Overstock.com, Inc. v. Goldman Sachs (2014) · DecisionDepot

Overstock.com, Inc. v. Goldman Sachs

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 25, 2014 No. A135682MPublished

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Holding. The court affirmed summary judgment for three defendants but reversed as to Merrill Lynch Professional Clearing Corp., finding a triable issue of fact regarding whether it acted as a primary actor in manipulative trading under California Corporations Code section 25400(b). The court held that while clearing firms can be liable under this statute, they face liability in private actions only if they engage in conduct beyond aiding and abetting, such that they are a primary actor in the manipulative trading.

Issues

Whether California Corporations Code section 25400(b) reaches firms that execute, clear, and settle trades.
Whether clearing firms can be held liable in a private action for damages for conduct constituting aiding and abetting securities fraud.
Whether there is a triable issue of fact regarding Merrill Lynch Professional Clearing Corp.'s role as a primary actor in manipulative trading.

Disposition. Affirmed in part, reversed in part.

Quotations verified verbatim against the opinion

“we conclude Corporations Code section 25400, subdivision (b), reaches not only beneficial sellers and buyers of stock, but also can reach firms that execute, clear and settle trades.”

“such firms face liability in a private action for damages only if they engage in conduct beyond aiding and abetting securities fraud, such that they are a primary actor in the manipulative trading.”

Filed 11/25/14 Unmodified opinion attached CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

OVERSTOCK.COM, INC. et al., Plaintiffs and Appellants, A135682 v. GOLDMAN SACHS & CO. et al., (San Francisco City & County Super. Ct. No. CGC-07-460147) Defendants and Respondents. ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT1: The opinion filed November 13, 2014, is hereby modified as follows:

1. The disposition is changed to read as follows: The judgment is affirmed as to Goldman, Sachs & Co., Goldman Sachs Execution & Clearing, L.P., and Merrill Lynch, Pierce Fenner & Smith Inc. As to Merrill Lynch Professional Clearing Corp., the judgment is reversed as to plaintiffs’ California securities law claim under sections 25400, subdivision (b) and 25500, and is affirmed in all other respects. The parties are to bear their own costs on appeal. There is no change in judgment.

Dated: _____________________ __________________________ Margulies, Acting P. J.

1 Before Margulies, Acting P. J., Dondero, J. and Banke, J.

Filed 11/13/14 Unmodified opinion CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

OVERSTOCK.COM, INC. et al., Plaintiffs and Appellants, A135682 v. GOLDMAN SACHS & CO. et al., (San Francisco City & County Super. Ct. No. CGC-07-460147) Defendants and Respondents.

I. INTRODUCTION Often, it is the federal courts, applying federal law, that wrestle with claims of cross-state securities fraud involving a nationally-listed stock. Here, plaintiffs of various states allege defendants, securities firms headquartered on the East Coast, violated California and New Jersey law through their involvement in massive naked short selling of Overstock shares. The trial court sustained demurrers to plaintiffs’ New Jersey Racketeer Influence and Corrupt Organizations (RICO) claim without leave to amend and subsequently granted summary judgment on plaintiffs’ California market manipulation claims. We affirm the dismissal of the belatedly raised New Jersey RICO claim. We also affirm the summary judgment as to three of the four defendants, but reverse as to Merrill Lynch Professional Clearing Corporation. The evidence, although slight, raises a triable issue this firm effected a series of transactions in California and did so for the purpose of

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inducing others to trade in the manipulated stock. In reaching this disposition, we conclude Corporations Code section 25400, subdivision (b), reaches not only beneficial sellers and buyers of stock, but also can reach firms that execute, clear and settle trades. However, as we further explain, such firms face liability in a private action for damages only if they engage in conduct beyond aiding and abetting securities fraud, such that they are a primary actor in the manipulative trading. II. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs are Overstock.Com, Inc., an online retailer, and seven of its investors. In their Fourth Amended Complaint, plaintiffs alleged defendants intentionally depressed the price of Overstock stock by effecting “naked short sales”—that is, sales of shares the brokerage houses and their clients never actually owned or borrowed. This practice, and specifically perpetuating the naked short positions by means of exotic trading schemes, allegedly increased the apparent supply of the stock, lead to a “pile on” of further short sales, and thereby decreased the stock’s value—including the value of shares plaintiffs sold. Plaintiffs claimed defendants’ conduct violated Corporations Code sections 25400 and 25500,2 Business and Professions Code sections 17200 and 17500,3 and New Jersey’s RICO statute (N.J. Stat. 2C:41-2(c)–(d)). To put plaintiffs’ allegations and the nature of the evidence proffered during the summary judgment proceedings in context, we start with an overview of how securities transactions unfold, naked short sales, and the Security and Exchange Commission’s (SEC) efforts to prohibit abusive short selling. A. Steps in a Securities Transaction Securities transactions involve a number of steps. These include, among others, executing a trade order, clearing a trade, and settling a trade. (See generally Henry F. Minnerop, Clearing Arrangements (2003) 58 Bus. Law. 917, 919 (Minnerop); 17 C.F.R. § 240.11a2–2(T) (2014).)

Execution is the process of reaching agreement on the terms of a transaction. This includes, for a buyer, not only finding the best price, but also choosing the right seller given the size of the order, the nature of the security being traded, and the costs and fees associated with the trade. (See Newton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc. (3d Cir. 1998) 135 F.3d 266, 270 & fn. 2.) Execution can be accomplished manually or automatically by computer. (See Domestic Securities, Inc. v. S.E.C. (D.C. Cir. 2003) 333 F.3d 239, 243 [in the NASDAQ marketplace, buyers and sellers can automatically execute trades against quoted prices].) Upon execution, “the actual transaction has only begun. Thereafter, several steps must be taken to complete the course of dealing. These steps are typically the responsibility of a clearing agency” associated with a given stock exchange. (Bradford Nat. Clearing Corp. v. Securities and Exchange Commission (D.C. Cir. 1978) 590 F.2d 1085, 1091, fn. 2 (Bradford).) “The clearing agency has three functions. First, the agency ‘compares’ submissions of the seller’s broker with those of the buyer’s to make sure that there is a common understanding of the terms of the trade. Following this process, the resulting ‘compared trade’ is ‘cleared.’ Most simply, this amounts to the clearing agency advising the selling and buying brokers, respectively, of their delivery and payment obligations.” (Ibid.) “The final, ‘settlement,’ stage in the process involves the delivery of securities certificates to the purchasing broker and the payment of money to the selling broker. Modernization of this task has led to storage of most stock certificates in a depository affiliated with the clearing agency. Thus, ‘delivery’ amounts to a bookkeeping entry that removes the security from one account and places it in another.” (Bradford, supra, 590 F.2d at p. 1091, fn. 2; see also Norman S. Poser, The Stock Exchanges of the United States and Europe: Automation, Globalization, and Consolidation (2001) 22 U. Pa. J. Int’l Econ. L. 497, 514.) Some firms, known as clearing firms, specialize in postexecution, “back office” clearing and settling of trades in conjunction with the appropriate clearing agency, in which the clearing firm is a “participant.” Such firms may provide these services to

securities lending department which procures and supplies stock associated with certain transactions, including, as explained below, short sales. In this case, Goldman Brokerage’s execution of certain client trades and its own purchase of certain securities in connection with its securities lending business are primarily at issue. Goldman Sachs Execution & Clearing, L.P. (hereinafter Goldman Clearing) likewise executes, clears, and settles securities transactions. It is an SEC-registered broker-dealer and a member of the National Securities Clearing Corporation. It is headquartered in New Jersey and has significant operations there, and in New York and Chicago. It offers its clearing services to other SEC-registered broker-dealers, hedge funds, and institutions. In this case, Goldman Clearing’s clearing and settlement services are primarily at issue. Merrill Lynch, Pierce Fenner & Smith Inc. (hereinafter Merrill Brokerage), like its Goldman Brokerage counterpart, provides various investment services and runs a stock lending department that borrows and lends securities. This department conducts its borrowing, lending, and related transactional activity in New York and Illinois. As with Goldman Brokerage, it is Merrill Brokerage’s trade execution and lending operations connected to naked short sales that are primarily at issue. Merrill Lynch Professional Clearing Corp. (hereinafter Merrill Clearing), like its Goldman Clearing counterpart, provides various investment services and is an SEC- registered broker-dealer and a member of the National Securities Clearing Corporation. Merrill Clearing is a wholly-owned subsidiary of Merrill Brokerage. It is headquartered in New York and has a substantial presence in New Jersey and Illinois. It also has a San Francisco customer service office. Merrill Clearing offers only limited execution services, and most Merrill Clearing clients execute their own trades. Merrill Clearing uses Merrill Brokerage to procure stocks needed to settle (or close out) a transaction. As with Goldman Clearing, Merrill Clearing’s clearing and settlement operations are primarily at issue here.

