced in Basic Inc. and the

presumption of reliance set forth in Affiliated Ute because it

could be invoked in any instance where a security has made it

to market.

24

Moreover, Malack does not articulate any reason why

probability supports his view. If his reliance on probability is

based on the idea that almost all marketed securities are, in fact,

legally marketable, and therefore we should presume that

anything offered on the market has not been stained by fraud,

then Malack is advocating for a kind of investor insurance that

eliminates the need for proving reliance in any securities fraud

case. Any investor who purchases any security could point to

the security’s availability on the market to satisfy the reasonable

reliance element of a § 10(b) claim. Such insurance “expand[s]
25

the SEC’s role beyond its intended or realistic scope.” Joseph,

223 F.3d at 1165.

The establishment of investor insurance is contrary to the

goals of securities laws. See Basic Inc., 485 U.S. at 252 (White,

J., concurring in part and dissenting in part); Fener v. Operating

Eng’rs Const. Indus. & Miscellaneous Pension Fund (Local

66), 579 F.3d 401, 411 (5th Cir. 2009); Robbins v. Koger

Props., 116 F.3d 1441, 1447 (11th Cir. 1997); Ockerman, 27

F.3d at 1162; Grigsby v. CMI Corp., 765 F.2d 1369, 1376 (9th

Cir. 1985); List v. Fashion Park, Inc., 340 F.2d 457, 463 (2d

Cir. 1965). “[T]he securities laws enacted by Congress in the

1930s were not intended to create a scheme of investors’

insurance or to regulate directly the underlying merits of various

investments. Compared to the consumer-oriented legislation of

the late 1960s and 1970s, the federal securities laws leave a

great many potential ‘harms’ (in the sense of economic losses

by individual investors) unremedied.” Shores, 647 F.2d at 482

(Randall, J., dissenting). 

Because Malack has not articulated any justification for

his argument that probability supports the fraud-created-themarket theory, and because the most obvious possible

justification is flawed, we are comfortable stating that the theory

is not supported by probability and decline to further speculate

on the issue.

C.
26

Other considerations relevant to whether a presumption

should be created similarly point toward rejecting the fraudcreated-the-market theory. First, the theory does not serve the

securities laws’ goal of informing investors via disclosures. “In

Affiliated Ute, the Supreme Court described the 1934 Act and

its companion legislative enactments (including the Securities

Act of 1933) as embracing a ‘fundamental purpose to substitute

a philosophy of full disclosure for the philosophy of caveat

emptor and thus to achieve a high standard of business ethics in

the securities industry.’” Id. (quoting Affiliated Ute, 406 U.S.

at 151); Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 477-78

(1977) (noting that the Supreme Court has “repeatedly . . .

described the ‘fundamental purpose’ of the [Securities

Exchange] Act as implementing a ‘philosophy of full

disclosure’”); SEC v. Zandford, 535 U.S. 813, 819 (2002);

Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 571 (1995) (“The

primary innovation of the 1933 Act was the creation of federal

duties -- for the most part, registration and disclosure

obligations -- in connection with public offerings.”).

“[T]he federal securities laws are intended to put

investors into a position from which they can help themselves

by relying upon disclosures that others are obligated to make.”

Shores, 647 F.2d at 483 (Randall, J., dissenting). The fraudcreated-the-market theory, contrary to this goal, allows

“monetary recovery [for] those who refuse to look out for

themselves.” Id. Investors need not examine a disclosure

because, no matter what, the security’s presence on the market
27

would be enough to satisfy the reasonable reliance element of

a § 10(b) claim. See id. Indeed, an investor stands to lose

nothing by blindly purchasing securities without examining any

disclosure because the damages award for a fraud-created-themarket claim would be the same as the measure of damages for

a Rule 10b-5 claim based on actual reliance:

[T]he only workable measure of damages in a

Shores action would be the full price paid by the

plaintiff for the new issue. That being so, a

Shores award would simply be the plaintiff’s

out-of-pocket expenses caused by the fraud -- the

same measure of damages for a standard Rule

10b-5 recovery based upon actual reliance, see L.

Loss, Fundamentals of Securities Regulation 967

(2d ed. 1988) (out-of-pocket normally means

difference between price paid and value of

securities). Thus, under Shores, any incentive to

read disclosures essentially disappears since

plaintiffs would receive the full purchase price

for their securities without having to read

disclosure information. 

Ross, 885 F.2d at 743 (Tjoflat, J., concurring). Moreover, “an

investor might rationally seek to avoid reading disclosures in

order to preserve a possible claim under Shores.” Id. at 744.

The less an investor knows about the security, aside from the

fact that it is on the market, the lesslikely it isthatshe will learn

of information that would sever the link between the alleged
28

fraud and her decision to purchase the security. Cf. Basic Inc.,

485 U.S. at 248 (explaining how fraud-on-the-market

presumption may be rebutted). Discouraging investors from

examining disclosures accompanying securities runs contrary to

Congress’s goal of empowering investors with the information

they need to make educated, prudent investment decisions.

