NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0488n.06

Filed: June 10, 2005

Nos. 03-2334, 03-2417

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

D.E. & J. LIMITED PARTNERSHIP,

Individually, and on behalf of All Others

Similarly Situated,

Plaintiffs-Appellants,

v.

CHARLES CONAWAY, JEFFREY BOYER,

MARK S. SCHWARTZ, MATTHEW F.

HILZINGER, MARTIN E. WELCH and

PRICEWATERHOUSECOOPERS LLP,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

Before: KENNEDY, DAUGHTREY, and SUTTON, Circuit Judges.

SUTTON, Circuit Judge. On January 22, 2002, Kmart Corporation, one of the most familiar

brands in discount retailing and one of the largest—operating through approximately 1,900 stores

with approximately 234,000 employees—filed for bankruptcy. Kmart’s bankruptcy announcement

was followed by a predictable drop in its stock price, by the restatement of some of its interim

financial reports and by this securities fraud lawsuit.

On February 21, 2002, D.E. & J. Limited Partnership filed this lawsuit on behalf of a class

of Kmart stockholders who purchased their stock from March 13, 2001, to May 15, 2002, against
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several of Kmart’s senior executives and its auditor, PricewaterhouseCoopers (PwC). The district

court dismissed D.E. & J.’s complaint with prejudice for failing to meet the pleading standards of

the Private Securities Litigation Reform Act (PSLRA). As the plaintiffs have failed adequately to

plead “loss causation” under 15 U.S.C. § 78u-4(b)(4) and Dura Pharmaceuticals, Inc. v. Broudo,

125 S. Ct. 1627 (2005), we affirm.

I.

Kmart is a Delaware Corporation. Its principal place of business is Troy, Michigan, where

it was first incorporated as the successor to the business developed by its founder, S.S. Kresge.

In May of 2000, Kmart hired Charles Conaway and gave him a mandate to revitalize the

discount-retail chain. During his tenure as Kmart’s Chairman and Chief Executive Officer from

May 2000 until his resignation in March of 2002, Conaway replaced much of Kmart’s existing

management. Two of the individual defendants in this case were among the officers that Conaway

hired or promoted during this period: Mark Schwartz, who was Kmart’s President and Chief

Operating Officer from March 14, 2001, until November 9, 2001; and Jeffrey Boyer, who was

Kmart’s Chief Financial Officer from May 4, 2001, until November 9, 2001. The other two named

individual defendants were among those officers whom Conaway replaced at the very beginning of

the class period: Matthew Hilzinger, who was Kmart’s Vice President and Controller until July

2001; and Martin Welch, who was Kmart’s Executive Vice President and Chief Financial Officer

until May of 2001.
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In order to compete more effectively with Kmart’s two principal rivals, Wal-Mart Stores and

Target Corporation, Conaway implemented several projects intended to strengthen Kmart’s

inventory controls, customer service and price competitiveness. These initiatives achieved initial

success, with Kmart reporting improved sales and gross margins and an improving inventory

situation. The price of Kmart stock, as a result, rose from $9.19 per share on March 13, 2001, to

$13.16 per share on August 7, 2001, an increase of 43% at a time when the stock market was

generally stagnant or declining.

Kmart’s brief financial success during this period, D.E. & J. alleges, was the result of

accounting fraud. According to D.E. & J., senior executives at Kmart represented that Kmart was

experiencing a financial turnaround while concealing the extent of Kmart’s financial difficulties in

several ways. First, Kmart allegedly tried to mask losses by using interim financial statements that

reported rebates that it hoped to earn from its vendors at the end of the year. By reporting vendor

rebates as a reduction of expenses in interim statements and by basing its interim statements on

aggressive forecasts, Kmart ran the risk that it would not ultimately obtain all of the rebates and that

its interim statements would reflect unrealistically high projections of future sales. Second, Kmart’s

outdated internal control system failed to track and monitor inventory effectively, (1) reporting an

item as “in-stock” even if the company had only one piece of inventory, (2) causing stores to

accumulate obsolete merchandise and (3) ultimately misstating inventory ledgers. Third, Kmart’s

aggressive efforts to obtain discounts and other benefits from its vendors damaged the company’s

long-term relationships with its vendors. Fourth, Kmart’s expansion of its “Bluelight Special”
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discount program to a “Bluelight Always” program failed, because the company’s competitors

responded by cutting their prices as well. JA 0140.