C. “Naked” Short Selling In a short sale, the seller sells stock the seller does not own. It is a bet against the stock. In an ordinary short sale, the seller borrows stock from a lender (such as a brokerage firm’s lending department), sells this stock to a buyer at the going price, and then purchases replacement stock—hopefully at a lower price—to return to the lender. Lenders typically charge a borrow fee for lending shares to sell short. The seller profits if the stock price falls enough to cover all costs and fees associated with the sale, including borrowing the stock. Otherwise, if the stock price rises or does not fall enough to cover the costs and fees, the short seller suffers a loss. If the short seller never delivers the stock to the buyer, a “fail to deliver” occurs. The sale nonetheless appears on the seller’s and buyer’s books, and is then termed a “naked” short sale. Stocks that are “hard-to-borrow” (also called “negative rebate” stocks) can command high borrow fees, given their scarcity and desirability for short selling. During the 2005 and 2006 timeframe, Overstock was a particularly hard-to-borrow security, and shares of the company commanded a negative rebate of up to 35 percent of its value on an annualized basis. Thus, any trader hoping to profit from selling short would ordinarily need to recoup the borrow fees through a significant decline in the price of the security. In naked short sales, however, there is no borrowing and thus no borrow fee, and it is significantly easier to make a profit. Short selling, itself, is lawful. (GFL Advantage Fund, Ltd. v. Colkitt (3d Cir. 2001) 272 F.3d 189, 207 (GFL). Even short sales resulting in fails to deliver are not necessarily nefarious and occasionally occur in the regular press of market activity. (Cohen v. Stevanovich (S.D.N.Y. 2010) 722 F.Supp.2d 416, 424–425 (Cohen) [“allegations of failures to deliver, without more, are insufficient to state a claim for market manipulation”].) In Cohen, the alleged naked short selling activity was untethered to any “distort[tion to] the price” of the stock at issue and so did not constitute “ ‘willful conduct designed to deceive or defraud investors’ with regard to market activity.” (Id. at p. 425.) Similarly, in Sullivan & Long, Inc. v. Scattered Corp. (7th Cir. 1995) 47 F.3d 857, 864, the short selling of more shares than could be obtained could not

be viewed as manipulative when, under the peculiar circumstances, the selling drove the stock down to the correct market price, given the terms of a restructuring agreement. But there are situations in which intentional naked short selling can be employed to manipulate the market. (See Cohen, supra, 722 F.Supp.2d at pp. 424–425 [“fails to deliver can occur for a variety of legitimate reasons, and flexibility is necessary in order to ensure an orderly market and to facilitate liquidity,” but some fails may be “a potential problem” when “willfully combined with something more to create a false impression of how market participants value a security”]; Hyperdynamics Corp. v. Southridge Capital Management, LLC (2010) 305 Ga.App. 283, 288, fn. 8 [noting naked short sales could “depress the price of a target company’s shares”]; In re Adler, Coleman Clearing Corp. (S.D.N.Y. 2007) 469 F.Supp.2d 112, 126 [“The Court is persuaded that the evidence sufficiently establishes that DiPrimo’s conduct, under Gurian’s control, amounted to concerted, naked short selling whose purpose was to drive down the price of Hanover House Stocks”]; Regulation SHO Proposed Release, SEC Rel. No. 34–48709, 68 Fed.Reg. 62972, 62975; Amendments to Regulation SHO, 71 Fed. Reg. 41710-01 (Jul. 21, 2006) [“large and persistent fails to deliver . . . can be indicative of manipulative naked short selling, which could be used as a tool to drive down a company's stock price. The perception of such manipulative conduct also may undermine the confidence of investors.”].) Thus, in GFL, supra, 272 F.3d at pages 207–208, the Third Circuit suggested naked short selling would be actionable if it caused an “artificial depression” in price, by, for instance, “injection of inaccurate information” or “creation of a false impression of supply and demand,” such as by means of “ ‘matched buy and sell orders’ to ‘create a misleading appearance of active trading.’ ” D. Regulation SHO: Regulating Abusive Short Sales The SEC began to focus on naked short selling and its potential abuses in 2003 and 2004. (See Charles F. Walker, Colin D. Forbes, SEC Enforcement Actions and Issuer Litigation in the Context of A “Short Attack” (2013) 68 Bus. Law. 687, 691 [relating history of SEC regulation of short sales, particularly through Regulation SHO].) It recognized manipulative short selling could pose problems for the markets and took

“steps to restrict or prohibit it in various situations. See Regulation SHO Proposed Release, SEC Rel. No. 34–48709, 68 Fed.Reg. 62972, 62975–78 (Nov. 6, 2003); Short Sales, SEC Rel. No. 34–50103, 69 Fed.Reg. 48008, 48009 (Aug. 6, 2004); Amendments to Regulation SHO, SEC Rel. No. 34–56212, 72 Fed.Reg. 45544 (Aug. 7, 2007); Emergency Order, SEC Rel. No. 34–58166 (July 15, 2008).” (Pet Quarters, Inc. v. Depository Trust and Clearing Corp. (8th Cir. 2009) 559 F.3d 772, 776, fn. 3.) In its 2003 proposal to regulate, the SEC warned: “Naked short selling can have a number of negative effects on the market, particularly when the fails to deliver persist for an extended period of time and result in a significantly large unfulfilled delivery obligation at the clearing agency where trades are settled. At times, the amount of fails to deliver may be greater than the total public float. In effect the naked short seller unilaterally converts a securities contract (which should settle in three days after the trade date) into an undated futures-type contract, which the buyer might not have agreed to or that would have been priced differently. The seller’s failure to deliver securities may also adversely affect certain rights of the buyer, such as the right to vote. More significantly, naked short sellers enjoy greater leverage than if they were required to borrow securities and deliver within a reasonable time period, and they may use this additional leverage to engage in trading activities that deliberately depress the price of a security.” (Regulation SHO Proposed Release, SEC Rel. No. 34–48709, 68 Fed.Reg. 62972, 62975, fn. omitted.) The following year, in 2004, the SEC adopted Regulation SHO which imposes two requirements—“locate” and “delivery”—aimed at curtailing intentional naked short sales. (Electronic Trading Group, LLC v. Banc of America Securities LLC (2d Cir. 2009) 588 F.3d 128, 135–136 (Electronic Trading), citing 17 C.F.R. § 242.203 (2014).) “The regulation first imposes “a ‘locate’ requirement . . . . See 17 C.F.R. § 242.203(b)(1)(i)– (iii) (‘A broker or dealer may not accept a short sale order in an equity security from another person . . . unless the broker or dealer has: (i) [b]orrowed the security, or entered into a bona-fide arrangement to borrow the security; or (ii) [r]easonable grounds to believe that the security can be borrowed so that it can be delivered on the date delivery

Sales, S.E.C. Release No. 34-50103, available at 2004 WL 1697019, [1], [16], [44].) Overstock, at all relevant times, was a threshold security. E. SEC and Exchange Actions Against Market Maker Clients of Defendants Following the enactment of Regulation SHO, the SEC and several exchanges brought enforcement actions against a number of market participants for violating locate and delivery requirements, including two market maker clients of defendants, Steven Hazan and Scott Arenstein. While Hazan and Arenstein purported to be bona fide market makers, in fact, they were not. Hazan, a New York resident, was sanctioned in an August 2009, SEC order for violating both locate and delivery requirements. (In re the Matter of Hazan Capital Mgmt., LLC, SEC Release No. 60441 (Aug. 5, 2009) available at 2009 WL 2392842.) Among numerous other findings, the Commission found Hazan was not acting as a bona fide market maker and violated Regulation SHO when executing riskless and profitable “reverse conversion” trades and related “reset” trades. In the reverse conversion trades, Hazan would sell short a hard-to-borrow threshold security to a counterparty. He would also buy from that counterparty a call option in the security and sell to that counterparty a put option in the security, such that he would eliminate all market risk associated with the short sale. Because all three components of the reverse conversion were priced interdependently, Hazan was assured an “agreed-upon” profit. Meanwhile, the counterparty—for instance, a brokerage firm such as Goldman Brokerage or Merrill Brokerage—was willing to pay this price to Hazan to “obtain” on its books shares of the hard-to-borrow threshold security, which it could lend for a profit until the put and call options expired. “Consequently” explained the SEC, “prime brokers created the demand for the reverse conversion to create inventory for stock loans on hard to borrow securities and options market makers like [Hazan] fed this demand.” Hazan employed additional nefarious trading practices to insure the short sale portions of the reverse conversions remained “naked” over time. Specifically, when alerted by clearing firms of his Regulation SHO obligation to deliver shares so settlement