Malack argues that the fraud-created-the-market theory

would serve Congress’s goals of promoting honesty and fair

dealings in the securities markets. Shores, 647 F.2d at 470; see

7 Alba Conte & Herbert Newberg, Newberg on Class Actions

§ 22:1 (4th ed. 2002) (“[T]he federal securities laws were

designed to deter future wrongdoing in the securities field and

promote the integrity of the securities market, and the class

action has been recognized as an effective means to realize

these goals.”). Promoting honesty and fair dealings is certainly

an important concern, but it is also an exceedingly abstract

concern. If we were guided mainly by the promotion of free

and honest securities markets, then we would seek to expand §

10(b) liability whenever possible to prevent fraud. But that has

not been the approach taken by the federal courts. The

securities laws are not a catchall for any fraudulent activity

committed in connection with a securities offering. For

example, the Supreme Court in Central Bank of Denver, N.A.

v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994),

held that “a private plaintiff may not maintain an aiding and

abetting suit under § 10(b).” Id. at 191. It did so over a dissent

that cited the Exchange Act’s goal of “creati[ng] and
29

maint[aining] . . . a post-issuance securities market that is free

from fraudulent practices.” Id. at 193 (Stevens, J., dissenting)

(internal quotation marks omitted).

More recently, in Stoneridge Investment Partners, LLC

v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008), the Supreme

Court cast further doubt on the legitimacy of expansively

presuming reliance to promote honesty and fair dealings. In

Stoneridge, the Supreme Court noted that, at least since Central

Bank, Congress has approved of narrowing the scope of § 10(b)

liability. As already explained, in Central Bank, the Supreme

Court held that “§ 10(b) liability did not extend to aiders and

abettors.” Stoneridge, 552 U.S. at 157. “Th[at] decision . . . led

to calls for Congress to create an express cause of action for

aiding and abetting within the Securities Exchange Act.” Id. at

158. But Congress declined to do so. Id. “Instead, in § 104 of

the Private Securities Litigation Reform Act of 1995 (PSLRA),

109 Stat. 757, [Congress] directed [that] prosecution of aiders

and abettors [be carried out] by the SEC.” Id. (citing 15 U.S.C.

§ 78t(e)). The PSLRA also instituted heightened pleading and

loss causation requirements for “any private action” arising

from the Securities Exchange Act. Stoneridge, 552 U.S. at 165-

66. Therefore, Congress’s actions after Central Bank were in

accord with the Supreme Court’s view that § 10(b) liability

should remain narrow and limited to its current contours. See

id. at 165 (“Congress . . . ratified the implied right of action

after the [Supreme] Court moved away from a broad

willingness to imply private rights of action.”); cf. Merrill
30

Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 80-

82 (2006) (explaining that Congress passed the Securities

Litigation Uniform Standards Act of 1998 to stem the shift of

securities litigation from federal to state courts sparked by the

PSLRA); 15 U.S.C. § 78bb(f)(1).

In addition, the Stoneridge Court explained that

“[c]oncerns with the judicial creation of a private cause of

action caution against” the expansion of the § 10(b) cause of

action. Stoneridge, 552 U.S. at 165. Extending the cause of

action “is for Congress, not for [the courts].” Id. The Supreme

Court, after describing the two accepted presumptions of

reliance set forth in Affiliated Ute and Basic Inc., id. at 159,

stated unequivocally that “the § 10(b) private right should not

be extended beyond its present boundaries,” id. at 165.

Although the Stoneridge Court was notspecifically considering

the fraud-created-the-market theory, we view its instruction as

general support for rejecting such new presumptions of reliance.

 See id. at 159; cf. Desai v. Deutsche Bank Sec. Ltd., 573 F.3d

931, 942 (9th Cir. 2009) (per curiam). Adoption of the fraudcreated-the-market theory would extend § 10(b) liability far

beyond its current contours. 

Policy concerns also support rejection of the fraudcreated-the-market theory. Congress has made it clear that it is

hostile to frivolous § 10(b) litigation. E.g., 15 U.S.C. § 78u4(b)(2) (requiring particularity in securities fraud complaint

where “plaintiff may recover money damages only on proof that
31

the defendant acted with a particular state of mind”); id. § 78u4(c) (providing sanctionsfor abusive litigation). Yet the fraudcreated-the-market theory encourages exactly such litigation by

essentially eliminating the reliance requirement for a § 10(b)

claim. This has at least two negative impacts.

First, Rule 10b-5 litigation, by its very nature, is costly.

An increase in frivolous litigation drives up the overall costs of

issuing securities, ultimately harming everyone involved. In

Central Bank, the Supreme Court noted that Rule 10b-5

litigation presents a “danger of vexatiousness different in

degree and in kind from that which accompanies litigation in

general.” Central Bank, 511 U.S. at 189 (internal quotation

marks omitted). As support, the Court pointed to Senator

Sanford’s statement that “in 83% of 10b-5 cases major

accounting firms pay $ 8 in legal fees for every $ 1 paid in

claims.” Id. (citing 138 Cong. Rec. S12605 (Aug. 12, 1992)

(remarks of Sen. Sanford)). Secondary actors, like accounting

firms, must “expend large sums even for pretrial defense and

the negotiation of settlements.” Central Bank, 511 U.S. at 189.