By late 2001, whether as a result of fraud or not, it was clear that Conaway’s initiatives were

not succeeding. In October of 2001, the company disclosed that its sales had been flat during

September, and in November and December the company disclosed a decline in sales.

On January 22, 2002, Kmart filed for bankruptcy. In a press release, the company attributed

its bankruptcy filing to a “combination of factors, including a rapid decline in its liquidity resulting

from Kmart’s below-plan sales and earnings performance in the fourth quarter.” JA 0155. The price

of Kmart’s stock subsequently dropped from $1.74 to $0.70 per share.

On January 25, 2002, Kmart disclosed that it had received an anonymous “whistleblower”

letter expressing serious concerns about the Company’s accounting methods and financial results.

The anonymous author of the letter stated that he or she had “kept copies of transactions [he or she]

consider[ed] to be inaccurate” and “recorded conversations during which distortions and

misstatement[s] of records were discussed.” JA 0128. The letter directly implicated Schwartz and

PwC. See JA 0128 (reporting that Schwartz told a “superior to not be surprised if Kmart shares were

trading at four or five dollars per share by the end of the year”); id. (“Resident auditors from

PricewaterhouseCoopers are hesitant to pursue these issues or even question obvious changes in

revenue and expense patterns.”). Kmart announced that it would conduct an internal investigation

to look into the allegations. Three similar letters followed.
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On February 21, 2002, D.E. & J. brought this securities fraud lawsuit on behalf of purchasers

of Kmart securities between May 17, 2001, and January 22, 2002. The lawsuit initially named only

Conaway as a defendant.

On May 15, 2002, Kmart, in its Form 10-K disclosure for fiscal year 2001, reported a loss

of $2.42 billion for the year. In addition to adjusting for a single vendor transaction in 2001 and

moving a $167 million loss contingency from the fourth quarter to the third quarter (matters not at

issue here), Kmart announced that, due to the bankruptcy and resulting inability to estimate vendor

purchases and associated allowances, it had changed its policy of estimating and recording vendor

allowances on an interim basis. It then restated its financial statements to lower its vendor rebates

for the first three quarters of fiscal year 2001 (which until then had not been audited) by $311, $211

and $32 million respectively. In the disclosure, Kmart attributed its bankruptcy filing to a “rapid

decline in our liquidity resulting from our below-plan sales and earnings performance in the fourth

quarter, the evaporation of the surety bond market and erosion of supplier confidence,” and stated

that “[o]ther factors includ[ing] intense competition in the discount retailing industry, unsuccessful

sales and marketing initiatives, the continuing recession, and recent capital market volatility” played

a role as well. JA 0205. Following this announcement, Kmart’s common stock dropped five cents,

from $1.22 to $1.17 per share.

On June 14, 2002, Kmart announced a $1.45 billion loss during the first fiscal quarter of

2002. The company recorded a charge of $758 million to “write-down inventory in 283 stores that
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were closed in May and June, and inventory transferred from the remaining stores to the closing

stores.” JA 0158.

On August 15, 2002, D.E. & J. filed an amended complaint naming Boyer, Schwartz,

Hilzinger, Welch and PwC as defendants; attaching the whistleblower letters; and expanding the

class period to March 13, 2001, through May 15, 2002, five months longer than the period in the

original complaint. On November 1, 2002, D.E. & J. filed its “corrected consolidated amended

complaint,” declaring that its counsel had conducted interviews with “[f]ormer employees of Kmart,

who worked at the Company during the relevant time” and “[f]ormer employees of certain vendors

of Kmart,” both of whom, the complaint claimed, were “knowledgeable with respect to the matters

referred to herein.” JA 0125–26. Any remaining information, the complaint continued, was “within

the possession and control of defendants and other Kmart insiders, thus preventing plaintiffs from

further detailing defendants’ misconduct at this time.” JA 0126. The complaint reiterated the

expanded class period of March 13, 2001, to May 15, 2002.

On September 19, 2003, the district court dismissed all of the claims with prejudice. In

doing so, it determined that D.E. & J. had failed to meet the PSLRA’s pleading requirements for

scienter and misrepresentation for all defendants except Conaway and Schwartz. The court

dismissed the complaint in its entirety, however, because D.E. & J. had failed to plead the necessary

element of “loss causation” for any of its allegations. Because D.E. & J. had failed to plead primary

violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), by any of the

defendants, the district court also found that it had failed to plead that they were “controlling
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persons” liable under § 20(a) of the Act, 15 U.S.C. § 78t(a). And the district court denied D.E. &

J. leave to amend its complaint, first and foremost because, instead of filing a motion for leave to

amend, it had merely requested in its brief that “if the Court concludes that any aspect of plaintiffs’

claims are inadequately pled . . . [the plaintiffs] be granted leave to replead and cure any

deficiencies.” D. Ct. Op. at 58.

