NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAUREN MARIE BARBIERO; et al.,
Plaintiffs

- Appellants,

v.
CHARLES SCHWAB INVESTMENT ADVISORY, INC.; THE CHARLES SCHWAB CORPORATION,
Defendants

- Appellees. No. 22

- 15932
D.C. No. 4:21

- cv - 07034

- PJH

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding Submitted June 9, 2023 * * San Francisco, California Before: MILLER and KOH, Circuit Judges, and LYNN, ** * District Judge. Lauren Barbiero and other named plaintiffs appeal the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Barbara M. G. Lynn, United States District Judge for the Northern District of Texas, sitting by designation. 

# FILED

JUN 16 2023
MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 dismissal of their putative class action complaint a gain s t Charles Schwab Investment Advisory, Inc. and Charles Schwab Corporation (collectively, “Schwab”) as precluded by the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”). Reviewing de nov o, see Northstar Fin. Advisors, Inc. v. Schwab
Invs. , 904 F.3d 821, 828 (9th Cir. 2018), we affirm. 1
Plaintiffs’ state law claims involve Schwab ’ s handling of plaintiffs’ assets in their Schwab Intelligent Portfolios (“SIP”) accounts. Plaintiffs contend that by

over - concentrati ng clients’ assets in cash, Schwab imposed an “undeclared fee” and contravened clients’ investment objectives

. Thus , even though misrepresentation is not an element of all of the plaintiffs’ causes of action, the gravamen of the claims is “a deceptive practice actionable under federal securities
law.” Fleming v. Charles Schwab Corp. , 878 F.3d 1146, 1154 (9th Cir. 2017). Plaintiffs argue that any misrepresentations and omissions were not, however, “material to a decision by one or more individuals (other than the fraudster) to buy or sell a ‘ covered security , ’ ” Chadbourne & Park LLP v. Troice , 571 U.S. 377, 387 (2014) (quoting 15 U.S.C. § 78bb(f)(1)(A)) , taking this case out
of SLUSA’s class action bar

. However , plaintiffs allege that the deceptive conduct
here directly affected the “trading strategies” in their SIP accounts, not just their decision to keep those accounts open or their relationship with Schwab. Compare

1 The unopposed motion for judicial notice, Dkt. 10, is GRANTED

.3 Anderson v. Edward D. Jones & Co. , 990 F.3 d 692, 705

– 07 (9th Cir. 2021). 2 The
fact that Schwab , rather than plaintiffs themselves , did the actual buying and selling of securities

— assuming this argument is not forfeited

— is inapposite
because the complaint makes plain that plaintiffs had control o ver Schwab’s decision to buy and sell securities on plaintiffs’ behalf. Compare Banks v. N. Tr

. Corp. , 929 F.3d 1046, 1051

– 55 (9th Cir. 2019) ( holding that SLUSA’s “in connection with” requirement was not satisfied because defendant was not plaintiffs’ agent and plaintiffs “ had no control over how [defendant] invested the trust’s assets”). We thus agree with the district court that SLUSA precludes the plaintiffs’ cl aims. Finally, the district court did not abuse its discretion in declining to grant
leave to amend. It is clear on de novo review that the plaintiffs’ complaint could not be saved by amendment. See Leadsinger, Inc. v. BMG Music Pub l ’g , 512 F.3d 522, 532 ( 9th Cir. 2008). No amendment would change the conclusion that “deceptive statements or conduct form the gravamen or essence of the claim

. ” Freeman Invs., L.P. v. Pac. Life Ins. Co. , 704 F.3d 1110, 111 5 (9th Cir. 2013) ; compare id. at 1116 (finding that “references to

. . . knowing concealment and

2 The amended complaint belies the contention that the claims are just about cash

. Given the options in SIP accounts

— cash allocations and covered securities

— an argument that accounts were over

- concentrated in cash is an argument that covered securities should have been traded differently.4 wrongful conduct” were “irrelevant to” plaintiffs’ breach of contract claims). Thus, we cannot say that the district court abused its discretion.
AFFIRMED.