13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 1 13-1476-cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2013

(Argued: February 5, 2014 Decided: July 24, 2015)

Docket No. 13-1476-cv

LORELEY FINANCING (JERSEY) NO. 3 LI MITED, LORELEY FINANCING (JERSEY)

NO. 5 LIMITED, LORELEY FINANCING (JERSEY) NO. 15 LIMITED, LORELEY

FINANCING (JERSEY) NO. 28 LIMITED, LORELEY FINANCING (JERSEY) NO. 30

LIMITED,

Plaintiffs-Appellants

,

– v. –

WELLS FARGO SECURITIES, LLC, WELLS FARGO SECURITIES INTERNATIONAL

LIMITED, WELLS FARGO BANK, N.A., HARDING ADVISORY LLC, STRUCTURED

ASSET INVESTORS, LLC, LONGSHORE CDO FUNDING 2007-3 LTD.,

Defendants-Appellees

,

OCTANS II CDO LTD.,

Defendant

.

Before: LEVAL, CALABRESI, and LYNCH, Circuit Judges

.

Appeal from the judgment of the United Stat es District Court for the Southern District

of New York (Sullivan, J. ) dismissing, with prejudice, Plai ntiffs’ complaint for failure to

state a claim. In late 2006 and early 2007, Plaintiffs invested millions of dollars in the

notes of three financial products known as collateralized debt obligations (“CDOs”).

After those notes became worthless during the recent financial crisis, Plaintiffs brought

this action against several parties responsibl e for structuring, marketing, and managing

the CDOs (collectively, “Defendants”), alleging, inter alia , fraud by Defendants in

connection with disclosures made in the offe ring materials. Because we conclude that13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 2 the district court erred in aspects of its di smissal under Rule 12(b)(6) and also exceeded

the bounds of its discretion in denying Plaint iffs’ request to replead, we reverse in part,

vacate in part, and remand for further pr oceedings consistent with this opinion.

Sheron Korpus, Kasowitz, Benson, Torres & Friedman

LLP (James M. Ringer, Meister Seelig & Fein LLP;

Marc E. Kasowitz and David M. Max, Kasowitz,

Benson, Torres & Friedman LLP, on the brief ), New

York, NY, for Plaintiffs-Appellants

.

Jayant W. Tambe, Jones Day (Todd R. Geremia,

Howard F. Sidman, and Alexander P. McBride, Jones

Day; David C. Bohan and William M. Regan, Katten

Muchin Rosenman LLP; Joseph J. Frank, Matthew L.

Craner, Agnès Dunogué, and Kelly M. Daley, Orrick,

Herrington & Sutcliffe LLP, on the brief ), New York,

NY, for Defendants-Appellees.

GUIDO CALABRESI, Circuit Judge :

This case, like so many others of late, concerns liability for investment losses.

Specifically, it asks who, if anyone, ought to shoulder legal blame for losses suffered as

part of the recent financial crisis. Plaint iffs-Appellants—whose names are all numbered

variants of “Loreley Financing” (colle ctively, “Plaintiffs”)—are special-purpose

investment entities operated by the Germ an bank IKB Deutsche Industriebank AG and

domiciled in the Bailiwick of Jersey, Ch annel Islands. In late 2006 and early 2007,

Plaintiffs invested millions of dollars in th e notes of three financial products known as

collateralized debt obligations (“CDOs ”). Two of the CDOs were named for

constellations: Octans CDO II (“Octans”) and Sagittarius CDO I (“Sagittarius”)

(together, the “constellation CDOs”). Th e third was Longshore CDO Funding 2007-3

(“Longshore”). Each CDO was created an d sold by three Wachovia subsidiaries13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 3 (collectively, “Wachovia”). Between late 2007 and mid-2008, all three CDOs went into

default, failing to make payments owed to Plaintiffs.

In April 2012, in the wake of these losses an d the larger financial crisis, Plaintiffs

filed suit in New York state court against several parties responsible for structuring,

offering, and managing the CDOs (collectivel y, “Defendants”). Plaintiffs allege, among

other things, fraud in connection with disclos ures about the construction of the three

CDOs. According to the complaint, Defendan ts represented to “long” investors like

Plaintiffs that the constellation CDOs would be handled by judicious collateral

managers, even though Defendants knew that, in reality, these CDOs had been built at

the direction of a powerful “short” investor who stood to profit massively if the CDOs

failed. As to Longshore, the non-constellation CDO, Plaintiffs allege that despite similar

representations it was used to dump toxic assets from Wachovia’s own balance sheets at

above-market prices.

After this case was removed to federal cour t, the United States District Court for

the Southern District of New York (Sullivan, J. ) dismissed the complaint under Rule

12(b)(6), denying Plaintiffs’ request to replead. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells

Fargo Secs., LLC , 12 Civ. 3723 (RJS), 2013 WL 1294668 (S.D.N.Y. Mar. 28, 2013). Because

we conclude that the district court erred in aspects of its dismissal of Plaintiffs’ fraud

claim and also exceeded the bounds of its discretion in denying Plaintiffs leave to

amend the complaint as to the remaining clai ms, we reverse in part, vacate in part, and

remand the case for further proceedings consistent with this opinion.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 4 BACKGROUND

Plaintiffs’ fraud allegations are only inte lligible if one has some understanding of

the basic structure and function of CDOs. We offer a brief description before turning to

the particulars of this case.

The Structure of a CDO 1 

### A.

The construction of a CDO begins, at least conceptually, with asset-backed loans,

such as mortgages or car loans. These loans ar e, of course, contracts in which the lender

trades capital up front for the borrower’s pr omise, secured by the borrower’s asset, to

make monthly payments. Banks frequently sell their secured rights to the monthly

payments to the makers of financial produc ts known as “asset-backed securities,” the

most prominent of which are mort gage-backed securities (“MBSs”).

An MBS is created when a financial institution bundles a large number of

mortgage loans into a special-purpose entity. The resulting entity owns the rights to a

large pool of borrowers’ monthly payments. Th e institution simultaneously sells notes

backed by the MBS, i.e. , by the bundle of loans, and may also sell equity interests in the

MBS. When the maker of an MBS does this—when it sells the rights to the cash flow

generated by the mortgages in its bundle—it may do so by creating different classes, or

“tranches,” of notes. “Tranching” allows the bank to create notes with different risk-

1 Our description draws from and supplements the helpful accounts already given by other courts,

including panels of our Court as well as district courts in this Circuit. See, e.g.

, Fin. Guar. Ins. Co. v. Putnam

Advisory Co., LLC

, 783 F.3d 395, 398 (2d Cir. 2015); Gearren v. McGraw

‐ Hill Cos., Inc.

, 690 F. Supp. 2d 254,

258 n.2 (S.D.N.Y. 2010); In re Am. Int’l Grp., Inc. 2008 Sec. Litig.

, 741 F. Supp. 2d 511, 520 (S.D.N.Y. 2010).

For a more comprehensive introduction to CDOs, see generally Douglas J. Lucas, Laurie S. Goodman &

Frank J. Fabozzi, Collateralized Debt Obligations: Structures and Analysis (2d ed. 2006).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 5 and-return profiles and thereby to attract a v ariety of buyers, from the most risk-averse

to the least. Such tranches are often classifi ed by letter, with first priority in receiving

payment given to the holders of tranche “A” notes, second priority to “B,” and so on.

The riskier, lower-priority notes will receive higher interest rates. (Although lettering

conventions differ across MBSs, the mechani cs are roughly the same, regardless of how

the various tranches are denominated.) At the bottom of the hierarchy is a small class of

investors who have purchased equity interests in the MBS.

The payment scheme for the different tranches is typically known as a

“waterfall.” As mortgage payments come into the MBS entity, they cascade, “watering”

tranche A noteholders first, then B, and so on down to the equi ty. No part of the

borrowers’ payments will go to the holders of equity in the MBS unless those payments

exceed what the MBS must pay to its noteho lders. The brunt of any borrower’s default

on one of the underlying mortgages is theref ore borne first by the equity interest, then

by the most junior notes, intermediate note s, and so on. It take s a large number of

defaults to impair the cash flow to hold ers of tranche A notes—which is what makes

those notes the least risky. If, however, the MBS performs well, receiving full payment,

the holders of the riskier tranches (and especi ally the equity) will receive higher returns.

By bundling large numbers of mortgages together into tranched MBS notes, a

bank can achieve a number of goals. For one, it can create securities that enable nonlending institutions to invest in the housing market. In addition, it can create relatively

safe investment opportunities through the se nior tranches, because it takes widespread

mortgage defaults to impair the cash flow to those tranches. Needless to say, the word13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 6 “relatively” bears emphasizing in light of the real estate market collapse that lies behind

this case and the many other cases like it.

In the same way that an MBS comprises a bundle of mortgage notes, a CDO

comprises a bundle of MBS (or other asset-ba cked security) notes. Thus, where an MBS

is a financial product backed by mortgages, a CDO is, in a sense, simply a second-order

MBS, backed by those first-order financial pr oducts. A CDO is likewise built by creating

a special-purpose entity that takes possession of a large group of notes—say, tranche B

notes of various MBSs. The CDO will then sell to investors tranches of notes with

diminishing priority, paying out the funds co llected on the securities held by the CDO

to noteholders in the order of the tranches’ relative priority.

A related type of derivative security available to investors in the mortgage

market is a “credit default swap” (“CDS”). A CDS is known as a “derivative” because it

transfers the risk associated with owning a particular security without necessarily

transferring ownership of that security. In general, derivatives are purely financial

contracts that call for payment by one contract ing party to the other based on a specific

event, such as fluctuation in the value of a se lected security, interest rate, market index,

or the like. Investment in a mortgage-based CDS is the opposite of investment in

mortgage notes, in that it benefits the investor only if the borrowers do not make their

mortgage payments. More precisely, the purchaser of the CDS promises to make

regular monthly payments to the issuer in ex change for the issuer's promise to pay the

purchaser in the event—and roughly to th e extent—that borrowers default in making13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 7 payments on the selected category of mortgage notes. Unless such defaults occur, the

CDS buyer gets nothing in retu rn for her regular payments.

Investment in mortgage-based CDSs ca n serve two purposes. First, it may

function as a speculative bet against the mor tgage market. In other words, an investor

who believed the housing market to be unrea listically inflated could purchase a CDS in

anticipation of borrowers’ defaults. Such an investor is essentially shorting the

mortgage market, while the issuer of the CD S is taking a “long” position in that

market. 2 

### Indeed, an investor eager to capitalize on an expected downturn in the market

could increase its short position by purcha sing multiple CDSs, thereby placing what

amounts to a very large bet on impending defaults by borrowers. A second use for a

CDS is as a hedge, or insurance against such defaults. Thus, investors in MBSs or CDOs,

whose cash flow and value depend on bo rrowers’ making their payments, can lessen

the consequences of defaults by purchasing CD Ss keyed to a similar class of mortgages.

As pertinent here, some CDOs contain—inaddition to asset-backed securities

like MBSs—derivative securities like CDSs. A CDO might contain, for instance, not only

specific tranches of MBS notes but also the long side of CDS contracts related to those

tranches. In that case, the cash flow in to the CDO would come from the regular

2 The buyer of a CDS is sometimes referred to as holding the long position. See, e.g.

, Anouk G. P. Claes

& Mark J. K. De Ceuster, Single Name Credit Default Swap Valuation: A Review

, in Credit Risk: Models,

Derivatives and Management (Niklas Wagner ed., 2008). While we understand the motivation for that

usage, we think that, at least in the securities litigation context, it makes more sense to use “long” to refer

to the position taken by the party who stands to benefit from the success of the reference security—here,

the CDS seller. See Lucas et al., supra

, at 221 (“The protection seller under a CDS is said to be the seller of

the CDS, but he is also long the CDS and long the underlying credit. The logic behind selling protection

and being long the CDS is that the protection seller is in the same credit position as someone who owns,

or is long, a bond.”).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 8 payments by the CDS buyers—the short investors—as well as payments on the

underlying mortgages. The CDO would also bear the corresponding risk both of

defaults by borrowers and of the payouts to CDS buyers triggered by such defaults.

Given that CDOs consist of a portfolio of assets, a crucial matter for the makers

of a CDO is deciding who will pick the assets, e.g. , the MBSs and CDSs that will be

bundled together to form the CDO’s collateral. Generally, this job is performed by a

“collateral manager,” an entity or person who has discretion to select assets that further

the goals, and fulfill the requirements, of the CDO. Such requirements may concern

various characteristics of the collateral secu rities, including their ratings by credit

ratings agencies, their contractual stru cture, and their performance to date.

With that basic structure in mind, we tu rn to the particulars of this case.

Plaintiffs’ Fraud Allegations B.