II.

D.E. & J. appeals the dismissal of its § 10(b) claims against all parties save for Boyer,

Hilzinger and Welch and appeals the dismissal of its § 20(a) claims against all parties. We review

the district court’s dismissal of the complaint de novo. Helwig v. Vencor, Inc., 251 F.3d 540, 553

(6th Cir. 2001).

A.

Section 10(b) of the Securities Exchange Act of 1934 forbids (1) the “use or employ[ment]”

of any “deceptive device,” (2) “in connection with the purchase or sale of any security,” and (3) “in

contravention of” Securities and Exchange Commission “rules and regulations.” 15 U.S.C. § 78j(b).

Promulgated under this statute by the Securities and Exchange Commission, Rule 10b-5 forbids the

making of any “untrue statement of material fact” or the omission of any material fact “necessary

in order to make the statements made . . . not misleading.” 17 C.F.R. § 240.10b-5(b).
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On the basis of this statute and this rule, individuals may bring a private damages action

resembling the common-law tort actions for deceit and misrepresentation. See, e.g., Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 744 (1975); Ernst & Ernst v. Hochfelder, 425 U.S.

185, 196 (1976). With the passage of the PSLRA, however, Congress has imposed additional

statutory requirements on this private action, including the heightened pleading requirements that

a plaintiff (1) specify “each statement alleged to have been misleading [and] the reason or reasons

why the statement is misleading” and (2) allege “facts giving rise to a strong inference that the

defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(1)–(2).

Under § 78u-4(b)(4) of the PSLRA, private plaintiffs also must prove that a defendant’s

securities fraud caused their economic loss. In relevant part, the statute says the following:

Loss causation. In any private action arising under this chapter, the plaintiff shall

have the burden of proving that the act or omission of the defendant alleged to

violate this chapter caused the loss for which the plaintiff seeks to recover damages.

15 U.S.C. § 78u-4(b)(4).

Construing this causation provision, Dura Pharmaceuticals v. Broudo recently held that a

plaintiff could not satisfy it merely by alleging (and later establishing) that the price of the security

on the date of the purchase was inflated because of the misrepresentation. 125 S. Ct. at 1631. In

Dura, the plaintiff represented a class of individuals who bought stock in Dura Pharmaceuticals on

the public market between April 15, 1997, and February 24, 1998. See id. at 1629. During that

period, the plaintiffs alleged, Dura (or its officials) made false statements concerning its profits and

the prospects for future approval by the Food and Drug Administration (FDA) of its products. Upon
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disclosure of the news on February 24, 1998, that its earnings would be lower than previously

expected (principally due to slow drug sales), Dura’s shares lost almost half of their value, falling

from $39 per share to about $21 per share. See id. at 1630. In November of 1998, Dura announced

that the FDA would not approve its new product, prompting a further drop in its share price. See

id. The plaintiffs argued that, “[i]n reliance on the integrity of the market, [they] . . . paid artificially

inflated prices for Dura securities and . . . suffered damage[s] thereby.” Id. (quotations and emphasis

omitted).

This type of allegation, the Supreme Court concluded, did not adequately plead loss

causation under the PSLRA. Because a purchaser may sell the “shares quickly before the relevant

truth begins to leak out,” id. at 1631, a seller’s misrepresentation (and its associated inflated price)

does not inevitably lead to a loss, but rather “might mean a later loss,” id. at 1632. Even if the

purchaser later resells those shares at a lower price, “that lower price may reflect, not the earlier

misrepresentation, but changed economic circumstances, changed investor expectations, new

industry-specific or firm-specific facts, conditions, or other events, which taken separately or

together account for some or all of that lower price.” Id. “[A]t the moment the transaction takes

place,” therefore, “the plaintiff has suffered no loss,” id. at 1631, and the most than can be said “is

that the higher purchase price will sometimes play a role in bringing about a future loss,” id. at 1632.