could occur, Hazan engaged in “sham reset transactions” that only gave the appearance of delivery, while actually perpetuating his undelivered short positions. Hazan would “obtain” the necessary shares for delivery by buying from another market maker who was also selling short and who similarly never intended to deliver shares to Hazan. Meanwhile, Hazan would “pair” or hedge his new “purchase” with option trades, creating what the SEC called “married puts” or “buy-writes,” sometimes using “FLEX options.” Even though Hazan’s clearing firm—a firm such as Goldman Clearing or Merrill Clearing—would not receive actual delivery of the shares, it nevertheless would record the transactions as generating a “close out” and a new long position. There was also an appearance of delivery of the “purchased” shares back to the other market maker (who had never delivered them in the first place). In the end, Hazan would reestablish his previous short position, still naked, while succeeding in having the Regulation SHO thirteen-day delivery clock, in the clearing firms’ eyes, “reset” to day one. As settlement dates approached again and again, Hazan would repeat this process until the options on the original reverse conversion trade “expired or [were] assigned, thus” finally “closing out the short position and eliminating the synthetic long position that the short position had hedged.” Hazan pocketed over $3 million through his trading strategy. The SEC ordered him to disgorge it, enjoined him from further violations of Regulation SHO, censured his organization and barred him from association with any broker or dealer, with the right to re-apply for association after five years. The New York Stock Exchange (NYSE) issued a similar order regarding the same conduct. (Hearing Board Decisions NYSE AMEX LLC 09-AMEX-21 and 09-AMEX-22 (Aug. 4, 2009); NYSE ARCA, Inc. 09-ARCA-5 and 09-ARCA-6 (Aug. 4, 2009).) NYSE Amex and NYSE Arca imposed $500,000 in penalties, and barred Hazan from membership and association with any member for seven years. Arenstein was sanctioned in a June 2007 order issued by the American Stock Exchange (ASE). (In the Matter of Scott H. Arenstein (Jul. 20, 2007, AMEX case No. 07-71.) He admitted engaging in the same reverse conversions and sham reset

transactions as Hazan and made at least $1.4 million from his unlawful trades. The ASE ordered disgorgement, assessed a $3.6 million fine, and barred him from membership and associating with any member for five years. In 2011, Keystone, another purported market maker and a Goldman Clearing client, was sanctioned by the NASDAQ for engaging in the same kind of sham reset transactions. “[O]n the very same day [Keystone would be] ‘bought-in’ by Keystone’s clearing firm,” Keystone, on over fifty occasions would “negate[] the clearing firm’s buy- in and contradict[] guidance provided by the Securities and Exchange commission requiring that [it] be a net purchaser of the open fail position in the security by selling near equivalent number of shares.” Keystone was required to disgorge $2 million in profits, pay a $500,000 fine, and suffer a censure and “three-month suspension in a supervisory capacity.” (John C. Pickford, Enforcement Counsel, NASDAQ OMX PHLX, notice of Disciplinary Action Against Keystone Trading Partners to Members, Member Organizations, Participants and Participant Organizations re FINRA Matter No. 2010022926 and Enforcement No. 2011-04, Jul. 7, 2011.) In short, there is no question Hazan, Arenstein and Keystone, purported market maker clients of defendants, engaged in abusive naked short selling and flagrant violations of the federal securities laws. The SEC has continued to target abusive naked short selling, recently pursuing not only traders, but the firms that enabled their manipulative trading. The SEC pulled no punches in this regard in In the Matter of OptionsXpress, Inc. et al., in which it ruled the brokerage firm violated Regulation SHO in connection with sham reset transactions, similar to those just discussed, designed to avoid delivery: “Because [the firm] knew . . . shares that were the subject of [a] buy were shares for [it’s client’s] account that were the subject of simultaneous deep-in-the-money calls, which would be exercised and assigned so that no shares were delivered to [the clearing agency], optionsXpress engaged in a sham close-out of its fail to deliver position. . . . [¶] . . . OptionsXpress did not close out its . . . fail to deliver positions by executing consecutive buy-write transactions and willfully violated Rules 204 and 204T. [¶] . . . [¶] . . . Feldman [the client] did not

Defendants, though wary of the new complaint, ultimately chose to acquiesce in its filing and entered into a stipulation with plaintiffs, which became an order of the trial court in January 2011. In the stipulation, the parties recited their conflicting positions on the motion for leave to amend (defendants believed the Fourth Amended Complaint was defective and prejudicial, while plaintiffs did not) and noted the court’s “tentative inclination,” expressed at a case management conference, “to address any issues of prejudice . . . by continuing the trial date.” The stipulation also expressly stated defendants were “not waiving, and expressly reserve[d], all rights to file in response to the Fourth Amended Complaint any and all pleadings, motions, and other responses on any grounds available under law or equity.” The complaint was deemed filed, and the trial date was continued for approximately three months, to December 5. As advertised, and as pertinent here, plaintiffs’ Fourth Amended Complaint re- alleged violations of sections 25400 and 25500 and additionally alleged a violation of New Jersey’s RICO statute (N.J. Stat. 2C:41-2(c)–(d)). Defendants demurred to the New Jersey RICO claim, arguing California law, not New Jersey law, should apply and, in any case, plaintiffs failed to state a claim under the New Jersey law. They did not ask the trial court to dismiss the new complaint based on prejudicial delay, but sought denial of further leave to amend on that ground. Ruling from the bench on May 10, the trial court concluded the allegations about conduct in New Jersey were vague and conclusory, did not disclose whether actionable trade or commerce occurred in that state, and thus failed to state a claim. The trial court also found such lack of detail in the pleadings so close to trial “pernicious to defendants.” However, rather than denying leave to amend outright, it allowed plaintiffs to submit a proposed Fifth Amended Complaint, stating it would consider granting leave based on the contents of the proposed pleading. Plaintiffs promptly submitted a proposed amended complaint with over 50 pages of additional allegations in support of their New Jersey RICO claim. After extensive briefing and a lengthy hearing, the trial court, on August 1, 2011, denied leave to file the proposed Fifth Amended Complaint. It cited two grounds:

(1) granting leave to add the new RICO claim would prejudice defendants on the eve of trial; and (2) the RICO claim “would be futile because the facts as alleged . . . do not warrant the application of New Jersey RICO [law] to this case under California choice- of-law principles.” 2. Summary Judgment on the Corporations Code and UCL Claims Two weeks later, on August 19, 2011, the defendants moved for summary judgment on the remaining causes of action, including those based on California’s securities laws. Defendants advanced several arguments as to plaintiffs’ state-law securities claims: (1) no actionable conduct occurred in California, (2) defendants did not “effect” any stock transactions, (3) defendants’ conduct was not manipulative, (4) defendants did not act for the purpose of “inducing” others to trade in a manipulated stock, (5) defendants’ conduct did not cause any decline in Overstock’s share price and thus did not result in injury to plaintiffs, and (6) federal securities laws and regulations preempted the state-law claims. We do not discuss the parties’ extensive evidentiary showing here, but do so in the next section in discussing the merits of the motions. The trial court heard three days of argument on evidentiary objections to the documents filed in connection with the summary judgment motions and a full day of argument on the merits. In an order dated January 10, 2012, the court granted the motions. As to the state-law securities claims relevant here, the court ruled plaintiffs “failed to raise [any] triable issue of material fact supportive of finding that any act by any defendant foundational to liability, causation, or damages occurred in California.” The court declined to reach any of the other grounds for judgment defendants had urged. It issued a final, comprehensive order on April 11 and entered judgment the following day. III. DISCUSSION On appeal, plaintiffs seek reversal of the dismissal of their New Jersey RICO claim and reversal of the summary judgment on their California Corporate Securities Law claims.

1. Demurrer to Fourth Amended Complaint Given how events unfolded, we first address whether the Fourth Amended Complaint, standing alone, adequately stated a New Jersey RICO claim. The trial court gave several reasons for concluding the pleading was lacking: Plaintiffs did not adequately allege trade or commerce in New Jersey, or conduct affecting trade or commerce in New Jersey. The allegations of conduct by alleged “enterprises” were vague and conclusory. Plaintiffs identified some, but not all, of the conspiring market makers. The conspiracy allegations were vague and conclusory. Lack of specificity, alone, was sufficient reason to sustain the demurrers. In New Jersey, it is “unlawful for any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” (N.J. Stat. Ann. § 2C:41-2(c).) To be liable, a defendant must have been “employed by or associated with a racketeering enterprise which engaged in trade or commerce in New Jersey or affected trade or commerce in New Jersey.” (State v. Casilla (2003) 362 N.J.Super. 554, 565.) As pertinent, “ ‘[r]acketeering activity’ means . . . any of the following crimes which are crimes under the laws of New Jersey or are equivalent crimes under the laws of any other jurisdiction: [¶] . . . [¶] (p) fraud in the offering, sale or purchase of securities.” (N.J. Stat. Ann. § 2C:41-1(a)(1)(p), italics added.) Thus, plaintiffs’ New Jersey RICO claim was predicated on fraudulent conduct. Claims under another state’s substantive law, if raised in a California forum, are subject to California’s procedures for judicial administration, including its pleading standards. (See Hambrecht & Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1542, fn. 8; Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1229, fn. 6 [state pleading law applies to federal RICO claim, so long as it does not impose undue barriers to bringing federal claim in state court].)