Plaintiffs invested millions in three CDOs created and offered by Wachovia:

Octans, Sagittarius, and Longshore. Wachovia marketed these CDOs to Plaintiffs and

also sold CDSs on each CDO. Structured Asset Investors, LLC (“SAI”), a Wachovia

subsidiary, and Harding Advisory LLC (“Harding”), an independent company, served

as collateral managers—Harding for Octans, SAI for Sagittarius and Longshore. All

three CDOs held MBS notes as well as the long side of CDS contracts.

With respect to Octans and Sagittarius, Plaintiffs allege that, contrary to

representations made to investors, Harding an d SAI selected shoddy, high-risk assets at

the urging of Magnetar Capital LLC (“Magnet ar”), a hedge fund that stood to profit

massively if the CDOs failed. As to Longshor e, Plaintiffs allege that, without telling13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 9 investors, Wachovia used it to dump, at ab ove-market prices, riskier MBS notes that

had been on Wachovia’s own balance sheets. Each alleged scheme is recounted more

fully below.

1. The Constellation CDOs: Octans and Sagittarius

According to the complaint, Magnetar collu ded with several banks and collateral

managers to “orchestrate” at least 27 CDOs named after constellations, including

Octans and Sagittarius. J.A. at 112. Magnet ar would purchase the equity tranches in

exchange for clandestine influence over the selection of assets. Although, as an equity

holder, Magnetar thus stood to benefit from the CDOs’ success, it used its position and

influence to advance a contrarian investment strategy. In reality, Magnetar was betting

heavily against the CDOs and the underlying MBSs by buying the short side of CDS

contracts, which it had the ability to purchase at below-market prices from banks like

Wachovia as a condition of its equity investment in the CDOs. Magnetar was

simultaneously able to fund these short posi tions with payments from its equity stake

for a longer period of time, until the CDOs actually went into default, because the

CDOs had been structured—at Magnetar’s in sistence—so that they would not divert

cash from the equity holders to senior tranch es in the face of early warning signs that

the value of the portfolio collateral was deteriorating.

Plaintiffs, however, did not bring this suit against Magnetar. The instant

litigation concerns Magnetar’s helpmeets, Defendants, who are alleged to have

conspired in structuring the deals and att racting long investors like Plaintiffs by

masking Magnetar’s central and adverse role.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 10 As to Octans, the offering documents tout ed Harding’s experience and skill as a

collateral manager, stating that Harding woul d “[i]nvest in high quality assets with

stable returns” and “minimize losses throug h rigorous upfront credit and structural

analysis, as well as ongoing monitoring of asset quality and performance.” Id. at 121.

The documents also specified numerous proc edures to be used by Harding in asset

selection, including “detailed loan-level analysis.” Id. at 121-22.

Harding, however, allegedly acted entirely contrary to these re presentations. It

acceded to Magnetar’s requests, knowing that Magnetar’s interests were directly at

odds with the CDOs’ success. In support of th is claim, Plaintiffs assert several facts

regarding particular email exchanges betw een Magnetar and Harding in August and

September 2006, as assets were being selected . In one such exchange—between James

Prusko, Magnetar’s Senior Vice President, and Wing Chau, Harding’s founder and

president—Prusko requests to be copied on the trade approval process and updated

daily if any trading activity occurred, addi ng, “We should also discuss CDO exposure

as I will source the CDO CDS.” Id. at 124. Chau responds, “Sounds good.” Id. In another

such exchange, a Harding employee asks Prus ko “to let [them] know if [Magnetar]

plan[s] on shorting any names into any of the [Octans] transactions.” Id. at 125. An

email to Prusko three days later from the same employee lists shorting opportunities

that Harding was “able to source for [Magnetar].” Id . Based on these and other such

exchanges, Harding is alleged not only to ha ve known of Magnetar’s shorting activities

but also to have facilitated and concealed them.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 11 Ignorant of Magnetar’s role, Plaintiffs invested $94 million in October 2006 in the

notes of various Octans tranches. All of th ese notes became virtually worthless when

the respective tranches went into default in May 2008.

Plaintiffs’ factual allegations regarding Sagittarius are similar. The Sagittarius

term sheets outlined the same type of go als as the Octans term sheets, detailing

similarly rigorous procedures for managing the CDO. The “conservative approach” of

the chosen collateral manager, SAI, was a key selling point, as Defendants knew. Id. at

128. With respect to both CDOs, Defendants stressed the collateral manager’s expertise

and its approach to asset selection because, as acknowledged in the offering documents,

each CDO’s performance ultimately turned on these two variables.

Plaintiffs allege that, despite these re presentations, Magnetar exerted control

over SAI’s asset selection, as it did over Harding’s, and that Magnetar’s strategy of

betting against Sagittarius was known to SAI. For example, Prusko assertedly emailed

Wachovia’s managing director early on, statin g that while he “didn’t mean to kill [SAI]

off,” he did want it to be “more user friendly.” Id . at 131. A few months later, a

Wachovia trader allegedly emailed Prusko wi th a list of especially weak MBSs that were

proposed for inclusion in the CDO, inviting him to express “any thoughts or concerns.”

Id. at 132. Prusko responded, “Let[’]s test the waters!” Id. Finally, in March 2007 Prusko

sent Wachovia an email to which he atta ched a document that graphed Magnetar’s

returns for different projected loss scenarios . The graph showed that the worse the CDO

performed, the larger Magnetar’s profit. In the body of the email Prusko himself

described Sagittarius as “not a pretty bond.” Id. at 134.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 12 In March 2007 Plaintiffs invested $5 m illion in Sagittarius Class A and B notes

each. Both tranches defaulte d in October of that year.

2. Longshore

The third CDO at issue, Longshore, was not among the constellation CDOs

created as part of Magnetar’s so-called “lon g-short” strategy. As with the other two

CDOs, however, the Longshore offering docume nts highlighted the high quality of the

asset selection and due diligence procedures that would be used by the collateral

manager—here SAI. Contrary to these repr esentations, Wachovia allegedly used

Longshore as a dumping ground for MBS asse ts that it knew faced an imminent and

steep decline in value, including assets on Wachovia’s own books that were being

transferred into Longshore from the warehouse of another, canceled CDO deal.

As detailed in the complaint, these a llegations were the subject of a fraud

investigation by the SEC. In an order i ssued as part of the settlement of that

investigation, the SEC found that while Wacho via represented in its offering documents

that Longshore assets would be acquired in deals resembling arm’s -length transactions,

the assets from the collapsed CDO were transfe rred at their original cost basis despite,

according to Wachovia’s own internal valuat ions, a significant decline in their fair

market value.

In April 2007 Plaintiffs bought notes of various Longshore tranches with a total

face value of $59.1 million. In February 2008 these notes went into default.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 13 Procedural History C.

In April 2012, in the wake of these losses and the larger financial crisis, Plaintiffs

filed suit in New York state court agains t Defendants—namely, the CDO entities, SAI

and Harding, and certain subsidiaries of Wells Fargo, which acquired Wachovia in

2008. The case was removed to federal court pursuant to the Edge Act. See 12 U.S.C.

§ 632; 28 U.S.C. § 1441(a). 3



### In July 2012, following the voluntary dism issal of certain defendants, but before

the remaining defendants moved to dismiss, the district court held a “pre-motion

conference.” In three-page letters and at oral argument, the parties previewed their

arguments in support of and opposition to th e remaining defendants’ anticipated Rule

12(b)(6) motion. At that conferen ce, the district court also in quired of Plaintiffs whether

they wished to amend the complaint in light of this preview, stating that it was not

necessarily the court’s practice to “give them another opportunity later.” J.A. at 415. The

court indicated that it considered Defendants ’ pre-motion letter and the points raised at

conference to provide “fair warning” of De fendants’ arguments and the potential need

for amendment. Id. Plaintiffs declined the court’s invitation to amend, arguing that the

complaint was legally sufficient to state a claim for fraud.

3 The Edge Act gives original jurisdiction to federal district courts over any civil suit involving a

corporate party “organized under the laws of the United States” and “arising out of transactions

involving international or foreign banking [or] other international or foreign financial operations.” 12

U.S.C. § 632. The present suit falls under the Edge Act because Wells Fargo Bank, N.A. (a party to this

action as the successor in interest of Wachovia Bank, N.A.) is a federally chartered corporation, and this

suit “arise[s] out of [its] offshore banking or financial transaction[s].” Am. Int ʹ l Grp., Inc. v. Bank of Am.

Corp.

, 712 F.3d 775, 784 (2d Cir. 2013).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 14 Shortly thereafter, Defendants moved to di smiss the complaint for failure to state

a claim under Rule 12(b)(6). 4 

### While vigorously opposing the motion, Plaintiffs also

requested leave, in the alternative, to amend the complaint. See J.A. at 584 (citing Fed. R.

Civ. P. 15(a)(2)). In February 2013, the distri ct court held oral argument on the motion,

at the end of which Defendants raised th e issue of amendment, reading back the

relevant portions of the pre-motion confer ence transcript. Plaintiffs’ counsel twice

sought to be heard on the issue and wa s twice denied a chance to respond. See J.A. at

732 (“THE COURT: All [defense counsel] di d was quote to me what I said at the

premotion conference. I was there. An d the time to respond was then.”).

In March 2013 the district court issued a memorandum opinion dismissing the

complaint in its entirety, with prejudice. See Wells Fargo , 2013 WL 1294668, at *16 & n.3.

The instant appeal followed.

DISCUSSION

Plaintiffs challenge on appeal the dist rict court’s determination that they

inadequately pleaded their fraud claim as well as the court’s concomitant denial of their

request to replead. We review de novo the district court’s dism issal under Rule 12(b)(6),

accepting all factual allegations in the complaint as true and drawing all reasonable

inferences in Plaintiffs’ favor. Adelson v. Harris , 774 F.3d 803, 807 (2d Cir. 2014). We

4 Defendants simultaneously moved, under Rule 12(b)(2), to dismiss the complaint as to Wells Fargo

Securities International Limited for lack of personal jurisdiction, which motion the district court granted.

See Wells Fargo

, 2013 WL 1294668, at *5

‐ 6. As Plaintiffs do not contest this part of the district court’s

decision, that specific Wells Fargo subsidiary is not a party to this appeal.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 15 review the district court’s denial of le ave to amend the complaint for abuse of

discretion. See Lotes Co. v. Hon Hai Precision Indus. Co. , 753 F.3d 395, 403 (2d Cir. 2014).

I

Before turning to particular aspects of Plaintiffs’ complaint, we briefly address

the law that applies to pleading fraud in general, including a threshold choice-of-law

question in this somewhat unusual case.

When a federal district court sits in divers ity, it applies the Federal Rules of Civil

Procedure, as it does in all but a few civil actions, see Fed. R. Civ. P. 1, and it generally

applies the decisional law of the state in whic h it sits, including th e forum state’s choiceof-law rules. See 28 U.S.C. § 1652; Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496

(1941); In re Coudert Bros. LLP , 673 F.3d 180, 186 (2d Cir. 2012). The district court’s

jurisdiction here, however, was not predicated on diversity. The case was removed

from New York state court pursuant to th e Edge Act, which similarly confers federal

jurisdiction but neither provides any substant ive federal law for us to apply nor guides

our choice-of-law inquiry. See 12 U.S.C. § 632; A.I. Trade Fin., Inc v. Petra Int’l Banking

Corp. , 62 F.3d 1454, 1459-65 (D.C. Cir. 1995) (offering in-depth discussion of choice of

law in Edge Act litigation); cf. Barkanic v. Gen. Admin. of Civil Aviation of the People’s

Republic of China , 923 F.2d 957, 959 (2d Cir. 1991) (analyzing Foreign Sovereign

Immunities Act’s comparable lack of choice-of-law provisions)

. The difficulties inherent

in choice-of-law questions under the Edge Ac t need not, however, detain us. In the

instant case, the district court applied the substantive law of New York. Wells Fargo

,13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 16 2013 WL 1294668, at *8. And, as neither party objects, we will do the same. See Vacold

LLC v. Cerami , 545 F.3d 114, 122-23 (2d Cir. 2008). 5



### Under New York law, fraud requires proof of (1) a material misrepresentation or

omission of a fact, (2) knowledge of that fact’s falsity, (3) an intent to induce reliance, (4)

justifiable reliance by the plaintiff, and (5) damages. Eurycleia Partners, LP v. Seward &

Kissel, LLP , 12 N.Y.3d 553, 559 (2009); see Lama Holding Co. v. Smith Barney , 88 N.Y.2d

413, 421 (1996). At the pleading stage, to with stand a Rule 12(b)(6) challenge in federal

court, Plaintiffs must “asse rt facts that plausibly suppo rt the inference of fraud.” Cohen

v. S.A.C. Trading Corp. , 711 F.3d 353, 360 (2d Cir. 2013).