Drawing on this insight and on the observation that securities-fraud actions resemble

common-law fraud actions that have long required a showing that an individual suffered actual

economic loss, the Court held that private securities-fraud plaintiffs may recover damages only when
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they “adequately allege and prove the traditional elements of causation and loss.” Id. at 1633. And

although the Federal Rules of Civil Procedure require only “a short and plain statement of the claim

showing that the pleader is entitled to relief,” see Fed. R. Civ. P. 8(a)(2), the mere allegation that the

plaintiff class purchased their shares at an artificially inflated price did not serve to place the

defendants on “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Id.

at 1634 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Dura complaint (1) failed “to

claim that Dura’s share price fell significantly after the truth became known,” (2) failed to specify

“the relevant economic loss,” and (3) failed to describe “the causal connection . . . between [the] loss

and the misrepresentation.” Id. Without the requirement that a plaintiff “provide a defendant with

some indication of the loss and the causal connection that the plaintiff has in mind,” the Court

concluded, the securities laws would become nothing more than “a partial downside insurance

policy.” Id.

D.E. & J.’s complaint here does not differ in any material respect from Broudo’s. Like

Broudo, D.E. & J. did not plead that the alleged fraud became known to the market on any particular

day, did not estimate the damages that the alleged fraud caused, and did not connect the alleged

fraud with the ultimate disclosure and loss. Rather, the heart of D.E. & J.’s causation theory looks

remarkably like Broudo’s allegations in his complaint:

Plaintiffs and the Class have suffered damages in that, in reliance on the integrity of

the market, they paid artificially inflated prices for Kmart publicly traded securities.

Plaintiffs and the Class would not have purchased Kmart publicly traded securities

at the prices they paid, or at all, if they had been aware that the market prices had

been artificially and falsely inflated by defendants’ misleading statements.
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As a direct and proximate result of defendants’ wrongful conduct, plaintiffs and the

other members of the Class suffered damages in connection with their purchases of

Kmart publicly traded securities during the class period.

JA 0189–90 (emphasis added). The recitation of D.E. & J.’s belief that the “defendants’ wrongful

conduct” “direct[ly] and proximate[ly]” caused the plaintiffs’ losses does not change matters. For

if these allegations would suffice here, the mere inclusion of boilerplate language would suffice

everywhere and would defeat the requirement that a plaintiff explain how the loss occurred.

In D.E. & J.’s view, two other facets of this case distinguish it from the pleading failings that

doomed the complaint in Dura. First, D.E. & J. claims that the complaint’s observation that the

price of Kmart stock dropped from $1.74 per share to $0.70 per share on January 22, 2002,

following the company’s disclosure that it had filed for reorganization under Chapter 11, suffices

to plead that Kmart caused the investors’ losses. See JA 0155. And second, D.E. & J. asserts that

its observation on appeal that “Kmart’s stock did drop more than 4%” on the day that Kmart

announced its restatements (May 15, 2002) suffices to meet the statutory requirement. See D.E. &

J. Br. at 36–37; id. at 28 (“[T]he price of Kmart’s stock did decline after the Company announced

its massive restatement.”).

Neither of these observations (one in the complaint, the other on appeal) “provide[d] the

defendants with notice of what the relevant economic loss might be or of what the causal connection

might be between the loss and the misrepresentation.” Dura, 125 S. Ct. at 1634. As to the

bankruptcy filing, D.E. & J. never alleged that Kmart’s bankruptcy announcement disclosed any

prior misrepresentations to the market. See JA 0155 (observing only that “[a]ccording to [Kmart’s]
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press release, the Company’s decision to seek ‘judicial reorganization’ was based on a ‘combination

of factors, including a rapid decline in its liquidity resulting from Kmart’s below-plan sales and

earnings performance in the fourth quarter’” and that “[f]ollowing this announcement, the price of

Kmart common stock dropped”). And, of course, the filing of a bankruptcy petition by itself does

not a security fraud allegation make. Cf. Lentell v. Merrill Lynch & Co., 396 F.3d 161, 175 n.4 (2d

Cir. 2005) (explaining that defendant Merrill Lynch’s downgrades in its stock

recommendations—from “accumulate” to “neutral” and from “buy” to “accumulate”—did “not

amount to a corrective disclosure . . . because they do not reveal to the market the falsity of the prior

recommendations”). Here, D.E. & J. has done nothing more than note that a stock price dropped

after a bankruptcy announcement, never alleging that the market’s acknowledgment of prior

misrepresentations caused that drop. But the observation that a stock price dropped on a particular

day, whether as a result of a bankruptcy or not, is not the same as an allegation that a defendant’s

fraud caused the loss.

