Local No. 38 International Brotherhood of Electrical Workers Pension Fund v. American Express Co.

SUMMARY ORDER Lead plaintiff Local No. 38 International Brotherhood of Electrical Workers Pension Fund (“plaintiff’) brought this putative class action against American Express Company, and two of its senior corporate officers, Kenneth I. Chenault and Daniel T. Henry (jointly, “defendants”). In its complaint, plaintiff alleged that defendants violated §§ 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j (b), 78t(a), by misleading investors about American Express’s underwriting guidelines and its exposure to delinquent cardholder payments. Defendants moved to dismiss the suit, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted this motion, and plaintiff now appeals. We assume the parties’ familiarity with the facts, procedural history, and legal issues currently before us. We review de novo a district court’s dismissal of a complaint for failure to state a claim under Rule 12(b)(6). See, e.g., Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009). “In conducting this l-eview, we assume all ‘well-pleaded factual allegations’ to be txme, and ‘determine whether they plausibly give x-ise to an entitlement to relief.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,-, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). A complaint alleging securities fi-aud must satisfy Rule 9(b), which requix-es that “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.CivP. 9(b). Additionally, we have intex-px-eted the pleading standax-ds of the Px'ivate Securities Litigation Refoxm Act, codified at 15 U.S.C. § 78u-4(b), to require that a defendant’s intent be pleaded and based on “facts [either-] (1) showing that the defendants had both motive and oppox-tunity to commit the fraud or (2) constituting stx-ong circumstantial evidence of conscious misbehavior or x-ecklessness.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). In Tellabs, Inc. v. Malcor Issues & Rights, Ltd., 551 U.S. 308, 324, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), the Supreme Coux-t explained that, in the context of the pleading requirements set forth in the PSLRA, “[a] complaint will sux-vive ... only if a reasonable pex-son would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw fi-om the facts alleged.” “In a typical § 10(b) px-ivate action a plaintiff must prove (1) a matex-ial misx-epresentation or omission by the defendant; (2) scienter; (3) a connection between the misx-epx-esentation or omission and the pux*chase or sale of a. security; (4) x-eliance upon the misx-epx-esentation or omission; (5) economic loss; and (6) loss causation.” Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008). As the District Court correctly held, plaintiff failed to plead facts establishing defendants’ scienter. Plaintiff asserts that Chenault and Henx-y made false statements denying that American Expx-ess had pux-posefully x-elaxed its undex-wx-iting standards, but fails to satisfactorily allege what specific contradictory information Chenault and Henx-y possessed or when they possessed it. Local No. 38 IBEW Pension Fund v. Am. Express Co., 724 F.Supp.2d 447, 461 (S.D.N.Y.2010). As the District Coux-t aptly summarized: *65 The Complaint’s allegations, taken collectively, reveal a company attempting to increase its share of the credit card market during significant financial turmoil. That [American Express’s] losses were higher than those of its competitors does not alone support the inference that Defendants acted with intent or reckless disregard. The more compelling inference is that Defendants’ aggressive growth strategy was sideswiped by the collapse of the credit markets. See Tellabs, 551 U.S. at 314, 127 S.Ct. 2499 (plaintiffs inference must be “more than merely plausible or reasonable”). While Plaintiff musters twelve confidential witnesses, not one of them can identify a single specific report containing adverse credit data or relaxed underwriting guidelines. Id. at 463 (citation omitted). Having conducted an independent and de novo review of the record in light of these principles, we affirm the judgment below for substantially the reasons stated by the District Court in its thorough and well-reasoned opinion. Local No. 38, 724 F.Supp.2d 447. CONCLUSION We have considered each of plaintiffs arguments on appeal and find them to be without merit. For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.