5 In decades past, panels of our Court analyzed choice of law in Edge Act cases under federal

common law. See, e.g.

, Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, N.A.

, 731 F.2d 112, 120

‐ 21 (2d Cir.

1984); Corporacion Venezolana de Fomento v. Vintero Sales Corp.

, 629 F.2d 786, 791

‐ 92 (2d Cir. 1980). It is not

clear, however, that employing federal common law was determinative of the choice

‐ of

‐ law issue in

either Aaron Ferer or Corporacion Venezolana

. And the Supreme Court’s curtailment of federal common

lawmaking in the years since those cases were decided casts doubt on the durability of their approach.

See, e.g.

, Atherton v. F.D.I.C.

, 519 U.S. 213, 218 (1997) (requiring “significant conflict” between federal

policy and use of state law as “precondition” for federal common lawmaking); O ʹ Melveny & Myers v.

F.D.I.C.

, 512 U.S. 79, 87 (1994) (same); see also In re Gaston & Snow

, 243 F.3d 599, 605 (2d Cir. 2001)

(“[F]ederal choice of law rules are a species of federal common law

. . . . [And they] are no different from

any other judicially created rule of decision.

. . .” (citations omitted)). In light of the Supreme Court’s

more recent pronouncements, at least one circuit has endorsed the opposite approach in Edge Act cases—

namely, applying the forum state’s choice of law. See Petra Int’l

, 62 F.3d at 1463

‐ 64 (“[W]here the ‘federal

question’ giving rise to federal jurisdiction need not appear upon the face of a well

‐ pleaded complaint,

there is no reason for the federal court to conduct any different choice

‐ of

‐ law inquiry than would a court

of the forum state in deciding the same issue.”).

We need not decide the question here, however. The complaint asserts, and Defendants do not

dispute, that “all Defendants transacted business within New York giving rise to Plaintiffs’ causes of

action,” and that the conduct complained of was “orchestrated

. . . in and from New York.” J.A. at 105.

And the result is therefore likely the same, regardless of whether we analyze choice of law under federal

or New York law. Compare Corporacion Venezolana

, 629 F.2d at 793 (2d Cir. 1980) (inquiring into which

state has most significant contacts with litigation), and Aaron Ferer

, 731 F.2d at 121 (same), with Schultz v.

Boy Scouts of Am., Inc.

, 65 N.Y.2d 189, 197 (1985) (inquiring into which state has “greatest interest” in

litigation).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 17 Additionally, in conjunction with the faci al plausibility standard of Rule 12(b)(6),

Plaintiffs must satisfy the heightened plea ding standard set forth in Rule 9(b), which

reads:

In alleging fraud or mistake, a p arty must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge,

and other conditions of a person’s mind may be alleged generally.

Fed. R. Civ. P. 9(b).

In essence, Rule 9(b) places two furthe r burdens on fraud plaintiffs—the first

goes to the pleading of the circumstances of the fraud, the second to the pleading of the

defendant’s mental state. As to the first, we have held that the complaint must “(1)

detail the statements (or omissions) that the plaintiff contends are fraudulent, (2)

identify the speaker, (3) state where and when the statements (or omissions) were

made, and (4) explain why the statemen ts (or omissions) are fraudulent.” Eternity Global

Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y. , 375 F.3d 168, 187 (2d Cir. 2004)

(internal quotation marks omitted). As to the second, though mental states may be

pleaded “generally,” Plaintiffs must nonethele ss allege facts “that give rise to a strong

inference of fraudulent intent.” Lerner v. Fleet Bank, N.A. , 459 F.3d 273, 290-91 (2d Cir.

2006).

In determining the adequacy of Plainti ffs’ fraud pleadings under these various

requirements, we view the alleged facts in their totality, not in isolation. See Tellabs, Inc.

v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322-23 (2007). As always at the Rule 12(b)(6)

stage, we credit all non-conclusory factual allegations in the complaint and draw all

reasonable inferences in Plaintiffs’ favor. Nielsen v. Rabin , 746 F.3d 58, 62 (2d Cir. 2014).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 18 The question that governs our de novo review is whether such allegations and inferences

plausibly indicate Plaintiffs’ entitlement to relief. See Ashcroft v. Iqbal , 556 U.S. 662, 678-

80 (2009).

The district court gave several grounds for its dismissal of Plaintiffs’ fraud claim:

(1) the complaint as a whole did not diffe rentiate among the Wachovia entities, Wells

Fargo , 2013 WL 1294668, at *9, *13; (2) the pleadings as to the constellation CDOs raised

neither a plausible inference of a material misrepresentation nor a strong inference of

scienter, id. at *10-13; and (3) the pleadings as to Longshore impermissibly relied on the

SEC order and were otherwise insufficiently particular, id . at *13-15. Upon our own

review, we find Plaintiffs’ fr aud pleadings sufficient to state a claim against defendants

Wachovia and Harding, but not against defe ndant SAI. Moreover, for the reasons given

in Part III, infra , we conclude that even as to SAI, whose dismissal was proper, dismissal

with prejudice was improper. Accordingly, we reve rse the dismissal in part, as to

Wachovia and Harding, and we vacate it in part, as to SAI, remanding the case to the

district court to determine on the basis of an amended complaint whether repleading

will cure the defects identified by us below. See infra Sections I.B.2, I.C, I.D.2.

Identification of the Speaker A.

Under Rule 9(b), Plaintiffs must “ide ntify the speaker” of the allegedly

fraudulent statements. Eternity Global , 375 F.3d at 187. According to Defendants, the

complaint fails because it attributes these statements to a cluster of subsidiaries

collectively referred to as “Wachovia” rather than to any specific Wachovia entity. In

response, Plaintiffs argue that their pleadings satisfy Rule 9(b) on this score because the13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 19 speaker is a group of affiliates, and an appropriate factual basis for such grouping

exists. In rejecting Plaintiffs’ argument, the district court concluded that the allegations

of interrelatedness were insufficient to tr eat the Wachovia entities as a group for

purposes of the identification requirement. See Wells Fargo , 2013 WL 1294668, at *9, *12.

We disagree.

The complaint identifies three Wachovia en tities who acted together to structure

and offer the securities in question: (1) Wac hovia Capital Markets, LLC, as the initial

purchaser of the notes issued by all three CDOs; (2) Wachovia Securities International

Limited, as this initial purchaser’s agent fo r the sale of the Sagittarius and Longshore

notes; and (3) Wachovia Bank, N.A. as the initial CDS counterparty for the three CDOs,

their warehouse financing provider, and the liquidity provider for Octans and

Sagittarius. See J.A. at 104. 6 

### When read together with th e complaint as a whole, these

allegations suffice, in our view, to “inform ea ch defendant of the nature of [its] alleged

participation in the fraud.” DiVittorio v. Equidyne Extractive Indus., Inc. , 822 F.2d 1242,

1247 (2d Cir. 1987). The complaint states at the ou tset that it will refer to these entities

collectively as “Wachovia,” J.A. at 99, and we are hard-pressed to see how Plaintiffs

could have done otherwise in the context of the present litigation, or why they ought to

have done otherwise based on our cases.

6 As noted in the Procedural History, supra

, the corresponding defendants in this case are three Wells

Fargo subsidiaries, one of whom—Wells Fargo Securities International Limited, the successor in interest

of Wachovia Securities International Limited—was dismissed for lack of personal jurisdiction. See Wells

Fargo

, 2013 WL 1294668, at *5

‐ 6.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 20 Our Circuit first addressed the issue of group-produced misrepresentations in

Luce v. Edelstein , 802 F.2d 49 (2d Cir. 1986). There, disg runtled investors in an “ill-fated

real estate partnership” alleged securities fraud, suing the partnership, its general

partners (themselves partnerships), affiliate d entities, and the individuals who tightly

controlled all of them. Id . at 51. The complaint attributed to “defendants” as an

undifferentiated group several statements about the securities in question—in

particular, (1) statements made in an offeri ng document and (2) other oral and written

statements made outside the offering documents themselves.

The treatment in Luce of the two types of statements is instructive. We held that

while, as to the second category, the compla int lacked the specificity required by Rule

9(b), such group pleading was sufficient as to the first category, i.e. , the statements

made in the offering document. Id. at 55 (“[N]o specific connection between fraudulent

representations in the Offering Memorandu m and particular defendants is necessary

where . . . defendants are insiders or affiliate s participating in the o ffer of the securities

in question.”); see Ouaknine v. MacFarlane , 897 F.2d 75, 80 (2d Cir. 1990) (“[R]eference to

an offering memorandum satisfies 9(b)’s requirement of identifying time, place,

speaker, and content of representation where . . . defendants are insiders or affiliates

participating in the offer of securities.”); DiVittorio, 822 F.2d at 1247. 7

7 Defendants suggest in their brief that group pleading may no longer be viable in the wake of the

PSLRA. While other circuits have held that the PSLRA eliminated group pleading for private actions

under the federal securities laws, see, e.g.

, Winer Family Trust v. Queen

, 503 F.3d 319, 336 (3d Cir. 2007), we

note that numerous district courts in our Circuit have reached the opposite conclusion. See City of Pontiac

Gen. Employees’ Ret. Sys. v. Lockheed Martin Corp.

, 875 F. Supp. 2d 359, 373 (S.D.N.Y. 2012) (collecting

cases). The vitality of the group pleading doctrine as to federal securities fraud is an open question in our

Circuit, and one that is not before us in this case. Plaintiffs’ fraud claim here is governed by state common13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 21 The statements here belong to the first category treated in Luce : official materials

produced in connection with the sale of se curities. Plaintiffs allege that Wachovia

itself—acting through three different affilia tes—structured the CDOs, was the initial

purchaser of the notes, provided financing, and acted as the initial CDS counterparty.

The entities named in the complaint and tr eated collectively were thus “insiders or

affiliates participating in the offer of securities,” Ouaknine v. MacFarlane , 897 F.2d 75, 80

(2d Cir. 1990), and they were allegedly “link[ed] . . . in . . . specific way[s] to . . .

fraudulent representation[s] or omission[s ]” made in those offering documents.

DiVittorio , 822 F.2d at 1249.

Even under the heightened pleading stan dard of Rule 9(b), Plaintiffs are not

obliged to disaggregate these affiliates to pursue their fraud claim. Where a plural

author is implied by the nature of the repr esentations—for instance, where, as here, (1)

the alleged fraud is based on statements ma de in the offering materials and (2) the

complaint gives grounds for attributing the statements to the group—group pleading

may satisfy the source identification required by Rule 9(b). Following Luce , we hold that

there is no fixed requirement in such circumst ances to identify a sing le entity within the

group on pain of dismissal.

Moreover, in the instant case, each Wacho via entity was a member of a corporate

subgroup that operated together and co mmunicated with Plaintiffs under a shared

law rather than the PSLRA, and at least in the present context it seems clear to us that Luce and its

progeny remain precedential.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 22 trade name: “Wachovia Securities.” J.A. at 263, 309, 466. 8 

### Each employee involved in the

CDO transactions was listed on a Wachovia Se curities phone list without reference to a

specific entity in the subgroup. And the logo emblazoned on the marketing materials

was that of Wachovia Securities. As a result , Plaintiffs’ designation in the complaint of

these three defendants by a group shorthand rather than their individual entity names

amounts, at most, to excusable mislabeling. Cf. Datskow v. Teledyne, Inc., Cont’l Prods.

Div. , 899 F.2d 1298, 1300-01 (2d Cir. 1990). And the costs of such mislabeling are better

borne in this situation by those who auth ored the offering documents, which were

characterized by that same slippage between the collective trade name and the entities

acting under it. It would be strange indeed to demand greater precision of Plaintiffs in

pleading the author’s identity than they received as readers of these documents.

In sum, given that the alleged fraud focuse s (1) on specific misrepresentations in

the CDO offering documents and (2) on the coordinated activity by specific Wachovia

affiliates in constructing and offering these CDOs, Plaintiffs’ identification of the group

suffices to meet the particularity of attribut ion required by Rule 9(b). Wachovia’s own

lack of transparency in identifying whic h entity was communicating to prospective

investors only bolsters our conclusion in this regard.

Material Misrepresentations and Omissions B.

Having concluded that the complaint sufficiently identifies Wachovia as the

source of many of the statements at issue, we next consider whether “the complaint

assert[s] facts that plausibly su pport the inference of fraud.” Cohen , 711 F.3d at 360.