As to the stock price drop following Kmart’s restatements, D.E. & J. never mentioned in its

complaint the five cent drop in Kmart’s stock prices on May 15, 2002, the day Kmart announced its

restatements. By failing even to note that Kmart’s stock dropped in price after the company restated

its financial records and by failing to present this argument to the district court, D.E. & J. simply

never pleaded that the defendants’ alleged misrepresentations caused economic losses on May 15,

2002. Ultimately, as in Dura, D.E. & J. has said “the following (and nothing significantly more than

the following) about economic losses attributable to the . . . misstatement,” 125 S. Ct. at 1630:
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“Plaintiffs and the Class have suffered damages in that, in reliance on the integrity of the market,

they paid artificially inflated prices for Kmart publicly traded securities.” JA 0189. And ultimately,

as in Dura, that pleading does not satisfy the PSLRA’s loss causation requirement.

B.

D.E. & J. also seeks to hold each of the individual defendants liable as “controlling persons”

of Kmart under § 20(a) of the Exchange Act. That provision extends liability to

Every person who, directly or indirectly, controls any person liable under any

provision of this chapter or of any rule or regulation thereunder . . . unless the

controlling person acted in good faith and did not directly induce the act or acts

constituting the violation or cause of action.

15 U.S.C. § 78t(a); see also 17 C.F.R. § 240.12b-2 (defining “control” as “the power to direct or

cause the direction of the management and policies of a [company], whether through the ownership

of voting securities, by contract, or otherwise”).

Because “controlling person” liability is derivative, however, a plaintiff may hold a

defendant liable under this theory only if the defendant controlled an entity that violated the

Securities Act. D.E. & J. has not charged Kmart with a violation of the Securities Act, and

accordingly it may not bring a claim for recovery under this theory. See PR Diamonds, Inc. v.

Chandler, 364 F.3d 671, 696–98 (6th Cir. 2004); In re Comshare Inc. Sec. Litig., 183 F.3d 542, 554

n.11 (6th Cir. 1999); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983). The district court

properly rejected this claim on the pleadings.
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III.

Lastly, we do not believe that the district court abused its discretion in denying D.E. & J. an

opportunity to file what would have amounted to a fourth complaint. See Miller v. Champion

Enters., Inc., 346 F.3d 660, 671 (6th Cir. 2003); Parry v. Mohawk Motors of Michigan, Inc., 236

F.3d 299, 306 (6th Cir. 2000). D.E. & J. did not file a formal motion for leave to amend in this case

and did not submit a proposed amended complaint to the district court, in contravention of local

rules. See E.D. Mich. Local R. 15.1 (“A party who moves to amend a pleading shall attach the

proposed amended pleading to the motion.”). The sole way in which D.E. & J. indicated that it

wished to amend its complaint was by “request[ing], almost as an aside in their brief opposing

Defendants’ motions to dismiss, that ‘if the Court concludes that any aspect of the plaintiffs’ claims

are inadequately pled . . . that they be granted leave to replead and cure any deficiencies identified

by the Court.’” D. Ct. Op. at 58. See JA 0847 (requesting “an opportunity to amend” the complaint

“if the Court deems the claims [ ] insufficiently pleaded”). The district court did not abuse its

discretion in choosing not to credit this statement in a brief as a motion to amend where D.E. & J.

previously had been given two opportunities to amend its complaint. See PR Diamonds, 364 F.3d

at 698–700 (upholding the district court’s denial of leave to amend where the plaintiffs made the

following request in a brief opposing the defendants’ motions to dismiss: “Alternatively, in the event

the Court grants any part of the Defendants’ motions to dismiss, plaintiffs respectfully request leave

to amend their Complaint”); Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir.

2000) (affirming denial of leave to amend because “[w]hat plaintiffs may have stated, almost as an
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aside, to the district court in a memorandum in opposition to the defendant’s motion to dismiss is

[ ] not a motion to amend”); see also id. (plaintiffs cannot expect “an advisory opinion from the

Court informing them of the deficiencies of the complaint and then an opportunity to cure those

deficiencies”) (emphasis omitted); Parry, 236 F.3d at 306 (“[A] party requesting leave to amend

must ‘act with due diligence if it wants to take advantage of the Rule’s liberality.’”) (quotations and

citation omitted).

IV.

For these reasons, we affirm.