demurrer thereto has been sustained. “His leave to amend afterward is always of grace, not of right.” ’ ”]; Whitson v. City of Long Beach (1962) 200 Cal.App.2d 486, 504 [same].). It has long been recognized a court can take into account the number of amendments already allowed. (See Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 446 [“there is a limit to which the patience of the trial court may be extended in the matter of allowing repeated attempts to amend a faulty pleading”].) And at least one case considering leave to amend following a demurrer explicitly recognized the relevance of prejudice: “California courts have ‘a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.’ ” (Douglas v. Superior Court, supra, 215 Cal.App.3d at p. 158, italics added.) In Kirwan, the Supreme Court addressed only the plaintiff’s many contentions he could amend to state a viable claim. No countervailing considerations, such as timing and prejudice, were raised, and the court had no occasion to, nor did it, consider any such matters. (Kirwan, supra, 39 Cal.3d at pp. 318–331.) Furthermore, countless cases involving motions for leave to amend outside of the demurrer context—motions that similarly implicate a trial court’s discretion (Code Civ. Proc., § 473, subd. (a))—routinely analyze prejudice. (E.g., Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486–488 [“It is apparent that adding the new cause of action would have changed the tenor and complexity of the complaint from its original focus on representations and demands made to Magpali by his superiors to an exploration of Farmers’ activities and practices in the entire Southern California area.”]; Estate of Murphy (1978) 82 Cal.App.3d 304, 311 [“Where inexcusable delay and probable prejudice to the opposing party is indicated, the trial court’s exercise of discretion in denying a proposed amendment should not be disturbed.”].) In this case, the trial court was not considering pleadings filed at or near the outset of the litigation, the usual context in which a demurrer is interposed and where prejudice is not an issue. Rather, here, the court was dealing with a context equivalent to a motion

for leave to amend, namely a request to file an amended pleading very late in the litigation. Indeed, the court expressed serious concern about prejudice at the time plaintiffs sought leave to file their Fourth Amended Complaint adding their new RICO claim. And on discerning the full magnitude of the claim proffered in the Fifth Amended Complaint, the court concluded it was not just “another theory” as they had represented in connection with their Fourth Amended Complaint. Rather, it was a fundamentally different and highly complex claim that could not fairly be injected into the case only two months before summary judgment motions were due and only six months before the already re-scheduled trial date. Under these circumstances, the court did not abuse its discretion in denying leave to amend. Contrary to plaintiffs’ protestations, it is neither accurate nor fair to say the proposed Fifth Amended Complaint simply fleshed out the general allegations of the Fourth Amended Complaint and raised no specter of complexity not already apparent in that latter pleading. While the Fourth Amended Complaint focused on an alleged conspiracy between defendants, Hazan and Arenstein, and other unnamed “traders and market makers,” the Fifth Amended Complaint added allegations about several newly- named market makers. While the Fourth Amended Complaint alleged five criminal enterprises, the proposed Fifth Amended complaint alleged ten. Although the Fourth Amended Complaint and proposed Fifth Amended Complaint both alleged a conspiracy to violate New Jersey’s RICO statute, the Fourth Amended Complaint only conclusorily pleaded each “defendant conspired,” while the proposed Fifth Amended Complaint, for the first time, alleged which defendants allegedly conspired with which market makers. And not only did the proposed Fifth Amended Complaint allege various iterations of conspiracies to violate New Jersey’s RICO statute between the defendants and Hazan and Arenstein, it also alleged conspiracies between the newly-named market makers and defendants. In addition, the proposed Fifth Amended Complaint made manifest the New Jersey RICO claim was based on “conspiracy and indirect liability.” While secondary conspiracy liability is a feature of a New Jersey RICO claim (N.J. Stats. 2C:41-2(d); State

series of transactions in a particular security would necessarily create either actual or apparent trading or raise or depress the price of the security to some extent, ” the “crucial question” is “intent.” (1 Marsh & Volk, supra, § 14.05[2][d]; California Amplifier, supra, 94 Cal.App.4th at pp. 110–111 [as “Marsh & Volk emphasizes,” liability under section 25400 “extends to everyone whose market trades are affected by the market manipulation”; “ ‘[i]n view of this potentially enormous and virtually unlimited liability,’ ” intention is “ ‘a necessary qualification of the defendant’s liability’ ”].) Before examining the evidence presented in connection with the summary judgment motions as to the two brokerage firms and two clearing firms, we discuss two legal issues that are pivotal to the significance of the evidence. The first is the meaning of the term “[t]o effect” a series of transactions in a security. (§ 25400, subd. (b), emphasis added.) The second is the distinction between liability as a principal, and aider and abettor liability. (See California Amplifier, supra, 94 Cal.App.4th at p. 113 [a private civil action under sections 25400 and 25500 does not reach aiders and abettors].) 2. “Effecting” a Trade Under Section 25400 Is Not Limited to Beneficial Sellers and Buyers Defendants contend section 25400, subdivision (b), reaches only the beneficial sellers and buyers of manipulated securities and does not reach entities that execute, clear and settle trades for clients. Thus, according to the defendant clearing firms, for example, no section 25400, subdivision (b), claim can lie against them as a matter of law. Rather, any claim under this subdivision would have to be advanced against their former trader clients, such as Hazan and Arenstein, in whose name the manipulative trades were made and who have been punished by the SEC and major exchanges. Subdivision (b) could have been drafted to apply only to beneficial sellers and buyers. But it was not. Rather, this subdivision applies to “any person, directly or

Kamen does not hold, contrary to what defendants maintain, that “effecting” a transaction refers only to beneficial sellers and buyers. Indeed, the case does not even consider the meaning of the term “effect” in subdivision (b). The complaint in Kamen “purport[ed] to state a cause of action under section 25400, subdivision (d).” (Kamen, supra, 94 Cal.App.4th at p. 202, italics added.) That subdivision, in contrast to subdivision (b), prohibits a “a broker-dealer or other person selling or offering for sale or purchasing or offering to purchase” a security from making any “false or misleading” statement “for the purpose of inducing the purchase or sale of such security by others.” (§ 25400, subd. (d).) While the defendants in Kamen, a corporate officer and an accounting firm, were accused of making false statements about the company’s performance, neither sold or offered for sale any of the company’s shares. (Kamen, supra, 94 Cal.App.4th at p. 200.) Thus, neither was liable under the plain language of subdivision (d), which is strikingly different from the language of subdivision (b). (Kamen, at p. 206.) Defendants also point out the authors of Marsh & Volk were heavily involved in the drafting of the state securities laws, and their treatise states section 25400 generally reaches only those “engaged in market activity.” (Marsh & Volk, supra, § 14.05[4], p. 14-66.) The treatise then continues, “[s]ubdivision (a), dealing with matched orders, and subdivision (b), dealing with liability for a series of transactions manipulating the price of a security, by their very nature require that the defendant be a purchaser or seller, since the conduct prohibited is associated with a market transaction.” (Ibid.) We have no disagreement with Marsh & Volk’s general observation, as one can “engage in market activity” by executing, clearing and settling trades. However, for all the reasons we have discussed, we conclude Marsh & Volk’s second statement is unsupported and incorrect. In fact, the treatise provides no analysis on this point, let alone any discussion of either the statutory language or the like provisions of Section 9 of the SEA on which Corporations Code section 24500 was based. (See Diamond, supra, 19 Cal.4th at p. 1055 [the Marsh & Volk treatise cannot be invoked in favor of a statutory interpretation contrary to a statute’s plain language].)

affected the worth of mutual fund shares. Thus, they are the functional equivalent in the mutual fund industry of sham transactions that artificially affect market prices in more conventional contexts. [Citation.] Moreover, these alleged acts of deception, when considered with other allegations concerning the extent of Bank of America’s and Bear Stearns’ activities on behalf of late traders and high-volume market timers, imply that Bank of America and Bear Stearns did not merely assist in facilitating late trades and market timed transactions. Rather, it is reasonably inferable that they participated in initiating, instigating, and orchestrating the scheme. If discovery demonstrates this to be so, Bank of America and Bear Stearns face primary liability under Central Bank.” (Ibid.) In contrast, clearing firms were absolved of liability in Fezzani v. Bear, Stearns & Co., Inc. (S.D.N.Y. 2004) 384 F.Supp.2d 618. The plaintiffs in that case alleged, much as in Blech, that Bear Stearns engaged in market manipulation under section 10(b) because it knew of a client’s, Baron’s, activities aimed at inflating stock prices and “provided financial support to Baron, and directed Baron at times to sell the manipulated securities to the public.” (Id. at pp. 628–629.) But in Fezzani, the allegations “d[id] not cross the threshold laid out in Blech III.” (Id. at p. 642.) “All the complaint alleges” is Bear Stearns “knew of Baron’s fraud and cleared the transactions that were fraudulently made”; there was no allegation Bear Stearns “contrived and agreed to fund” a manipulative scheme as in Blech. (Fezzani, at p. 642.) Scone Investments, L.P. v. American Third Market Corp. (S.D.N.Y., Apr. 28, 1998, No. 97 Civ. 3802 (SAS)) 1998 WL 205338, [1], [7]–[8], also distinguished the Blech cases. In Scone, a bank was “alleged to have directed that . . . securities be sold, not that the sale be effectuated by way of fraudulent misrepresentation. The Bank’s liquidation demand is a far cry from the ‘intimate’ ‘hands-on involvement’ and participation in ‘key decisions’ about the details of the sale which would render it a primary violator.” (Scone, at pp. [8]–[9]; see Abrams, supra, 67 Brook. L. Rev. at p. 504.) The Second Circuit recently addressed the “normal clearing services” standard in Levitt v. J.P. Morgan Securities, Inc. (2d Cir. 2013) 710 F.3d 454, 458–459, 466–468 (Levitt), in reversing a class certification order. The circuit court concluded Bear Stearns