8 Wells Fargo continues to use a trade name (“Wells Fargo Securities”) to cover the successor entities.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 23 Because the substance of the fraud alleged with respect to Octans and Sagittarius differs

in kind from that alleged with respect to Longshore, we treat the two types of fraud

allegations separately. We discuss the conste llation CDOs in this section and the next,

Section I.C (Scienter), before turnin g to Longshore in Section I.D.

As to Octans and Sagittarius, the district court determined that Plaintiffs had

inadequately pleaded a material misrepresentation or omission. See Wells Fargo , 2013

WL 1294668, at *10-12. In so doing the district co urt erred, in our view, by imposing its

own reading of Plaintiffs’ subs tantive fraud allegations without considering them in the

light most favorable to Plaintiffs. While Rul e 9(b) requires that “the circumstances

constituting fraud” be “state[d] with partic ularity,” Fed. R. Civ. P. 9(b), it does not

require factual pleadings that demonstrate the probability of wrongdoing. See Iqbal , 556

U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement’ . . . .”

(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). At the pleadings stage, the

alleged fraud need only be plausible based on the complaint; it need not be more likely

than other possibilities. Twombly , 550 U.S. at 556 (“[A] well-pleaded complaint may

proceed even if it strikes a savvy judge that actual proof of those facts is improbable,

and that a recovery is very remote and unlik ely.” (citation and internal quotation marks

omitted)); cf. Cohen , 711 F.3d at 360 (“ Iqbal . . . requires assertions of facts supporting a

plausible inference of fraud—not of facts wh ich can have no conceivable other

explanation.”).

Upon our de novo review, we conclude that the fact s asserted in the complaint are

sufficiently particular and plausibly su pport the existence of a material13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 24 misrepresentation or omission with respec t to Wachovia and Harding, but not with

respect to SAI.

1. Wachovia and Harding

The gravamen of Plaintiffs’ complaint is that, as to the two constellation CDOs,

the offering documents (1) misrepresented that SAI and Harding would serve as

judicious collateral managers, who would em ploy certain selection and monitoring

procedures, and (2) omitted both Magnetar ’s role in selecting the collateral and

Magnetar’s adverse position relative to the CDOs.

The complaint plausibly suggests that these alleged misrepresentations were

made by both Wachovia and Harding. First and foremost, Wachovia (as a group)

authored the Octans and Sagittarius offe ring documents in which the allegedly

misleading statements appeared. In addition, Harding itself stated that it “w[ould] be

responsible for selecting and monitoring [Octans’] collateral,” with no mention of

Magnetar. J.A

. at 122. And this statement came from a page of the Octans Offering

Circular prepared by Harding , at the top of which Harding claimed “responsibility for

the information contained in this section” and expressly represented that it had “not

omit[ted] anything likely to affect the import of such information.” Id . at 253.

Plaintiffs allege that had they known that the collateral managers would not

exercise independent judgment and would in stead accede to the desires of a powerful

short investor, they would not have invested in either CDO.

It is not for us to say at this stage wh ether Plaintiffs’ account of Magnetar’s role

and of Defendants’ sleights of hand regarding that role is true, nor is it for us to say13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 25 whether, at a later stage, a judge or jury mi ght find that such misrepresentations were

immaterial to sophisticated investors like Plai ntiffs. The question properly before us is

whether the facts pleaded are sufficiently detailed to satisfy Rule 9(b)—in particular,

whether these facts “plausibly support the inference of fraud.” Cohen , 711 F.3d at 360.

Our conclusion that they do rests, fi rst, on the numerous alleged exchanges

between Magnetar and Defendants. As to Oc tans, for example, various exchanges in

August and September 2006 between Prusko and Chau—senior officers of Magnetar

and Harding, respectively—may be read to suggest (1) Magnetar’s considerable

influence over the CDO and (2) high-level discussions regarding Magnetar’s long-short

strategy. An email from a Wachovia trader to Prusko also refers to “a few trades

[Wachovia] did on behalf of Magnetar,” whil e, in another email, a Harding employee

asks Prusko to “let [them] know if [he] pl an[s] on shorting any names into any of the

[Octans] transactions.” J.A. at 125. Togethe r, such emails plausibly indicate not only a

cozy relationship with Magnetar but also specific actions taken by Wachovia and

Harding at Magnetar’s direction based on Magn etar’s short positions, such as selecting

certain CDSs for inclusion in Octans.

Exchanges between Magnetar and Wachovia pertaining to Sagittarius support a

similar reading of Magnetar’s undisclosed role with respect to this CDO. For example,

Prusko emailed Wachovia’s managing director a request to make SAI more “user

friendly.” Id. at 131. In another email to a team of Wachovia employees a few months

later, Prusko attached a graph showing high er profits to Magnetar from the CDO’s

failure and described Sagittarius as “not a pretty bond.” Id . at 134.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 26 In addition, both Octans and Sagittari us had built-in features conducive to

Magnetar’s alleged strategy, and the presence of these features lends further support to

Plaintiffs’ account of Magnetar’s role. For example, Plaintiffs allege that Magnetar

received sourcing fees for every CDS that it chose for the asset bundle, and that

Magnetar also negotiated for favorable wa terfall rules, which would permit equity

holders like itself to continue receiving paym ents longer in the face of early signs of

default. While at least some of these feat ures were disclosed to investors and may not

form a basis for fraud in themselves, they may be read to suggest favoritism towards

Magnetar and thereby to put Plaintiffs’ other allegations in context.

Construed in the light most favorable to Plaintiffs, the emails regarding Octans

and Sagittarius—together with the structu ral elements advantageous to Magnetar—

plausibly support an inference that the offe ring documents materially misled investors

by falsely holding out the skill and rigorous asset selection methods of the respective

collateral managers while failing to disclos e Magnetar’s antagonistic influence.

The district court reached the opposite conclusion by discounting Plaintiffs’

account as “read[ing] too much” into the ema ils and by proffering benign alternative

explanations. Wells Fargo , 2013 WL 1294668, at *10. In the district court’s view, the

emails show Magnetar merely to have been “an active and involved equity investor.”

Id . at *11. The excerpts of the emails quot ed in Plaintiffs’ complaint are scarcely

unequivocal and may well be susceptible of pl ausible alternative readings. But it is not

our task at this stage to construe the abunda nt industry jargon here in any definitive

fashion. Rule 9(b) requires only that Plaint iffs plead, with particularity, facts from13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 27 which it is plausible to infer fraud; it does not require Plaintiffs to plead facts that make

fraud more probable than other explanations. Iqbal , 556 U.S. at 678; Twombly , 550 U.S. at

556. Drawing all reasonable inferences favora ble to Plaintiffs, we conclude that such

emails are sufficiently particular to render Plaintiffs’ account at least plausible. In

concluding otherwise, the district court erred by requiring Plaintiffs to show that their

reading was superior to the court’s ow n benign reading, thereby imposing a de facto

probability requirement at the pleadings stage. 9



### 2. SAI

Plaintiffs’ pleadings of material misrep resentation falter, however, with respect

to SAI. As explained above, Wachovia (as a grou p) is alleged to have misled investors in

the offering documents by misrepresent ing that Harding and SAI were judicious

collateral managers without disclosing in those documents Magnetar’s part in the

CDOs’ design and asset selection. Harding, t oo, is alleged to have misrepresented its

role—on a page of the Octans Offering Circular for which it took express

responsibility—by stating that it was respon sible for selecting and monitoring Octans’

assets and omitting any mention of Magnetar.

The complaint does not attribute any similar statement to SAI. Plaintiffs allege

only that

9 It is possible that the district court took itself to be required to consider “plausible opposing

inferences” in order to apply the standard not of mere plausibility but of “at least as compelling as any

opposing inference.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.

, 551 U.S. 308, 323

‐ 24 (2007). That standard,

however, reflects the requirement that there be a “ strong inference” of scienter, id

. (emphasis added), and

this comparative inquiry applies only to the scienter element, cf. Lerner

, 459 F.3d at 290

‐ 91, which we

discuss in the next section, and not to the material misrepresentation element discussed here.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 28 SAI, as a subsidiary of Wachovia, shared premises with Wachovia, acted

under Wachovia’s direction, and worked closely with Wachovia to

develop a close relationship with Plai ntiffs’ investment advisor, for the

purpose of selling CDO investments to Plaintiffs.

J.A. at 129.

Whether SAI, like Harding, ever held itself out in official sales materials to be in

charge of selecting assets for the CDO is not clear from the complaint, nor does the

complaint allege facts from which it would be reasonable, at this point, to infer that

SAI—separate and apart from the entities operating as “Wachovia Securities”—misled

investors as to its authority over asset selection by failing to disclose Magnetar’s

influence. To sustain a cause of action for fraud against SAI, Plaintiffs will need to

plead, with the requisite particularity, a mate rial misrepresentation or omission by SAI.

Scienter C.

Under New York law, Plaintiffs must ultimately prove that Defendants

possessed “knowledge of [their misstatements ’] falsity” and “an intent to induce

reliance.” Eurycleia Partners , 12 N.Y.3d at 559. While Rule 9(b) allows mental states to be

“alleged generally,” Fed. R. Civ. P. 9(b), th is relaxation of the heightened pleading

requirement is not to be mistak en “for a license to base claims of fraud on speculation

and conclusory allegations.” Lerner , 459 F.3d at 290. To survive a Rule 12(b)(6)

challenge, Plaintiffs must stat e facts sufficient to “give rise to a strong inference of

fraudulent intent.” Id. ; cf. 15 U.S.C. § 78u-4(b)(2)(A) (using similar language as part of

PSLRA’s pleading standard for federal securities fraud). An inference is “strong” if it is

“cogent and at least as compelling as any opposing inference one could draw from the13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 29 facts alleged.” Tellabs , 551 U.S. at 324. In determining wh ether this strength-of-inference

requirement is met, “[w]e consider the comp laint in its entirety and ‘take into account

plausible opposing inferences.’” Stratte-McClure v. Morgan Stanley , 776 F.3d 94, 106 (2d

Cir. 2015) (quoting Tellabs , 551 U.S. at 323).

The district court concluded that the facts asserted in Plaintiffs’ complaint failed

to raise a strong inference of scienter becaus e those facts raised no plausible inference of

misrepresentation in the first place. See Wells Fargo , 2013 WL 1294668, at *12-13. We

agree with the district court that Plaintiffs have yet to allege a misrepresentation by SAI

and, hence, that, as to SAI, scienter has been inadequately pleaded. As indicated above,

however, we disagree with the district court’s conclusion that the facts in the complaint

are insufficient to infer that Wachovia and H arding materially misled Plaintiffs in the

Octans and Sagittarius offering documents. We must, therefore, proceed to analyze the

sufficiency of the pleadings of scienter as to Wachovia and Harding. In examining these

defendants’ alleged knowledge and intent, we draw all reasonable inferences favorable

to Plaintiffs and take into account any plausible competing inferences.

At the pleading stage, under Rule 9(b), a fraud plaintiff may establish a “strong

inference” of scienter, among other ways, “b y alleging facts that constitute strong

circumstantial evidence of consci ous misbehavior or recklessness.” Lerner , 459 F.3d at

290-91 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). In the

securities fraud context, we have typically fo und it sufficient to state a claim based on

recklessness if the complaint “specifically al lege[s] defendants’ knowledge of facts or

access to information contradicting their public statements.” Novak v. Kasaks , 216 F.3d13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 30 300, 308 (2d Cir. 2000). 10 

### Where the defendant at issue is a corporation, it is possible to

plead corporate scienter by pleading facts suffi cient to create a strong inference either

(1) that “someone whose intent could be imputed to the corporation acted with the

requisite scienter” or (2) that the statements “would have been approved by corporate

officials sufficiently knowledgeable about th e company to know” that those statements

were misleading. Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc. , 531

F.3d 190, 195-96 (2d Cir. 2008) (citation and internal quotation marks omitted).

With respect to Wachovia, the email exchanges and circumstances of the

constellation CDOs’ design suffice to create a strong inference that Michael Thompson,

a managing director, knew of Magnetar’s alle ged position and role vis-à-vis the CDOs

and, hence, also knew (or should have known) that omitting that fact from the Octans

and Sagittarius offering documents made the representations of the collateral managers’

skill and careful selection methods in those documents misleading.