These costs infect the function of the entire securities market,

harming professionals (lawyers, accountants, etc.), the

companies they serve, and investors:

[N]ewer and smaller companies may find it

difficult to obtain advice from professionals. A

professional may fear that a newer or smaller

company may not survive and that business
32

failure would generate securities litigation against

the professional, among others. In addition, the

increased costs incurred by professionals because

of the litigation and settlement costs under 10b-5

may be passed on to their client companies, and

in turn incurred by the company’s investors, the

intended beneficiaries of the statute.

Id.

Second, the presumption of reliance is a powerful tool

for plaintiffs seeking class certification and class certification

puts pressure on defendants to settle claims, even if they are

frivolous. See In re Hydrogen Peroxide Antitrust Litig., 552

F.3d at 310 (noting that “class certification may force a

defendant to settle rather than incur the costs of defending a

class action and run the risk of potentially ruinous liability”)

(internal quotation marks omitted); Dabit, 547 U.S. at 80

(“Even weak cases brought under . . . Rule [10b-5] may have

substantial settlement value . . . because [t]he very pendency of

the lawsuit may frustrate or delay normal business activity.”)

(internal quotation marks omitted); In re Constar Int’l Inc. Sec.

Litig., 585 F.3d 774, 780 (3d Cir. 2009) (explaining that class

certification is an “especially serious decision”); Newton, 259

F.3d at 162 (recognizing “that denying or granting class

certification is often the defining moment in class actions . . .

[because] it may . . . create unwarranted pressure to settle

nonmeritorious claims on the part of defendants”). A frivolous
 To be clear, our holding rejecting the fraud-created- 10

the-market theory in its entirety is in no way weakened by the

following discussion.

33

class action becomes much more troublesome when it is aided

by a presumption of reliance and defendants may seek to settle

early and often to avoid litigation costs and the risk of getting

hit with a large verdict at trial. Rewarding frivolous actions

with settlements is clearly undesirable.

V.

Assuming, hypothetically, that we were to endorse the

fraud-created-the-market theory, and that we followed Malack’s

approach to the theory, his appeal would still fail. Malack 10

urges us to follow the legal unmarketability test offered in T.J.

Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel

Authority, 717 F.2d 1330 (10th Cir. 1983). But even if we did

so, he would not be able to successfully invoke a presumption

of reasonable reliance. In T.J. Raney & Sons, the Tenth Circuit

held that “[f]ederal and state regulation of new securities at a

minimum should permit a purchaser to assume that the

securities were lawfully issued.” Id. at 1333. Importantly, it

added that its holding “does not imply in any way that the

regulatory body considers the worth of the security or the

veracity of the representations made in the offering circular nor

does it establish a scheme of investors’ insurance.” Id. (internal

quotation marks omitted). Instead, it extended the protection of
34

Rule 10b-5 to “cases in which the securities were not legally

qualified to be issued” and there was “a scheme to defraud or

act to defraud.” Id. Applying its legal unmarketability test to

the facts of the case, the Tenth Circuit observed that the entity

accused of fraud was found not to be a valid public trust during

Chapter IX proceedings and therefore its issuance of bonds was

prohibited by state law. Id. Based on this observation, the

Tenth Circuit held that the plaintiff “reasonably relied on the

availability of the bonds [for sale] as indicating their lawful

issuance[.]” Id. 

The instant case does not meet the T.J. Raney & Sons test

for legal unmarketability. Critical to thatCourt’s reasoning was

the observation that the relevant bonds were issued in violation

of state law because the issuer was not a valid public trust. See

id. Because the issuer never had the legal right to issue the

bonds and the bonds were marketed with the intent to defraud,

the bonds were legally unmarketable. See id. There was no

similar legal impediment to American Business issuing notes.

Malack conceded at oral argument that had BDO properly

conducted the audit and disclosed the deficiencies he argues

were present in the allegedly fraudulent audit, the SEC still

would have permitted the notes to go to market. According to

the Tenth Circuit, “[t]here is a significant difference between

securities which should not be marketed because they involve

fraud, and securities which cannot be marketed because the

issuers lack legal authority to offer them.” Joseph, 223 F.3d at

1165 (emphasis added). Malack’s own arguments in this appeal
35

place American Business’s notes squarely into the former

category, and such securities do not satisfy the Tenth Circuit’s

fraud-created-the-market test, id.

VI.

The fraud-created-the-market theory lacks a basis in

common sense, probability, or any of the other reasons

commonly provided for the creation of a presumption. As such,

we decline to recognize a presumption of reliance based on the

theory and will affirm the District Court’s denial of class

certification.