had no duty to disclose a known fraud to the plaintiffs, clients of an introducing firm, Sterling Foster, which had a clearing agreement with Bear Stearns making Sterling Foster responsible for monitoring its customers. The plaintiffs maintained Bear Stearns knew of Sterling Foster’s plan to manipulate the market for a soon-to-be-publicly-offered stock, ML Direct, by misusing insider shares supposedly subject to a lock-up agreement. They further alleged Bear Sterns nonetheless agreed to clear transactions in these shares, extended Sterling Foster unsecured credit, failed to cancel trades as required by an SEC regulation (Regulation T), and failed to disclose to purchasers Sterling Foster’s 400 percent profit in the underwriting. (Id. at pp. 462–465.) Levitt observed courts have grouped clearing firm activity into two categories: “First, in cases where a clearing broker was simply providing normal clearing services, district courts have declined to ‘impose . . . liability on the clearing broker for the transgressions of the introducing broker.’ [Citations.] The district courts have so held even if the clearing broker was alleged to have known that the introducing broker was committing fraud, [citation]; even if the clearing broker was alleged to have been clearing sham trades for the introducing broker, In re Blech, 961 F.Supp. at 584; and even if the clearing broker was alleged to have failed to enforce margin requirements against the introducing broker—thereby allowing the introducing broker’s fraud to continue—in violation of Federal Reserve and NYSE rules, [citation].” (Levitt, supra, 710 F.3d at p. 466.) “In the second, much more limited category of cases, district courts have found plaintiffs’ allegations to be adequate—and so have permitted claims to proceed—where a clearing broker is alleged effectively to have shed its role as clearing broker and assumed direct control of the introducing firm’s operations and its manipulative scheme. . . . . Thus in Berwecky v. Bear, Stearns & Co., 197 F.R.D. 65 (S.D.N.Y.2000), the district court granted class certification in a suit brought by investors against clearing broker Bear Stearns for its role in the introducing firm . . . scheme to defraud investors. The Berwecky plaintiffs alleged that Bear Stearns ‘asserted control over [the introducing firm’s] trading operations by, inter alia, placing Bear, Stearns’ employees at Baron’s

offices to observe Baron’s trading activities, approving or declining to execute certain trades, imposing restrictions on Baron’s inventory, and loaning funds to Baron.’ . . . [¶] Similarly, the district court in Blech [II], 961 F.Supp. 569, found that the ‘[c]omplaint crosse[d] the line dividing secondary liability from primary liability when it claim[ed] that Bear Stearns [the clearing broker] “directed” or “contrived” certain allegedly fraudulent trades.’ ” (Levitt, supra, 710 F.3d at pp. 466–467.) Applying this dichotomy to the facts before it, Levitt concluded Bear Stearns did not have a duty to disclose Sterling Foster’s fraud because plaintiffs “failed to allege sufficiently direct involvement.” (Levitt, supra, 710 F.3d at p. 468.) “Certainly plaintiffs here do not allege that Bear Stearns, beyond merely acquiescing in the ML Direct scheme, went so far as to control and implement that scheme in the manner alleged, for example, in Berwecky.” (Ibid.) That “Bear Stearns allowed . . .’ . . . putatively sham or manipulative trades” was not “comparable to directing or instigating such trades.” (Id. at p. 469.) Thus, the threshold for primary liability on the part of clearing firms is high. They do not incur such liability when they provide “normal clearing services”—and that is so even when a firm knows the trader is committing fraud or knows it is clearing and settling sham trades. Rather, to qualify as a primary violator a clearing firm must “shed its role as clearing broker” and engage in conduct akin to “directing” the client’s manipulative trading, or “deciding with” the client how to engage in the unlawful trading, or intentionally providing a specialized tool for the client to engage in unlawful trading, or “initiating, instigating, and orchestrating” the client’s unlawful scheme,” or having “intimate” “hands-on involvement” and participating in “key decisions” about the “details” of the client’s unlawful trading, or assuming “direct control of” the client’s “operations and its manipulative scheme.” 4. The Summary Judgment Evidence a. Goldman Brokerage Goldman Brokerage was, itself, a purchaser of reversion conversions, and plaintiff’s expert, J. Marc Allaire, based on his review of Goldman documents, averred

c. Goldman Clearing Goldman Clearing did not have a clearing office in California, and there is no evidence this clearing firm did anything, in California or otherwise, beyond normal clearing activity. There is no evidence Goldman Clearing directed, developed, or instigated—as opposed to acquiesced in—any strategy for repeatedly failing short sales, shirking delivery obligations, or clearing sham reset transactions. (See California Amplifier, supra, 94 Cal.App.4th at p. 113 [no aiding and abetting liability]; compare In re Mutual Funds Inv. Litigation, supra, 384 F.Supp.2d at p. 862, italics added [“reasonably inferable that they participated in initiating, instigating, and orchestrating the scheme”].) At best, there is evidence suggesting the firm was clearing purported market makers’ sham reset transactions, was aware short interest in Overstock was high, “noticed fails going up rather dramatically . . . at [Goldman Clearing],” and generally monitored client short sales in Overstock and gave clients notice of their regulatory obligations to “buy-in.” However, there is no evidence raising a triable issue the firm “shed its role as clearing broker and assumed direct control” of the scheme to evade federal securities laws. (Levitt, supra, 710 F.3d at pp. 466–467.) Indeed, the evidence pertaining to Goldman Clearing does not come close to that pertaining to Merrill Clearing and to which we now turn. d. Merrill Clearing Merrill Clearing, unlike Goldman Clearing, had an office in California and from that office provided clearing services to traders in Overstock shares, including Hazan and Arenstein. By February, 2005, Alan Cooper, the head of the office, was having “frequent interactions” with Hazan—approximately five-to-six times a week by telephone and e- mail. Cooper, Hazan, and Merrill Clearing’s compliance department discussed Regulation SHO and, in general, a clearing firm’s responsibility to insure delivery and not to fail trades. At his deposition, Cooper claimed he and the compliance officer were not offering opinions on Regulation SHO, but simply explaining how Merrill Clearing would be implementing it.

In one interaction, in mid-February, Hazan was upset that Merrill Clearing was automatically borrowing shares to insure delivery, when he expected it would not. In an internal e-mail, Cooper, based on a conversation with Hazan, relayed “the trader did not know we were going to be charging [fees to borrow] negatives” and if Merrill Clearing were to buy-in Hazan on the trade, Hazan would likely re-sell shares to “maintain his hedge.” Cooper asked if the buy-ins could be stopped. What Hazan, and in turn, Cooper, were complaining about was what Merrill termed the “flipping” of all trades for automatic delivery and settlement. This deprived legitimate market maker clients of Regulation SHO’s exemption from the locate requirement, and deprived the clearing firm of its right under the regulation to delegate delivery obligations to bona fide market maker clients. Hazan was not the only Merrill Clearing client complaining about it. Moreover, Merrill Clearing had had a “do not flip” practice for market maker clients in place prior to the time Hazan and Arenstein became clients, and the complained-about automatic “flipping” started with Merrill’s acquisition of another firm, Sage (for whom Cooper had worked), and its computer system which was not programmed to “hold back” market maker short sales. About a week later, Hazan sent Cooper an e-mail noting an interaction with Merrill Clearing’s compliance department concerning Regulation SHO, and then posing several questions: Did a clearing firm need to pay to borrow a stock if it’s “being held for less than 10 days” as would be the case with a “flex or short term option hedge?” Could the options market maker exemption exempt trades from Regulation SHO’s close- out requirements if stock did not appear on “the Reg sho list” of threshold securities until after a short sale as a hedge? If Merrill Clearing were long in the stock, could Hazan use that position to offset short sales? On the afternoon of February 23, Cooper told colleagues, in an email, Hazan was threatening to leave Merrill Clearing for another firm if Merrill could not (without providing further specifics) “accommodate his trading style.” One colleague responded “I would say we can’t.” At his deposition, Cooper could not recall what he had meant by “trading style,” but admittedly knew at the time it involved trading in threshold (hard-to-