For example, early on, as the Sagittari us CDO was being created and marketed,

Prusko asked Thompson directly to im prove the user-friendliness of SAI, and

Thompson replied that they were “working on that angle.” J. A. at 131. A few weeks

later, a Wachovia trader emailed Prusko, stat ing that Thompson wanted him to forward

a “list of names” of potential assets, addi ng, “Please let us know if you have any

thoughts or concerns.” Id. at 132. (Prusko replied, “Let[’]s test the waters!” Id. ) Prusko

10 Because the parties have confined their arguments regarding scienter to whether the complaint

satisfies Rule 9(b), and have not addressed whether the substantive scienter requirement under New

York law has been met, we likewise consider only whether the complaint adequately pleads scienter

under Rule 9(b).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 31 likewise emailed unidentified Wachovia empl oyees a graph showing increased profits

to Magnetar as Sagittarius failed. In the bo dy of that email, Prusko described the CDO

as “not a pretty bond.” Id . at 134. By containing specific facts showing (1) that Wachovia

knew Magnetar’s profits would increase as Sa gittarius failed and (2) that Magnetar was

being accorded a role in asset selection, the complaint adequately pleads Wachovia’s

awareness of undisclosed facts that rend ered the company’s representations to

investors materially misleading.

With respect to Harding, similar factual a llegations give rise to a strong inference

of corporate scienter. Specifically, Plaintiffs plausibly allege that Wing Chau, Harding’s

principal and owner, knew of Magnetar’s part in constructing Octans and selecting its

assets and, hence, also knew that Hardin g’s own statement in the Octans offering

documents about its “responsib[ility] for selecting and monitoring the collateral

portfolio” was misleading. Id . at 122. Not only does the email correspondence between

Chau and Prusko in August and September 2006 suggest that Harding explicitly catered

to Magnetar; some of these emails may also be read to imply discussions with Magnetar

about CDSs that would be selected for incl usion in Octans on the basis of Magnetar’s

broader investment goals. See id . at 123-124. An email from one of Chau’s subordinates

asking Prusko for specific names that Magn etar would be “shorting . . . into” Octans

supports this reading. Id. at 125.

From these emails, together with the st ructural features of the constellation

CDOs that favored Magnetar’s supposed long-sho rt strategy, it is reasonable to infer

that Thompson and Chau—high-level employees of Wachovia and Harding,13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 32 respectively—knew or should have known that the disclosures in the offering

documents were misleading because of their omission of Magnetar’s influence over the

CDOs’ asset selection. In discussing the el ements of material misrepresentation and

omission, the district court drew from Chau’s emails a contrary non-culpable

inference—namely, that Harding was, at most, “happy to accommodate” certain

requests by “an active and involved equity investor.” Wells Fargo , 2013 WL 1294668, at

*11. Whether Plaintiffs can ultimately prove their account of Magnetar’s short

investment strategy and of its control over the CDOs is, of course, another matter. But

the facts pleaded in the complaint plausibly support Wachovia’s and Harding’s

knowing omission of that control. And, in our view, the inference of corporate scienter

here is “cogent and at least as compelling as” the innocent picture painted by the

district court. Tellabs , 551 U.S. at 324.

In sum, Plaintiffs’ allegations of frau d by Wachovia and Harding regarding the

constellation CDOs satisfy Rules 9(b) and 12( b)(6). As to the role played by SAI,

however, Plaintiffs have pleaded neither a material misrepresentation nor, a fortiori

,

scienter. They must replead bo th elements if they wish to proceed against SAI for fraud

in connection with Sagittarius, the constell ation CDO of which it was the collateral

manager.

Longshore D.

The alleged fraud with respect to Longshore differs in kind and, therefore,

requires separate treatment. The thrust of Pl aintiffs’ claim is that Wachovia used this

non-constellation CDO to dispose of devalued assets on Wachovia’s books, including13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 33 assets from a canceled CDO deal, and that Wach ovia did so by transferring the assets at

their original cost basis, without accounting for their true (sinking) value. Although the

complaint does not allege precisely when the toxic assets were transferred or at

precisely what diminished value, it does a ssert (1) that in transferring these assets,

Wachovia was aware of “impending changes to the ratings methodologies” that would

result in major downgrades to the assets’ va lue, J.A. at 137, and (2) that the Longshore

Offering Memorandum misrepresented that SAI, as the collateral manager, would

“cause any acquisition or sale” of assets “to be conducted on an arm’s length basis” or—

if carried out with SAI or an affiliate—to be done at least “on terms as favorable to

[Longshore] as would be the case” in a transaction between unrelated parties, id . at 136.

The issue is whether these allegations suffi ce to raise a plausible inference of a

material misrepresentation by Wachovia and SAI as well as a strong inference of

scienter. While the question is a close one, we find the complaint sufficient to support

the requisite inferences as to Wachovia. As to SAI, however, the complaint fails to plead

a fraudulent misrepresentation with the part icularity required by Rule 9(b) and, hence,

also fails to allege scienter. Cf. supra Sections I.B.2 & I.C.

1. Wachovia

The SEC itself investigated the underl ying charge of fraud by Wachovia in

connection with the transfer into Longshore of assets from the canceled CDO. In its final

order, the SEC set forth findings that Plaint iffs, in turn, recite in their complaint. See J.A.

138-39. Hence, a threshold question in our de novo review is what weight, if any, to give

the quoted findings, which—as the district court correctly observed—were not admitted13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 34 by Wells Fargo (Wachovia’s successor in inte rest) when it settled the matter with the

SEC. Wells Fargo , 2013 WL 1294668, at *14.

Citing our decision in Lipsky v. Commonwealth United Corp. , 551 F.2d 887 (2d Cir.

1976), Defendants maintain that because the SEC order is inadmissible to prove fraud, 11



### it should likewise be disregarded in decidi ng the sufficiency of the fraud allegations

under Rule 12(b)(6). In response Plaintiffs argue that Lipsky does not categorically bar

courts from considering the content of such orders at the pleading stage, regardless of

their admissibility. And they argue this while no t disputing that the a ssertions of fact in

question, having been neither ad mitted nor denied, represent only allegations of

wrongdoing, with precisely no collateral estoppel effect. See Lipsky , 551 F.2d at 893-94

(“[C]onsent decrees . . . are not true adjudications of the underlying issues

. ”); U.S. S.E.C.

v. Citigroup Global Markets Inc. , 827 F. Supp. 2d 328, 333 (S.D.N.Y. 2011) (“As a matter of

law, an allegation that is neither admitted nor denied is simply that, an allegation.”),

vacated and remanded on other grounds , 752 F.3d 285 (2d Cir. 2014).

Whatever cognizance of secondhand allega tions courts may take at the pleading

stage, it seems to us clear that the portions of the SEC order quoted in the complaint are

in the nature of allegations “upon inform ation and belief,” which cannot ordinarily

11 Although we have consistently held SEC orders like the one at issue here inadmissible to prove the

facts of liability, our cases have not been uniform in explaining this result in terms of the Federal Rules of

Evidence. Compare Lipsky

, 551 F.2d at 893 (stating that such orders, like criminal nolo contendere pleas, are

excluded under Rule 410), with United States v. Gilbert

, 668 F.2d 94, 97 (2d Cir. 1981) (reasoning that

because consent decrees are akin to the settlement of civil claims, their exclusion as proof of liability is

actually governed by Rule 408, which explicitly permits use for other purposes), and Brady v. Wal

‐ Mart

Stores, Inc.

, 531 F.3d 127, 136 (2d Cir. 2008) (“A consent decree may properly be admitted to demonstrate

that a defendant was aware of its legal obligations.”).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 35 form the basis of a fraud claim “except as to matters peculiarly within the opposing

party’s knowledge.” Luce , 802 F.2d at 54 n.1 (citation and internal quotation marks

omitted). Even as to the latter, a fraud plai ntiff must generally state the facts upon

which her belief is founded. Id

.

While a complaint that merely recites others’ allegations may therefore be

insufficient, we are satisfied that in this case Plaintiffs do also allege non-conclusory

facts and that these additional factual plea dings are sufficient to render unproblematic

any implied reliance on the SEC findings. In particular, the complaint asserts that:

(1) Wachovia had been preparing two CDO deals in February 2007, one of

which became Longshore while the other was canceled;

(2) because Wachovia was the warehouse provider for both deals, assets from

the canceled CDO remained on its books;

(3) based on superior insider knowledge, “Wachovia was aware of significant

problems in the []MBS sector,” J.A. at 137;

(4) despite Defendants’ representations that all acquisitions for Longshore

would be carried out in arm’s length- type transactions, the assets from the

canceled CDO deal “were sold to Longshore for $4.6 million over their thencurrent market value,” id . at 137-38; and

(5) this decline in value would otherwise have been borne by Wachovia.

These allegations—albeit clearly overlapping with the SEC order—are made directly by

Plaintiffs, and were signed by Plaintiffs’ coun sel subject to the requirements of Rule 11.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 36 See Fed. R. Civ. P. 11(b)(3). Taken together, they are, in our view, adequate to survive a

motion to dismiss.

Defendants object that the complaint requ ires the court to infer their knowledge

of a decline in the value of the specific a ssets transferred into Longshore from broader

conditions in the market. That inference, however, seems to us reasonable under the

circumstances and, thus, is fair to draw in Plaintiffs’ favor at the Rule 12(b)(6) stage. See

Nielsen , 746 F.3d at 62. This is not a case in wh ich a securities fraud plaintiff alleges a

mere downturn in the market, asking the co urt to infer defendant’s knowledge of the

poor performance of a given company. Plai ntiffs pleaded scienter by asserting that

Wachovia was aware of a high probability that at the time the assets were transferred

into Longshore, the original acquisition cost no longer represented those assets’ fair

market value. The basis for that alleged know ledge is not vague; it is Wachovia’s status

as a major participant in th e MBS market, a participant who was, consequently, aware

of a broad drop in value in the very class of securities to which the transferred assets

belonged.

In sum, while the complaint could be more detailed as to the timeline and

valuation of the securities in question, th ere is enough particularity to withstand

Defendants’ Rule 12(b)(6) motion. Plaintiffs ’ direct allegations (1) that Wachovia knew

the MBS market well, and knew that it was in decline over the “months” in question,

J.A. at 137, and (2) that Wachovia nevertheless transferred assets on its books at their

original cost basis while telling investors th at SAI would ensure that the transactions13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 37 were conducted as if between unrelated parties, suffice to raise a plausible inference of

material misrepresentation by Wachovia as well as a strong inference of scienter.

2. SAI

In contrast to the allegations regardin g Wachovia’s role, Plaintiffs’ claims

regarding SAI’s role are less detailed and fail to satisfy the particularity required by

Rule 9(b). Indeed, although the Longshore sche me differs in kind from the constellation

CDOs scheme, as to SAI, the complaint suffe rs from the same infirmity that we found

earlier when dealing with the constellation CDOs—namely, that Plaintiffs have alleged

neither a fraudulent misr epresentation by SAI nor, a fortiori , scienter on SAI’s part.

In the case of Longshore, the plausibl y fraudulent statement in the offering

documents is that SAI, as the collateral ma nager, would “cause any acquisition or sale”

of assets “to be conducted on an arm’s length basis,” or at least “on terms as favorable

to [Longshore] as would be the case” in a transaction between unrelated parties.” Id . at

136. That statement is clearly attributable to Wachovia, as the author of the offering

documents. But as we noted before in the ca se of the constellation CDOs, the problem

here is that Plaintiffs have not adequately pleaded any such misrepresentation by SAI

.

Cf. supra Section I.B.2. And Plaintiffs’ allegati ons regarding the close relationship

between SAI and Wachovia lack particulars from which it would be reasonable to infer

that SAI itself misled investors about its role in the acquisition of assets by Longshore. 12

12 It is true that SAI bore responsibility for some information contained in certain sections of the

Longshore offering documents. See J.A. at 309, 317

‐ 18, 325

‐ 28. But Plaintiffs identify—and our own

examination reveals—no statement in those sections to the effect that SAI would ensure that all

transactions were conducted as if between unrelated parties.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 38 Absent facts plausibly indicating a mi srepresentation by SAI, the complaint

necessarily lacks allegations giving rise to a strong inference of scienter on SAI’s part.

Cf. supra Section I.C

. Hence, as to SAI, the complaint fails to state a claim in connection

with either the constellation CDOs or Longshore. To proceed against SAI, Plaintiffs

must replead their claim with sufficient p articularity to give rise to the requisite

inferences of misrepresentation and scienter.

II

With respect to all three CDOs, Plaintiffs lost millions of dollars. But that loss

coincided with the recent financial crisis, wh ich affected large swaths of securities in

and beyond the MBS market. For that reason , the question arises whether Defendants’

misstatements met the requirements of lo ss causation as well as of transaction

causation. 13 

### Loss causation was not pleaded in great detail below, but neither was its

absence relied on by the district court in dismissing the complaint. Nevertheless,

Defendants argue on appeal, as they argued be fore the district court, that Plaintiffs’

failure to plead it is fatal to the complaint.

13 Transaction causation is also known as “reliance” in fraud cases. See Halliburton Co. v. Erica P. John

Fund, Inc.

, 134 S. Ct. 2398, 2418 (2014) (“To prove reliance, the plaintiff must show transaction causation,

i.e., that the specific misstatement induced the investor’s decision to engage in the transaction.” (internal

quotation marks omitted)); Dura Pharm., Inc. v. Broudo

, 544 U.S. 336, 341 (2005) (referring to “reliance” as

“transaction causation”); ATSI Commc ʹ ns, Inc. v. Shaar Fund, Ltd.

, 493 F.3d 87, 106 (2d Cir. 2007) (using

two terms interchangeably); Eurycleia Partners

, 12 N.Y.3d at 559 (referring to requirement as “justifiable

reliance”). In the securities fraud context, transaction causation, or reliance, “refers to the causal link

between the defendant’s misconduct and the plaintiff’s decision to buy or sell securities. It is established

simply by showing that, but for the claimed misrepresentations or omissions, the plaintiff would not have

entered into the detrimental securities transaction.” Emergent Capital Inv. Mgmt., LLC v. Stonepath Grp.,

Inc.

, 343 F.3d 189, 197 (2d Cir. 2003) (citations omitted).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 39 At the outset of our review of Plaintiffs ’ pleadings as to loss causation are two

unsettled questions: (1) whether this element must be pleaded (rather than simply

supported by evidence at a later stage) and, if so, (2) with what level of particularity

.

Although loss causation must certainly be plea ded to state a claim for federal securities

fraud, see Lentell v. Merrill Lynch & Co. , 396 F.3d 161, 172 (2d Cir. 2005), our Circuit has

not had occasion to decide whether a plaint iff making an analogous claim under state

common law must likewise plead this element. 14 

### The Private Securities Litigation

Reform Act (“PSLRA”), which codified loss causation as a separate element of federal

securities fraud actions, see 15 U.S.C. § 78u-4(b)(4), draws on—but also departs from—

the common law. See Dura Pharm., Inc. v. Broudo , 544 U.S. 336, 341 (2005) (“[A] private

damages action [for securities fraud under fe deral law] resembles, but is not identical

14 While the substantive elements of common

‐ law fraud that must be proven are a matter of state law,

what must be pleaded and with what level of particularity are governed by Rules 9(b) and 12(b)(6). See

Rules Enabling Act, 28 U.S.C. § 2072; Hanna v. Plumer

, 380 U.S. 460, 472 (1965) (“[T]he constitutional

provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it

congressional power to make rules governing the practice and pleading in those courts.”). We note that

the First Department of New York’s Appellate Division has sometimes required the pleading of loss

causation and held its absence to be grounds for dismissal. See Mosaic Caribe, Ltd. v. AllSettled Grp., Inc.

,

985 N.Y.S.2d 33, 34 (1st Dep’t 2014); Greentech Research LLC v. Wissman

, 961 N.Y.S.2d 406, 407 (1st Dep’t

2013). We also note, however, that in Plaintiffs’ several parallel cases against other defendants in New

York state courts, the First Department has recently found allegations similar to those before us sufficient

to state a claim for fraud, and that it has done so with nary a mention of loss causation. See Loreley Fin.

(Jersey) No. 4 Ltd. v. UBS Ltd.

, 998 N.Y.S.2d 172 (1st Dep’t 2014); Loreley Fin. (Jersey) No. 3 Ltd. v. Citigroup

Global Markets Inc.

, 987 N.Y.S.2d 299 (1st Dep’t 2014); Loreley Fin. (Jersey) No. 28, Ltd. v. Merrill Lynch,

Pierce, Fenner & Smith Inc.

, 985 N.Y.S.2d 499 (1st Dep’t 2014). Finally, we note that the district court

viewed loss causation as an issue typically “reserved for summary judgment,” J.A. at 411, and that

Defendants agreed with this view of the general course of securities fraud litigation, see id. (“It ʹ s usually

not a driver on the motion to dismiss.”). See also Allstate Ins. Co. v. Stanley

, 985 N.Y.S.2d 562, 563 (1st Dep’t

2014) (“Defendants’ argument that the general collapse of the residential mortgage

‐ backed securities

market bars plaintiffs from proving loss causation is not ripe for determination at the pleading stage.”).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 40 to, common-law tort actions for deceit and misrepresentation.”) . It is thus scarcely clear

that pleading is identical in the two contexts.

We recently assumed the existence of a requirement that loss causation be

pleaded in a similar common-law case in which loss causation had, in fact, been

pleaded in considerable detail. See Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC , 783

F.3d 395, 402-05 (2d Cir. 2015). We there left open whether a plaintiff must plead it with

the specificity required by Rule 9(b). Id . at 403. And this second question—as to the level

of particularity —is an open one in our Circuit even in the PSLRA context, where the

obligation to plead loss causation is well settled. See Acticon AG v. China N.E. Petrol.

Holdings Ltd. , 692 F.3d 34, 37-38 (2d Cir. 2012); Wilamowsky v. Take-Two Interactive

Software, Inc. , 818 F. Supp. 2d 744, 753 & n.7 (S.D.N.Y. 2011) (“The question of whether

Rule 9(b) applies to loss causation has not yet been definitively addressed by the Second

Circuit, but the vast majority of courts in th is district have required that loss causation

only meet the notice requirements of Rule 8.”); see also Dura , 544 U.S. at 346 (assuming

that ordinary notice pleading applies).

Since, however, we find the pleadings of loss causation here—while much less

detailed than those in Financial Guaranty —to be sufficient at this preliminary stage

regardless of the applicable pleading stan dard, we need not decide these questions

today. Yet the meaning of loss causation re mains a source of mu ch misunderstanding.

And that perplexity warrants a review of this element before we turn to the specifics of

this case and explain our view that Plainti ffs’ admittedly slim pleadings on the subject

nevertheless are sufficient.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 41 The Nature of Loss Causation A.

Loss causation has long been a requirement in securities and other fraud cases.

See Schlick v. Penn-Dixie Cement Corp. , 507 F.2d 374, 380 (2d Cir. 1974); Bastian v. Petren

Res. Corp. , 892 F.2d 680, 683 (7th Cir. 1990) (Posner, J.) (“Indeed what securities lawyers

call ‘loss causation’ is the standard common law fraud rule, merely borrowed for use in

federal securities fraud cases.” (p arenthetical citation omitted)); Moore v. PaineWebber,

Inc. , 189 F.3d 165, 174 (2d Cir. 1999) (Calabresi, J., concurring) (RICO fraud). What loss

causation is, however, has not always been expressed with great precision and clarity.

Perhaps the best way to describe it is nega tively, by adducing a few examples of its

absence.

Take the classic torts case of Berry v. Sugar Notch Burrough , 191 Pa. 345 (1899), in

which a negligently speeding trolley car is damaged by a falling tree. The

wrongfulness—the speeding—is a but-for caus e of the accident and injury: had the

trolley car not been speeding, it would have been elsewhere when the tree fell. As a

general matter, though, and apart from the chance occurrence in this case, speeding

does not make it likelier that trees will fall on trolley cars. Indeed, speeding arguably

reduces the likelihood of such accidents by reducing the amount of time that one is

under any given tree. But-for cause is present; causal link or tendency is not. (It would,

of course, be different if one could demo nstrate that speeding trolley cars create

vibrations that lead damaged trees to fall with greater frequency. In that case, a causal

relation could be said to exist between the speeding and the injury. See Guido Calabresi,

Concerning Cause and the Law of Torts , 43 U. Chi. L. Rev. 69, 72 (1975).)13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 42 The requirements of transaction and loss causation are exactly analogous to butfor cause and causal tendency in this classi c torts case. Suppose a real estate company

misrepresents that a certain house belo nged to Abraham Lincoln, and a buyer

purchases the house because of this. Suppose the buyer can show that, absent the lie,

she would not have bought the house and would instead have bought a house in

another part of town. Subsequently, a flood destroys her house and others in the

neighborhood, while leaving the “other part of town” unscathed. The loss to her would

not have occurred but for the fraud. And yet, so long as the neighborhood was not more

prone to flooding, 15 

### the lie in no way increased the chances of the actual damage to her

house. Transaction causation is present; loss causation is not. (To be sure, if the buyer

paid a premium for Lincoln’s house, that premium— i.e. , the amount above the fair

market value of the house in light of its true, non -presidential provenance—represents a

separate harm whose causal linkage to the lie is evident. 16 

### )

15 If the neighborhood turns out to be more prone to flooding than surrounding areas, then inducing

people to buy in that neighborhood by lying (whether about Lincoln, the school system, or the drainage

basin) actually increases the flood risk to these homebuyers, even if the liar is oblivious to this increased

risk. As far as loss causation is concerned, the question is whether the fraud creates a risk that

materialized in the ultimate harm to the plaintiff and, if repeated, would create a similar risk to others in

the future. See Zuchowicz v. United States

, 140 F.3d 381, 388 n.7 (2d Cir. 1998) (describing test as whether

wrongful activity “enhanced (at the time the defendant acted) the chances of the harm occurring or

. . . increase[d] the chances of a similar accident in the future if the defendant should repeat the same

wrong”). Where such a risk exists—regardless of whether it is only discovered after the fact—there is a

cost that is properly deemed a cost of the misstatement. Of course, how we wish to allocate that cost is a

separate question, the answer to which depends on a host of factors having to do with what is normally

analyzed under the rubric of “proximate cause.” See infra note 18. For example, even if the neighborhood

is more prone to flooding, we may wish to allocate the cost of flood damage not to all lying brokers who

attract buyers to this neighborhood but only to those who, say, lie about the drainage basin.

16 Relevant parallels can be drawn from the so

‐ called “darting out” cases, in which speeding drivers

hit children who run into the street from behind an object that blocks the driver’s view. First, while the

speeding is a but

‐ for cause— but for the velocity the car would have been elsewhere—causal tendency is13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 43 Some authors have treated loss causation as if it were part of proximate cause,

whereas transaction causation is treated as part of cause-in-fact. See Jill E. Fisch, Cause

for Concern: Causation and Federal Securities Fraud , 94 Iowa L. Rev. 811, 816-17 (2009)

(“Subsequent courts have analogized loss ca usation to proximate or legal cause, while

they analogize transaction causation to ‘but-for’ or factual cause.”); id. at 817 n.23 (citing

examples). 17 

### In truth, proximate cause is separat e, and transaction causation and loss

causation alike, to the extent that they are required in a given case, are each subject to

the further requirement of proximity. Lack of proximity between the wrongful activity

and the transaction will preclude liability, just as liability will not attach if the causal

tendency—the thing that increa ses the chances of the actual occurrence of the harm—is

too remote. In sum, proximity applies to bo th transaction and loss causation, and for

both elements the additional element of pr oximity must be present before liability may

be imposed. It is only because some of the considerations relevant to showing

proximate cause (nature of the risk and ex istence of intervening causes) typically

lacking unless a driver in the same position going only the posted speed limit could have avoided the

collision. See Gulf Oil Corp. v. Reed

, 334 F.2d 960, 963 (D.C. Cir. 1964); Underwood v. Fultz

, 331 P.2d 375, 378

‐

79 (Okla. 1958); 4 Fowler V. Harper, Fleming James, Jr., & Oscar S. Gray, The Law of Torts § 20.5, at 165

‐

66 & n.48 (2d ed. 1986); see id

. at 80 (cumulative supplement 2004). Second, although speeding may have

no bearing on the risk of the accident

, to the extent the child was injured more than would have been the

case had the driver been going more slowly, the unlawful velocity clearly bears on the additional injury.

The risk of greater injury thus represents a cost of speeding that we may, if we so wish, allocate to the

driver in tort.

17 Loss causation has also been described as the conclusion that all the requirements of common

‐ law

causation—but

‐ for cause, causal link, and proximate cause—are present with respect to the loss. See

Moore v. PaineWebber, Inc.

, 189 F.3d 165, 175 (2d Cir. 1999) (Calabresi, J., concurring). We believe it clearer

to analogize loss causation to causal link or tendency, as we have done here, and to analyze it separately

from both but

‐ for and proximate cause.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 44 pertain to loss that courts frequently, albeit unnecessarily, analyze loss causation under

the rubric of proximate cause. 18



### Some writers have also suggested that while the requirement of transaction

causation (but-for cause) may occasionally be waived, as in cases of multiple or

statistical causation, loss causation (causal te ndency) is virtually always required. This

is not so. See Calabresi, supra , at 100-01 & n.49. Both requirements are based, as much of

law is, on policy grounds. There are jurisdictions that choose not to require loss

causation in suits based on fraud. See Jane Stapleton, Benefits of Comparative Tort

Reasoning: Lost in Translation , 1 J. Tort L., no. 3, 2007, at 2 (“[I]n the U.S. it seems to be a

principle that a defendant in the tort of deceit cannot be liable for coincidental

consequences; but that principle is rejected in England.”).