borrow) stocks, doing “riskless” trades, “delta-neutral” trades, conversions, and reversals. He also admitted having at least a general understanding Hazan could profit from the spread between the pricing of the options components of reverse conversions. And he admitted the reverse conversions the SEC later investigated and for which it imposed sanctions, were the sort of trade Merrill was clearing. At around the same time—that is, February 2005—Cooper also began working with Arenstein. Cooper spoke to Arenstein about possibly opening an account, and Merrill Clearing’s Managing Director, Curt Richmond, told Arenstein he and Cooper were “speaking to compliance about Reg-SHO.” In a March 4, 2005 e-mail, Richmond and Merrill Clearing’s President, Thomas Tranfaglia, Jr., discussed how Arenstein wanted to talk to Tranfaglia about Regulation SHO and Merrill Clearing’s related policies. Richmond stated: “After the Hazan incident I informed [Arenstein] that we had no interest in clearing his ‘Reg-SHO fail with FLEX Options Strategy.’ ” Richmond noted Arenstein had taken “some of the other side of Hazan’s closing trades,” but told Tranfaglia “it is your call.” Arenstein particularly wanted to know if Merrill Clearing would charge market makers lending fees on a fail to deliver if there was no violation of Regulation SHO, and whether Merrill Clearing would give its clients a chance to “get out on their own” before Regulation SHO deadlines. At the end of the month, Cooper relayed to superiors a trading strategy suggested by Hazan—to use a “one day flex” in which Hazan would buy and sell calls in the same number of shares. Cooper asked “[c]ould we fail” on those shares “from the assignment the next day.” The admitted goal was “to reestablish a new short and not borrow it.” Cooper was asked to discuss the matter in person, and the conversation went offline. At his deposition, Cooper claimed he did not believe the goal of such a trade was to evade Regulation SHO, but to address Hazan’s desire to avoid fees related to the supposedly unnecessary, automated borrowing of shares imposed by the computer system Merrill Clearing had inherited from Sage. The following month, in April 2005, Cooper filled in parts of a spreadsheet listing certain securities Hazan was holding (none of which were Overstock). In the far right

By mid 2005, Merrill Clearing remedied the computer trading system it had acquired from Sage, and completed implementation of an automated “do not flip” process. This new process ensured trades in negative rebate securities (those, like Overstock, with high borrow fees) would not automatically “flip” to settlement when a market maker was selling short. Thus, Merrill Clearing would no longer inform Merrill Brokerage of the need to acquire shares to settle such short sales. Both firms were aware if the brokerage firm kept on its books the shares of negative rebate securities it otherwise would have provided to comply with Regulation SHO, those shares could be lent out for profit. Merrill Clearing claims the “do not flip” process was the means by which, as allowed by Regulation SHO, it allocated responsibility for delivery to bona fide market maker clients. Yet, Merrill still had a policy of (1) giving such clients notice of impending 13-day deadlines to close out fail to deliver positions, and (2) actually “buying in” clients who did not comply—a “buy in” being a trade ostensibly conducted to close out a fail to deliver and enable delivery to a waiting buyer. By summer 2005, discussions within Merrill turned to handling “buy ins.” In late July, Cooper noted Hazan “trades many hard to borrows and will need as much color [that is, information] on potential buy-ins as possible.” On August 29, one of Cooper’s employees, Hugh Skinner, wrote to Cooper that Hazan wanted early notification of buy- ins because late notice “could prevent him from selling into the buy-in.” At his deposition, Cooper stated traders like Hazan wanted estimates of impending buy-ins so they could “sell into it” and, in the case of naked shorts, re-obtain the naked short position and remain risk neutral. This would, Cooper understood, effectively “reset” the Regulation SHO clock and give traders, at least from Merrill’s perspective, a new period of time to complete delivery of shares. As we have discussed, the SEC found this scheme

In an internal January 2006 telephone call, the compliance officer talked about Arenstein’s trading, how he was not acting as a bona fide market maker, and how it was “not okay” to be “recycling” his “short position.” She said: “You know, I—we really—I got to set up a meeting where we have to talk to the business, because these guys, they must be spoken to. Like-and not by you. You know what I’m saying? Like this is not okay. Like you cannot be recycling this short position. I mean, I don’t understand. If he’s got—If he’s got, you know, a buy-in due today, tomorrow, and the next day, right? Then he can’t short anymore in these next few days.” That same month, the compliance officer followed up with an email to Merrill Clearing executives, telling them “as you know” Arenstein had been involved in trading activity the NASD was questioning as inconsistent with Regulation SHO, and informing them of the flex option recycling scheme and how Merrill’s net fails to deliver in Overstock were not diminishing. She noted if the firm were to drop Hazan and Arenstein, the database of fails “shrinks unbelievably.” There is also evidence, during this time frame, of compliance communications with Hazan and Arenstein during which they insisted they were acting as bona fide market makers, and a telephone call to Arenstein confronting him about recycling of trades and requesting he to do real buy-ins. Nevertheless, Merrill Clearing continued to clear Hazan’s and Arenstein’s trades for another seven months and did not even begin to wind down its “clearing relationship” with them until August 2006—just before the SEC and New York exchange issued stipulated sanctions orders against the two traders. Even after Hazan was told to leave Merrill Clearing, he continued to increase his short positions there for several months before he was finally terminated. All told, Merrill cleared Hazan’s and Arenstein’s exotic trades designed to support perpetually naked short positions for more than a year, and as a result failed to deliver Overstock shares for settlement every single day between August 1, 2005 and the end of 2006. The number of failed deliveries quickly rose above a million shares, and at one point reached three million shares.

i.) Triable Issue Merrill Clearing Was a Primary Violator As we have discussed, even if there is a triable issue Merrill Clearing knew Hazan and Arenstein’s trades were designed to evade Regulation SHO and knew it was clearing sham trades, that is not enough to raise a triable issue of primary liability under sections 25400 and 25500. Rather, the evidence must be such that Merrill Clearing’s conduct was arguably akin to “directing” Hazan’s and Arenstein’s trading schemes (Levitt, supra, 710 F.3d at pp. 466–467), or to deciding with them how to effect a manipulative trade (see Blech III, supra, 2002 WL 31356498, at p. [11]), or to providing calculated “access” to the means to engage in unlawful trading (In re Mutual Funds Inv. Litigation, supra, 384 F.Supp.2d at pp. 861–862), or to “initiating, instigating, and orchestrating the scheme” (id. at p. 862), or to having “intimate,” “hands-on involvement” and participating in “key decisions” about the “details” of the exotic trades (Scone Investments, L.P. v. American Third Market Corp., supra, 1998 WL 205338, at pp. [8]–[9]). While a close question, we conclude the evidence is sufficient to raise a triable issue Merrill Clearing did more than provide normal clearing services, bearing in mind the observation of the district court in Blech III, that “[i]n this difficult distinction . . . between aiding and abetting and direct action, the line will be drawn with respect to summary judgment in favor of protecting the investing public rather than the clearing broker.” (Blech III, supra, 2002 WL 31356498, at p. [15].) There is clearly a triable issue Merrill Clearing had knowledge, indeed abundant knowledge, its clients were rolling shorts and engaging in sham reset transactions to mimic the appearance of genuine trading. There is a triable issue Merrill did not believe, or, at the very least, could not have reasonably believed, Hazan and Arenstein were bona fide market makers engaging in legitimate trading. And there is a triable issue Merrill took an active, direct role in their trading schemes to cause, and to profit from, ongoing failures to deliver shares in short sales of Overstock, as well as other hard-to-borrow securities.