Additionally, in certain areas of the la w, the requirement of loss causation is

eliminated either by contract or by statute. To take a common example from the law of

insurance, a decedent’s estate may be denied payment on her life insurance policy if she

18 The conflation of loss causation with proximate cause appears to result, in many cases, from the

conflation of each, in turn, with foreseeability. But, whereas foreseeability is to some extent relevant to

proximate cause, it is “aftseeability” that matters for loss causation. That is, to return to the Berry case, if

speeding trolley cars can be shown to create vibrations that increase the chance of rotten branches falling,

then causal tendency (loss causation) is present, even though the link may not have been anticipated and

may only have been shown to exist after the fact. Foreseeability, on the other hand, goes partly to how

strong or weak, near or remote, we take the causal connection to be and ultimately, then, to the question

of whether we wish to hold those speeding liable for an increased likelihood of falling branches

damaging passing trolley cars. The unforeseeability of a particular risk, which may indicate the relative

weakness of a causal connection, is among the factors courts consider under “proximate cause,” but a

decision not to impose liability due to lack of proximity does not negate the presence

, in fact, of causal

tendency. It may be that this is what Justice Loevinger meant when—conflating causal tendency with

proximate cause, as was commonly done at the time—he wrote, “It is enough to say that negligence is

tested by foresight but proximate cause is determined by hindsight.” Dellwo v. Pearson

, 259 Minn. 452, 456

(1961).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 45 lied about her health on her appl ication, even if the risk of the specific illness or accident

that killed her was totally unaffe cted by the undisclosed ailment. See Dormer v. Nw. Mut.

Life Ins. Co. , 408 F. App’x 452, 454 (2d Cir. 2011). The occasional “deviation” case that

does not require causal tendency can be expl ained in similar fashion: a carrier is held

liable for the destruction of goods in transit, having shipped them by a route other than

that “specified in the contract or reasonably within the contemplation of the parties,”

even though the destructive event was not made likelier by the choice of route. GreenWheeler Shoe Co. v. Chicago, R.I. & P.R. Co. , 130 Iowa 123 (1906) (applying this approach

to a shipping delay).

The relaxed requirements in suits brough t under the Federal Employers’ Liability

Act bear a family resemblance to these cases, and indeed have been criticized on this

very ground, as a departure from the co mmon-law requirement of causal link. See

Gallick v. Baltimore & Ohio R.R. Co. , 372 U.S. 108, 126-27 (1963) (Stewart & Goldberg, JJ.,

dissenting); CSX Transp., Inc. v. McBride , 131 S. Ct. 2630, 2645 (2011) (Roberts, C.J.,

dissenting) (“The test the Court would substi tute—whether negligence played any part,

even the slightest, in producing the injury—is no limit at all. It is simply ‘but for’

causation.”).

Where does all of this leave us in the pr esent case? In the securities fraud context

in general, an investor may buy shares of a certain stock because her broker falsified—

or neglected to mention—some detail but then suffer a loss due to a nationwide

recession. Loss causation is lacking unless the fraudulent statement that induced her to

invest can also be shown to have made her investment, in fact, more disposed to suffer13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 46 the alleged harm—a catastrophic market co llapse—than honestly described alternative

investments. See Powers v. British Vita, P.L.C. , 57 F.3d 176, 189 (2d Cir. 1995).

Plaintiffs’ Loss Pleadings B.

Here, Plaintiffs clearly allege transaction causation, i.e. , that they would not have

invested in the three CDOs but for Defendants’ misrepresentations. 19 

### They also allege

that the CDOs were all in some way designed to fail and did fail

. Specifically, Plaintiffs

assert that contrary to the picture painte d in the offering documents of purportedly

independent collateral managers selecting hi gh-quality assets for the benefit of long

19 As with loss causation, transaction causation was not discussed by the district court, but

Defendants argue that failure to plead it is similarly fatal here. We do not address this element separately

because (1) Plaintiffs’ pleadings as to transaction causation seem to us plainly adequate on their face, and

(2) the possible defense that any such reliance was unreasonable as a matter of law is premature based

solely on the complaint and incorporated documents.

In general, the reasonableness of a plaintiff’s reliance is a “nettlesome” and “fact

‐ intensive” question,

Schlaifer Nance & Co. v. Estate of Warhol

, 119 F.3d 91, 98 (2d Cir. 1997), which we, like our Circuit’s many

district courts, will not lightly dispose of at the motion

‐ to

‐ dismiss stage. See, e.g.

, Bayerische Landesbank,

New York Branch v. Barclays Capital, Inc.

, 902 F. Supp. 2d 471, 474 (S.D.N.Y. 2012) (“Whether or not reliance

on alleged misrepresentations is reasonable in the context of a particular case is intensely fact

‐ specific and

generally considered inappropriate for determination on a motion to dismiss.” (internal quotation marks

omitted)); Robinson v. Deutsche Bank Tr. Co. Americas

, 572 F. Supp. 2d 319, 322

‐ 23 (S.D.N.Y. 2008) (citing

several cases to the same effect).

Defendants argue, however, that Plaintiffs’ reliance was unreasonable as a matter of law because of

disclaimers in the offering circulars and the fact that Plaintiffs were sophisticated investors. Yet the

offering circulars’ disclaimers are so general that we cannot be confident they bear on the

misrepresentations alleged in the complaint, much less that they render Plaintiffs’ fraud claim

implausible under Rule 12(b)(6). See Caiola v. Citibank, N.A., New York

, 295 F.3d 312, 330 (2d Cir. 2002)

(“[A] valid disclaimer provision must contain explicit disclaimers of the particular representations that

form the basis of the fraud claim.” (internal quotation marks omitted) (emphasis added)); cf. Citigroup

Global Markets

, 987 N.Y.S.2d at 304

‐ 06. Nor is it obvious that ordinary due diligence by sophisticated

investors would uncover the sort of scheme at issue, which is alleged to have involved deliberate

concealment of facts known only to Magnetar and Defendants. Cf. Steinhardt Grp. Inc. v. Citicorp

, 708

N.Y.S.2d 91, 93 (1st Dep’t).

Lack of reasonable reliance may ultimately prove to be a successful defense. It does not, however,

warrant dismissal at the pleading stage in this case.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 47 investors, toxic assets were purposefully chosen for each CDO—in the case of the

constellation CDOs, in order to advance Magn etar’s long-short strategy; in the case of

Longshore, in order to offload these asse ts from Wachovia’s own books. Defendants

contend, however, that the subsequent market crash was of such dramatic proportions

that Plaintiffs’ losses would have occurred at the same time and to the same extent

regardless of the alleged fraud.

If Defendants are right, and the alleged fraud in no way increased the chance of

Plaintiffs’ ultimate losses, then loss causat ion is lacking. Fraud claims under New York

law being an area in which loss causation is required, see Greentech Research LLC v.

Wissman , 961 N.Y.S.2d 406, 407 (1st Dep’t 2013), Plaintiffs must ultimately prove it; that

is, they bear the burden of convincing the find er of facts that this element was present.

But the question at this preliminary stage is whether the pleadings suffice to withstand

Defendants’ Rule 12(b)(6) challeng e. We conclude that they do.

Assuming both that loss causation must be pleaded in fraud actions brought

under state common law, as in federal secu rities fraud actions, and that the two

pleading requirements are similar, we note th at Plaintiffs’ burden is not a heavy one.

See Dura , 544 U.S. at 347. The complaint must simply give Defendants “some

indication” of the actual loss suffered and of a plausible causal link between that loss

and the alleged misrepresentations. Id. ; see Fin. Guar. , 783 F.3d at 404.

What sort of pleading is sufficient will depend on the factual circumstances of

the case. See Lentell , 396 F.3d at 174 (“Loss causation is a fact-based inquiry and the

degree of difficulty in pleading will be affect ed by circumstances. . . .”). In the federal13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 48 securities fraud context, we have held that “when the plaintiff's loss coincides with a

marketwide phenomenon causing comparable losses to other investors,” id. (internal

quotation marks omitted), the plaintiff may be required to plead facts from which it

would be reasonable to infer that the risk s which materialized in her loss were risks

concealed by the fraud rather than risks evident on the face of the investment

disclosures. See id . at 172-78. At the same time, we have observed that where the

question, at bottom, is one of intervenin g events—a consideration properly analyzed

under proximate cause —“the chain of causation is a matter of proof at trial and not to be

decided on a Rule 12(b)(6) motion to dismiss.” Id. at 174 (citation, ellipsis, and internal

quotation marks omitted).

We think it possible to distinguish here three broad types of fraud complaints.

Our list is not meant to exhaust the possibilities but only to illustrate considerations that

a court may deem relevant at different stages of the litigation. To adapt the prior real

estate example, assume three houses are dest royed in an earthquake. The first is the one

already encountered—the house that Lincoln was falsely said to have owned. This

situation is most clearly akin to the tree and speeding trolley car in Berry . The causal

connection, if any exists, is not readily apparent. Hence, in assessing the facial

plausibility of the claim under Rule 12(b)(6 ), a court may be unwilling to permit the

complainant to proceed without additional fa cts from which it would be reasonable to13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 49 infer that the defendant’s wrongful activity in some way increased the likelihood of the

eventual harm. 20



### The second and third types of fraud involve, in contrast, misrepresentations as to

the solidity of the house and thus differ in kind from the first in a way that bears

directly on loss causation in the present case. In the second type of fraud complaint, the

misrepresentation is that the house was well built. In the third—a further variation of

the second—the buyer is told that the house was, in fact, “earthquake proof.” It may

turn out that shoddy and well-built houses alike were destroyed in the earthquake. It

may even be that the earthquake was so vast as to destroy houses that were

“earthquake proof,” as “earthquake proof” is normally defined. Cf. Bastian , 892 F.2d at

685-86 (describing hypothetical loss on invest ment represented by broker to be “riskfree”). In both such situations, however, it is enough at the pleading stage for the

plaintiff to allege the particular misrepresent ation and the destruction of the house in an

earthquake. Cf. Fisch, supra , at 852 n.223 (“Similarly, it is plausible that companies

involved in fraud are especially susceptible to ruinous harm upon the occurrence of

adverse economic events. Indeed, many of the companies that collapsed due to the

bursting of the dot-com bubble—as oppose d to weathering it—were those engaged in

financial accounting manipulations and similar practices.”). It then falls to the

20 However one feels about loss causation, a plaintiff must ultimately prove this element to prevail on

a fraud claim under New York law. See Wissman

, 961 N.Y.S.2d at 407. One may, of course, wish to hold

liars liable regardless of whether the type of lie at issue imposed on the plaintiff an increased risk of the

harm suffered or would impose on similarly situated others such a risk in the future. To do so, however,

would require us to ignore the substantive law of New York and to dispense with one of its common

‐ law

requirements. Cf. supra discussion in Section II.A (giving examples of contractual and statutory contexts

in which loss causation is not required).13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 50 defendant to proffer facts indicating that a well-built house, or even an earthquakeproof one, would have been destroyed in this earthquake.

What we are here describing is the burd en of pleading, which has clearly been

met by a plaintiff’s allegation of a misrep resentation that goes to how well the house

was built, as well as the burden of introducing some counterevidence ( onus procedendi ),

which has shifted to the defendant. Cf. Liriano v. Hobart Corp. , 170 F.3d 264, 272 (2d Cir.

1999) (“This shifting of the onus procedendi has long been established in New York.”).

The essential point for present purposes is th at where a potential causal link is evident,

it is not necessary for the plaintiff to plead loss causation in detail to render her fraud

claim plausible at the motion-to-dismiss stage.

The instant suit lies somewhere between these second and third cases in which

the sufficiency of the loss causation pleadi ngs follows from the nature of the fraud

alleged and the harm suffered. In that way, this case fundamentally differs from the

speeding trolley car and the Lincoln house cases, and the issue of causal link is

consequently distinctly easier. Moreover, as the difference between the second and

third is a matter of degree, or of the relative strength of causal tendency inferable from

the type of fraud and surrounding circumstan ces, that difference will principally be

relevant at later phases of the litigation, e.g. , on a motion for summary judgment, in the

court’s instruction on causation to the jury, or in a post-trial challe nge to the sufficiency

of the evidence.

Here, while Defendants by no means represented the CDOs to be free of risk,

they represented the CDOs to be more th an simply “well built,” and far from what13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 51 Plaintiffs claim the CDOs actually were: de signed to fail. Indeed, according to the

complaint, Defendants hid from investors (1) that Magnetar was actively undermining

the constellation CDOs by selecting margin al collateral to capitalize on eventual

defaults and (2) that Wachovia was dumping into Longshore worsening assets at their

original cost to recoup the losses and pass th e risk to investors. Whether Plaintiffs can

prove these allegations—and whether defendants in turn can proffer evidence that the

CDOs would have collapsed regardless, due to the larger crash in the MBS market—are

evidentiary matters for later phases of this lawsuit. It is sufficient under Rule 12(b)(6)

that the allegations themselves give Defendan ts “some indication” of the risk concealed

by the misrepresentations that plausibly mate rialized in Plaintiffs’ ultimately worthless

multimillion-dollar investment in these CDO notes. Fin. Guar. , 783 F.3d at 404 (“The

purpose of the loss causation element is to require a plaintiff ‘to provide a defendant

with some indication of th e loss and the causal connectio n that the plaintiff has in

mind,’ not to make a conclusive pr oof of that causal link.” (quoting Dura , 544 U.S. at

347)).

While Plaintiffs did not plead that the alleged fraud caused their losses

independently of the larger financial events of 2007 and 2008, they were not required to

do so under our precedents. The requirement, if any, to plead a causal link does not

place on Plaintiffs a further pleading obligatio n to rule out other contributing factors or

alternative causal explanations. See id . (“Nor is [the plaintiff] required to allege that its

losses were caused solely by [the defe ndant’s] misrepresentations . . . .”); King Cnty.,

Wash. v. IKB Deutsche Industriebank AG , 708 F. Supp. 2d 334, 342 (S.D.N.Y. 2010)13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 52 (“Neither Dura nor Lentell . . . imposes on plaintiffs the heavy burden of pleading facts

sufficient to exclude other non-fraud explanations.” (int ernal quotation marks omitted)).

Plaintiffs must only allege enough facts regarding their loss to support the inference

that they “would have been spared all or an ascertainable portion of that loss absent the

fraud.” Lentell , 396 F.3d at 175. 21 

### We are satisfied that Plaintiffs have done so in this

case.

III

Although, for the reasons discussed in Part I, supra , we disagree with several of

the district court’s conclusion s as to the sufficiency of Plaintiffs’ fraud allegations, we

hold—separate and apart from these errors—tha t the district court exceeded the bounds

of its discretion in denying Plaintiffs le ave to amend their complaint. An amended

21 Defendants’ argument to the contrary misreads our decision in Lentell

. See 396 F.3d at 172

‐ 78. The

plaintiffs there invested in internet companies at the height of the dot

‐ com bubble on the strength of

bullish ratings by brokers, and then sued the brokers when the bubble burst and stock prices plummeted.

The complaint, however, lacked any allegations attributing the drop in price either to a subsequent

disclosure correcting the ratings or to a “risk of price volatility” not already apparent on the face of the

market analysis published by the brokers concurrently with their ratings. Id. at 176. To put Lentell in real

estate terms, the brokers were alleged to have misrepresented the house to be “worth buying,” even as a

detailed prospectus given to buyers disclosed a risk of earthquakes. The brokers’ professed, but allegedly

insincere belief in their ratings did not conceal the otherwise manifest risk. In that way, the opinion that

the house is “worth buying” also clearly differs from the misrepresentation that a given house is “well

built” because “worth buying,” at least without additional context, implies no knowledge of facts in

manifest conflict with a risk of earthquake damage. Cf. Omnicare, Inc. v. Laborers Dist. Council Const. Indus.

Pension Fund

, 135 S. Ct. 1318, 1328

‐ 32 (2015).

While, unlike Lentell

, the present fraud action was brought under state common law, our assumption

here and in Financial Guaranty that a plaintiff must give fair notice of the causal link between the alleged

fraud and her injury is in full accord with our holding in Lentell that federal securities complaints lacking

such notice may be dismissed for failure to state a claim. See Lentell

, 396 F.3d at 176 (“[P]laintiffs allege no

loss resulting from the market’s realization that the opinions were false, or that [the defendant] concealed

any risk that could plausibly

. . . have caused plaintiffs’ loss.”). As we noted in Lentell

, questions of

causation are often complex, and where the issue is the chain of causation, that issue is not appropriate

for resolution on a motion to dismiss. Id. at 174. The difficulties of causation do not, however, relieve

fraud plaintiffs of the obligation to satisfy Rule 12(b)(6)’s more general plausibility standard.13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 53 complaint, moreover, may cure the remainin g defects as to SAI that we noted above. See

supra Sections I.B.2, I.C, I.D.2.

In so holding, we hew to the liberal st andard set forth in Rule 15, which states

that “[t]he court should freely give leave [to amend] when justice so requires.” Fed. R.

Civ. P. 15(a)(2). As we have explained, the “permissive standard” of Rule 15 “is

consistent with our strong preference for resolving disputes on the merits.” Williams v.

Citigroup Inc. , 659 F.3d 208, 212-13 (2d Cir. 2011) (per curiam) (internal quotation marks

omitted); see also Foman v. Davis , 371 U.S. 178, 182 (1962) (“If the underlying facts or

circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be

afforded an opportunity to test his claim on the merits.”).

Here, the procedure by which the district court denied leave to amend was

improper. The court required the parties to attend a pre-motion conference and to

exchange, in preparation, letters of no mo re than three pages regarding Defendants’

anticipated motion to dismiss for failure to state a claim. The Federal Rules of Civil

Procedure do not speak to the use of pre-mo tion conferences. Such conferences are not

in themselves problematic, however, and in deed may in many instances efficiently

narrow and/or resolve open issues, obviating th e need for litigants to incur the cost of

more extensive filings. The impropriety occurred not when the district court held the

pre-motion conference but when, in the course of the conference, it presented Plaintiffs

with a Hobson’s choice: agree to cure defici encies not yet fully briefed and decided or

forfeit the opportunity to replead. Without th e benefit of a ruling, many a plaintiff will13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 54 not see the necessity of amendment or be in a position to weigh the practicality and

possible means of curing specific deficiencies.

Our opinion today, of course, leaves un altered the grounds on which denial of

leave to amend has long been held proper, such as undue delay, bad faith, dilatory

motive, and futility—none of which were a basis for the denial here. See Foman , 371 U.S.

at 182; Williams , 659 F.3d at 213-14. No improper purpose is alleged. And while leave

may be denied where amendment would be futile, Williams , 659 F.3d at 214, the

approach taken by the district court was not rooted in futility. Rather, the court treated

Plaintiffs’ decision to stand by the co mplaint after a preview of Defendants’

arguments—in the critical absence of a de finitive ruling—as a forfeiture of the

protections afforded by Rule 15. This was, in our view, premature and inconsistent with

the course of litigation prescribed by the Federal Rules.

Defendants argue on appeal that the deni al of leave was proper because of the

informality of the request, which was raised “i n the alternative” at the end of Plaintiffs’

brief opposing the motion to dismiss. J.A. at 584. Generally, we will not deem a request

for leave to amend insufficient on the basis of form alone. See Porat v. Lincoln Towers

Cmty. Ass’n , 464 F.3d 274, 276 (2d Cir. 2006) (“[A] lack of a formal motion is not a

sufficient ground for a district court to dismiss without leave to amend.” (citing Oliver

Sch., Inc. v. Foley , 930 F.2d 248, 252-53 (2d Cir. 1991)). Denial of leave might be proper

where a plaintiff’s request was inconspicuous and never brought to the court’s

attention, see In re Tamoxifen Citrate Antitrust Litig. , 466 F.3d 187, 220 (2d Cir. 2006),

abrogated on other grounds by F.T.C. v. Actavis, Inc. , 133 S. Ct. 2223 (2013), or where the13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 55 request gives no clue as to “how the complaint’s defects would be cured,” Porat , 464

F.3d at 276. Even in those situations, ho wever, our analysis is directed at other

underlying issues like notice and futility. See Tamoxifen , 466 F.3d at 220. Here, both the

district court and Defendants were aware of Pl aintiffs’ request, and at the time it was

made, as at the time of the pre-motion conf erence, there was no decision yet as to the

precise defects, such that a proposed cure would have been in order as part of the

request to amend. Given the posture of the ca se, Plaintiffs were not obliged to formulate

their request differently. Moreover, since the di strict court based its denial on Plaintiffs’

timing, see Wells Fargo , 2013 WL 1294668, at *16 n.13, we doubt that a more formal

motion for leave to amend would have fared any differently.

The present case combines a complex co mmercial reality with a long, multiprong complaint. In such situations, pleading defects may not only be latent, and easily

missed or misperceived without full briefing and judicial resolution; they may also be

borderline, and hence subject to reasonab le dispute. As discussed in Part I, supra

,

dismissal was partly based on the district court’s determination that Plaintiffs’ fraud

allegations raised neither plausible inferences of material misrepresentations nor strong

inferences of scienter. Id. at *10-15. These determinations entail judgment calls on which

reasonable minds can differ in a not insignificant number of cases. Cf. Iqbal , 556 U.S. at

679 (“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewi ng court to draw on its judicial experience

and common sense.”). The district court’s re jection of Plaintiffs’ position that the

strength-of-inference requirements had been met by the facts set forth in the original13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 56 complaint was, without more, insufficient re ason to bar Plaintiffs from repleading.

Indeed, that our opinion today partially vindic ates Plaintiffs’ position is, we think, some

measure of the potential for reasonable disagreement here.

Yet even were we not persuaded that—at leas t as to some elements—the district

court erred in its dismissal under Rule 12(b)(6), its denial of leave to amend would still,

under the present circumstances, necessitate our remanding the case with instructions

to grant the requested leave. As to SAI, ther e may remain hurdles in pleading fraud that

Plaintiffs cannot clear. By not giving Plainti ffs a chance to replead, however, the district

court not only “violated the liberal spirit of Rule 15,” Williams , 659 F.3d at 214; it also

skirted the key issue of futility. At this stag e, the district court has not identified any

issue as to which (i) the complaint is defi cient and (ii) amendment would be futile.

Neither, on the record before us, do we identify any such issue.

Accordingly, we instruct the district court to grant Plaintiffs leave to amend their

complaint in light of the remaining pleading defects as to SAI identified by our opinion

today. It is too early for us to say whet her amendment will cure these defects. That

question should be addressed to the district court in the first instance. That court denied

Plaintiffs the opportunity to demonstrate that their claims deserve to be decided on the

merits, and Plaintiffs should be given that opportunity now. 22

22 Plaintiffs’ complaint asserts—in addition to fraud—several related claims: rescission of contract,

conspiracy to defraud, aiding and abetting fraud, fraudulent conveyance, and unjust enrichment. The

district court dismissed the rescission, conspiracy, and aiding and abetting claims for “fail[ure] to state an

underlying claim for fraud.” Wells Fargo

, 2013 WL 1294668, at *15. Our opinion today holds, on the

contrary, that Plaintiffs have adequately pleaded fraud except as to SAI. Because the adequacy of the

pleadings as to the claims directly predicated on fraud (rescission of contract, conspiracy to defraud, and

aiding and abetting fraud) was not well briefed on appeal, and because we are already remanding to the13

‐ 1476

‐ cv

Loreley Financing (Jersey) No. 3 v. Wells Fargo Securities, LLC



### 57 CONCLUSION

For the foregoing reasons, we REVERSE so much of the district court’s judgment

as concerns the fraud claim against Wachovia and Harding; we VACATE the judgment

as to the remainder of Plaintiffs’ claims; and we REMAND the case for further

proceedings consistent with this opinion.

district court with instructions to grant Plaintiffs permission to replead the fraud claim as to SAI, we

decline to address whether dismissal was proper on some alternative ground and leave it to the district

court to reassess, in light of our fraud holding, the viability of these claims on the basis of fuller briefing

and an amended complaint.

We note that in parallel suits filed by Plaintiffs in New York state court against other defendants

based on allegations similar to those in the complaint before us, the First Department of the Appellate

Division has uniformly permitted the cases to go forward on the fraud claims, but not on many of the

related causes of action. See UBS Ltd.

, 998 N.Y.S.2d at 173 (“Because plaintiffs are only limited

‐ recourse

creditors, their fraudulent conveyance claim was properly dismissed.”); Citigroup Global Markets

, 987

N.Y.S.2d at 307 (“We find

. . . that the unjust enrichment cause of action should have been dismissed

because the CDO transactions were governed by written agreements.”); Merrill Lynch

, 985 N.Y.S.2d at 504

(same). For much the same reasons given by the First Department, as well as the district court below, see

Wells Fargo

, 2013 WL 1294668, at *15

‐ 16, we find Plaintiffs’ fraudulent conveyance and unjust enrichment

claims to be inadequately pleaded at present. We see no harm, however, in permitting Plaintiffs to

replead these claims as well, and we see much wisdom in having the district court determine in the first

instance—with the benefit of an amended complaint—(1) whether the repleaded claims fail on the same

or other grounds and, if so, (2) whether further amendment would be futile.