For example, there is a triable issue Cooper and others within Merrill Clearing purposefully developed or “contrived” procedures, at the request of Hazan and Arenstein, by which Merrill Clearing could, and repeatedly did, effect their one-day FLEX options “to reestablish a new short and not borrow it.” Arguably, Hazan effectively asked Merrill Clearing to review and approve the exotic “test trade” he concocted to flagrantly violate the securities laws. Not only did Merrill give its stamp of approval, it continued to clear Hazan’s unlawful trades even after compliance personnel made it clear this was “not ok.” Indeed, Merrill did so for another seven months and only stopped clearing those trades on the eve of the SEC sanction ruling. Such contriving behavior is akin to that found actionable in In re Mutual Funds Inv. Litigation, supra, 384 F.Supp.2d at page 862, in which the clearing firm provided clients with access to trading platforms that enabled manipulative late trades, and in Blech III, in which the clearing firm and clients discussed and agreed upon a strategy that would manipulate the market. Even if Merrill’s do-not-flip procedures were initially designed as a legitimate means to correct the Sage computer problem, they arguably became deliberately employed as tools to implement Hazan’s and Arenstein’s well-understood strategy of perpetuating naked short positions. Similarly, even if buy-in notifications are usually normal clearing activities, it is arguable Cooper went beyond giving routine notice and knowingly coached Hazan and Arenstein on handling buy-in obligations for the very purpose of selling into them and re-obtaining naked short positions. Moreover, the arguable buy-in coaching of these traders cannot be viewed in isolation from the evidence showing Merrill Clearing’s involvement with the development, for these same abusive traders, of the process to “roll shorts.” Cooper’s techniques were, indeed, known, and ratified, within Merrill Clearing. Cooper’s clients, said one colleague, “were knowingly putting on shorts and then basically rolling them every 13 days.” In 2005, Tanfaglia was given the “call” on whether to add Arenstein as a client given his “FLEX Options Strategy” and the “Hazan incident”—and Arenstein became a client. In early 2006, a Merrill Clearing compliance

officer was aware of Arenstein “recycling” his “short position” and called for action, but the abusive trading practices continued. In sum, while close, when the evidence is viewed in the light most favorable to plaintiffs, as it must be on review from summary judgment, it suffices to raise a triable issue Merrill Clearing, through its San Francisco office, did more than provide normal clearing services, and did more than knowingly clear its clients’ manipulative trades and sham reset transactions. There is enough to commit to a jury the difficult “distinction between aiding and abetting and direct action.” (Blech III, supra, supra, 2002 WL 31356498, at p. [15].) ii.) There Is a Triable Issue Merrill Clearing Acted to Induce Trading in a Manipulated Stock It is not enough for there to be a triable issue Merrill Clearing crossed the line from aider and abettor to primary violator in a scheme to evade Regulation SHO for the benefit of its clients. Rather, to impose liability under section 24500, subdivision (b), there must be evidence raising a triable issue Merrill participated in Hazan and Arenstein’s manipulative trading scheme for the purpose of inducing the purchase or sale of shares of Overstock by someone else. Plaintiffs’ principal evidence that Merrill Clearing had the requisite purpose of inducing market activity in Overstock was not the direct statements by defendants recounted above. Rather, they relied on expert opinions. That is, their experts drew inferences about the clearing firm’s purpose from its knowing participation in Hazan’s and Arenstein’s trading schemes and their opinion Merrill benefited financially when the stock price declined. Since the firm benefitted from price declines, and since market activity is necessary to generate a decline, the experts opined Merrill must have intended to induce further market activity. Plaintiffs’ experts declared the recycling of naked short positions created downward pressure on Overstock’s price, and plaintiffs’ expert Conner, in particular, testified the clearing firm benefited from price declines, which would spur further short selling and increase transaction fees. Also, when the clearing firm had a fail to deliver

position, it might have to pay a “mark” to the party not receiving its shares if the share price rose. If the share price declined, the clearing firm got a “mark.” The clearing firm thus did not profit directly from price declines, but rather held the mark money in a reserve account in case the share price rose. Meanwhile, however, the firm and its client earned interest on the money. Conner, thus, opined Merrill Clearing had a strong financial incentive to see this play out.24 While the evidence Merrill Clearing had the requisite purpose to induce market activity in Overstock stock is attenuated, even “weak” evidence can permit an inference of unlawful intent or purpose, as intent and purpose are rarely established with direct evidence and are typically questions for the trier of fact. (See Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 497 [“A subjective state of mind is rarely susceptible of direct proof, and a trial court will usually have to infer it from circumstantial evidence.”]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283 [Proof of discriminatory intent often depends on inferences rather than direct evidence such that “ ‘very little evidence of such intent is necessary to defeat summary judgment’ ” thus “summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.”]; id. at p. 286 [intent cases “are rarely appropriate for disposition on summary judgment, however liberalized” summary judgment has become]; see also Press v. Chem. Inv. Servs. Corp. (2d Cir. 1999) 166 F.3d 529, 538 [the question of whether a plaintiff has established the requisite intent for a section 10(b) violation is a factual question “ ‘appropriate for resolution by the trier of fact’ ”]; S.E.C. v. Masri (S.D.N.Y. 2007) 523 F.Supp.2d 361, 367, 375 [“defendant’s manipulative intent can be inferred from the conduct itself” and a defendant broker need not share the same nefarious intent as a client, so long as the intent is actionable].) Here, plaintiffs presented evidence of opportunity and motive, which, when taken with all the other evidence of Merrill’s knowing conduct, was at least for now sufficient

to survive summary judgment. (See Bains v. Moores (2009) 172 Cal.App.4th 445, 463– 464 [timing and amount of stock transactions may bear on scienter of person accused of insider trading]; Blech II, supra, 961 F.Supp. at pp. 582–583 [as to pleading scienter, allegations Bear Stearns was motivated to see prices rise because this would decrease its financial risks associated with Blech’s transactions and remove debit balances on Blech’s accounts was sufficient to state 10(b)(5) claim]; CompuDyne Corp. v. Shane (S.D.N.Y. 2006) 453F.Supp.2d 807, 824 [“The FAC has alleged a strong inference of FNY Millennium’s scienter based upon: (1) its own shorting of CompuDyne stock after being informed of the confidential non-public PIPE; (2) its continued shorting of CompuDyne stock after receipt of the Purchase Agreement that unequivocally prohibited any trading in CompuDyne stock; and (3) its ‘naked’ unlawful shorting of CompuDyne stock in direct contravention of the Purchase Agreement.”]; cf. McDaniel v. Bear Stearns & Co., Inc. (S.D.N.Y. 2002) 196 F.Supp.2d 343, 357–358 [affirming arbitration award as supported by sufficient evidence of intent to aid and abet a violation of section 10(b): “Bear had both the motive and the opportunity to engage in Baron’s fraud. One factor motivating Bear was the simple desire to continue to collect clearing fees and other income it received from Baron as part of the Clearing Agreement. [Citation.] . . . [While] the mere desire ‘to prolong the benefits’ of an ordinary clearing relationship is not enough to support the scienter element of an aiding and abetting claim . . . the Panel also found that Bear was motivated by its desire to recover from Baron’s on ‘loans above and beyond the normal clearing debt’—loans the Panel described as ‘extraordinary’. ”].) Merrill Clearing claims, of course, it was the one being deceived by the likes of Hazan and Arenstein, and believed these clients were engaged in legitimate options market making activity and therefore the firm could, under Regulation SHO, delegate its delivery obligations to them. (17 C.F.R. 242.203(b)(3)(vi) (2014).) However, a clearing firm can only “reasonably” delegate its delivery obligations. (Ibid.) Plaintiffs’ experts opined Hazan, Arenstein, and like traders were not plausibly acting as bona fide market makers and the voluminous, ongoing fails to deliver in Overstock were not due to inadvertence, but were intentional. Similarly, the SEC and other sanctioning bodies

easily concluded Hazan and Arenstein were not engaged in bona fide market making. Moreover, the evidence supports an inference Merrill Clearing was sufficiently aware of the supposed market makers’ strategies to avoid Regulation SHO (rolling short, etc.) such that any delegation of delivery obligations under that regulation would be unreasonable. Merrill Clearing also views the evidence as showing no more than a desire to make additional fees and commissions, citing cases holding that is not enough to incur liability under the securities laws. (E.g., Louisiana Pacific Corp. v. Money Market 1 Institutional Inv. Dealer (N.D. Cal., Mar. 28, 2011, No. C 09-03529 JSW) 2011 WL 1152568 [1], [8] [“The desire to earn commissions or fees is a common motive to all for profit enterprises, and that motive—without more—is insufficient to give rise to a strong inference of scienter.”], italics added; Pope Investments II LLC v. Deheng Law Firm (S.D.N.Y., Nov. 21, 2011, No. 10 Civ. 6608 (LLS)) 2011 WL 5837818 [1], [7] [“Because plaintiffs do not allege that defendants possessed any motive other than receipt of professional fees, they do not plead that defendants had a motive to commit securities fraud.”].) No doubt Merrill was motivated to maximize fees and commissions. But that does not mean it necessarily had no intent to induce trading in Overstock by others. (Cf. Rothman v. Gregor (2d Cir. 2000) 220 F.3d 81, 93 [“Although virtually every company may have the desire to maintain a high bond or credit rating . . . not every company has the desire to use its stock to acquire another company” in a potentially manipulative way.].) iii.) There Is a Triable Issue Actionable Conduct Occurred “In This State” There must also be a triable issue the manipulative conduct engaged in for the purpose of inducing trading activity occurred “in this state.” (§ 25400; Diamond, supra, 19 Cal.4th at p. 1040.) As we have recited in detail, Cooper, who was in Merrill Clearing’s San Francisco office, figures prominently in the manipulative trading schemes at issue. That other Merrill Clearing officers and employees, who interacted with Cooper and the malfeasant traders, were located in Merrill offices outside California, or that portions of the clearing

27 Accordingly, the “location” of the Pacific Stock Exchange, itself, while a topic of great debate amongst the parties is not material. And even if it was, we would readily conclude it was located in California during all relevant periods. Despite its name change in 2006, the exchange was undisputedly registered with the SEC as a national exchange in San Francisco, California. (See Self-Regulatory Organizations et al., Notice of filing and Immediate Effectiveness of Proposed Rule Change and Amends. No. 1 & 2, etc., Release No. 53615 (April 7, 2006), available at 2006 WL 2794649, [1], [2]; see also Bauman v. DaimlerChrysler Corp. (9th Cir. 2011) 644 F.3d 909, 925 [mentioning in passing the “Pacific Stock Exchange located in San Francisco”], reversed on other grounds by Daimler AG v. Bauman (2014) 134 S.Ct. 746, 748.) Merrill, itself, wrote to the Pacific Exchange in San Francisco at 115 Sansome Street. And plaintiff’s expert, Conner, declared the exchange still houses options trading, and its regulatory and business functions in San Francisco, even if its computers for securities trading are located out of state. Merrill’s claim the exchange was “in” the locale where its computers happened to be, is untenable and lacking in any legal support. Computers can be located anywhere, including overseas or in multiple places, and they can be moved. Moreover, in the context of venue, a quintessential question of locale, it is well established an exchange is located where it is registered, with no mention made of where its computer hardware happens to be. (See United States v. Geibel (2d Cir. 2004) 369 F.3d 682, 697– 698 [“There was evidence in the record establishing that AMEX is located and headquartered in New York. Accordingly, since there was evidence in the trial record establishing that venue in the SDNY was appropriate, we must affirm . . . .”]; United States v. Svoboda (2d Cir. 2003) 347 F.3d 471, 483–484 [execution of trades on the New York Stock Exchange and American Stock Exchange is sufficient to establish venue in the Southern District of New York]; SEC v. Suman (S.D.N.Y. 2010) 684 F.Supp.2d 378, 385 [action against defendants residing in Utah and Canada brought in New York where they purchased stock on New York-based NASDAQ exchange].) 52

Diamond, supra, 19 Cal.4th at p. 1050.) “[T]o the extent” section 25400, subdivisions (a) and (b), prohibit selling or offering to sell or purchasing or offering to purchase, section 25008 may provide guidance on when that conduct occurs in this state. (Id. at p. 1051.) But to the extent these two subdivisions embrace other conduct necessary to “effect, alone or with one or more other persons, a series of transactions,” section 25008 does not address the term. (See id. at pp. 1051–1052.) iv.) There Is a Triable Issue As to Causation and Damages Section 25500, establishing a private right of action for violations of section 25400, permits liability only when the plaintiff buys or sells a security “at a price which was affected by such act or transaction” and sustains “damages.” (§ 25500.) “Such damages shall be the difference between the price at which [the plaintiff] purchased or sold securities and the market value which such securities would [otherwise] have had . . . .” (Ibid.)28 Plaintiffs’ damages expert, Shapiro, discussed two theories of causation and damages: a quantity theory and a signaling theory. Put simply, the quantity theory states Overstock’s price declined because naked short sales affected the supply of Overstock shares; the signaling theory states Overstock’s price declined because naked short sales falsely signaled to the market Overstock was in a worse position than it really was. Under the quantity—or supply and demand—theory, Shapiro concluded “all fails to deliver cause harm” and “even if it is determined that some but not all of the fails . . . are to be included in this case, I could readily calculate the damages to plaintiffs.” Merrill Clearing presented no expert testimony rebutting Shapiro’s. Instead, Merrill contends his quantity theory is unsubstantiated conjecture, based solely on parroted allegations from plaintiffs’ complaint and without citation to authority. However, Shapiro never quoted plaintiffs’ complaint and cited two academic 28 While plaintiffs assert defendants never raised causation and damages in their notice of motion for summary judgment, defendants raised these issues on page 42 of their combined opening memorandum in the trial court. “An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) 53

addressing the reliability of expert testimony; “[t]herefore, this court detects no abuse of discretion in the district court’s admission of” it].) Since we conclude Shapiro’s declaration as to the quantity effects theory is sufficient to defeat summary judgment on the matter of causation and damages, we need not determine whether his signaling effects theory, alone, would be adequate to do so. At a minimum, the trial court did not err in allowing his testimony on signaling effects as corroboration of his quantity effects theory. Merrill contends Shapiro, in his analysis of signaling effects, improperly relied on a so-called “Granger Analysis,” which some academics, asserts Merrill, believe shows correlation but not directional causation. Also, Merrill complains that in his signaling effects analysis, Shapiro—though he allocated 75.3 percent of defendants’ fails to Merrill Clearing and 24.6 percent to Goldman Clearing—assumed both firm’s fails to deliver were all abnormal and manipulative and grouped them, to measure signal strength, in one large clump, as combining the fails would amplify these effects. There is nothing untoward, given the facts before us, about Shapiro employing a Granger Analysis to corroborate his independent conclusion that fails to deliver were “inject[ing] false information into the market” and causing the observed price decline in Overstock, based upon his review of market conditions, comparable companies, and events. (See Pickett v. IBP, Inc. (M.D. Ala., Apr. 10, 2003, No. Civ. 96-A-1103-N) 2003 WL 24275809, [1], [4], fn. 3 [“The Granger causality test should not be used in isolation to determine causation. When used with other tests and models, however, the Granger test is an appropriate vehicle from which to base an opinion.”].) Even if Shapiro’s signaling effects analysis was weakened because it depended on measuring the aggregated “signal” from all fails to deliver, without accounting for whether they were manipulative, tied to California, or associated with any particular clearing firm, portions of the signaling effects model still offered corroboration for the conclusions of the quantity effects analysis. For example, Shapiro’s event study demonstrated irregular forces (unrelated to Overstock’s performance and the performance of the larger market) were aggravating the decline on Overstock’s price.

Accounting for causation and damages in a case so complex and fluid is no easy task, and Shapiro’s declaration suitably acknowledged and accommodated for this, at least for purposes of defeating summary judgment. (See CILP Associates, L.P. v. PriceWaterhouse Coopers LLP (2d Cir. 2013) 735 F.3d 114, 126 (CILP Associates) [as to a section 10(b) claim, a high “level of precision was not required to defeat summary judgment for the simple reason that the amount of overstatement relates to damages, not liability. To defeat summary judgment, the plaintiffs merely had to establish a genuine dispute as to whether they purchased their shares at inflated prices, regardless of the amount of the inflation.”].) Further, fact witnesses from defendants and third parties testified to a link between naked short sales and declining prices. Thus, while not a particularized showing by any means, plaintiffs provided enough evidence of causation and damages to raise a triable issue. (See CILP Associates, supra, 735 F.3d at p. 126; see also Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864 [“causation . . . is ordinarily a question of fact which cannot be resolved by summary judgment” and “[t]he issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion”]; GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873 [“Where the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. [Citations.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.”].) e. Preemption Merrill Clearing also raises the specter of preemption and exclusive federal jurisdiction. It maintains California cannot impose liability for conduct that otherwise complies with Regulation SHO and asserts federal courts have exclusive jurisdiction over Regulation SHO claims. Merrill would be correct if plaintiffs simply alleged violations of Regulation SHO. Section 27 of the SEA provides: “The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United

States shall have exclusive jurisdiction of violations of this title [citation] or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title [citation] or the rules and regulations thereunder. . . .” (15 U.S.C. § 78aa, subd. (a); see Matsushita Elec. Indus. Co., Ltd. v. Epstein (1996) 516 U.S. 367, 381; Lippitt v. Raymond James Financial Services, Inc. (9th Cir. 2003) 340 F.3d 1033, 1037 (Lippitt) [“any claim that properly falls within the scope of § 27 is necessarily federal in character”].) But section 28 of the SEA provides: “ ‘The rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or in equity . . . Except as otherwise specifically provided in this chapter, nothing in this chapter shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder. . . .’ ” (Lippitt, supra, 340 F.3d at p. 1037, quoting 15 U.S.C. § 78bb(a)(1)– (2).) “On its face, § 28 preserves both common law and statutory authority over securities matters and thus reflects Congressional recognition of state competence in the securities field.” (Lippitt, supra, 340 F.3d at p. 1037; Gold v. Blinder, Robinson & Co., Inc. (S.D.N.Y. 1984) 580 F.Supp. 50, 53–54 [“The exclusive jurisdiction of federal courts over claims under the 1934 Act does not bar a plaintiff from pursuing at its option cognate remedies based entirely upon state law.”].) This has been recognized by California courts for as long as the modern Corporate Securities Law has been in force. (Roskind v. Morgan Stanley Dean Witter & Co. (2000) 80 Cal.App.4th 345, 352 (Roskind) [“ ‘Congress plainly contemplated the possibility of dual litigation in state and federal courts relating to securities transactions.’ ”]; Twomey v. Mitchum, Jones & Templeton, Inc. (1968) 262 Cal.App.2d 690, 704–706 [“As has already been pointed out, the rights and remedies provided by the Securities Exchange Act of 1934 “ ‘shall be in addition to any and all other rights and remedies that may exist at law or in equity.’ ”].)

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

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