ORDER AND REASONS
SARAH S. VANCE, District Judge.
This case is a securities class action brought on behalf of all persons who acquired ATP Oil and Gas Corporation ("ATP") 11.875% Senior Second Lien Exchange Notes ("Notes") traceable to an allegedly false and misleading Form S-4 registration statement and prospectus issued in connection with ATP's December 16, 2010 exchange offer ("the Exchange"). ATP filed for Chapter 11 Bankruptcy on August 17, 2012 and is not named as a defendant in this action. Instead, plaintiffs sued ATP's senior executives and board of directors, alleging violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 ("Securities Act"). Defendants T. Paul Bulmahn, Albert L. Reese, Jr., and Keith R. Godwin (collectively, the "Officer Defendants") have filed a motion to dismiss plaintiffs' Amended Complaint for failure to state a claim.
Before it filed for bankruptcy in 2012, ATP engaged in the acquisition, development, and production of oil and natural gas properties.
On April 19, 2010, ATP raised $1.5 billion by selling unregistered private notes to institutional investors in a transaction exempt from the registration requirements under the Securities Act.
On April 20, 2010, the day following the private note offering, the drilling rig Deepwater Horizon exploded and sank in the Gulf of Mexico, fracturing the well's pipe and creating "the largest oil spill in U.S. history."
On or about October 12, 2010, ATP filed the Registration Statement with the Securities and Exchange Commission ("SEC"), indicating its intent to exchange the $1.5 billion in unregistered private notes for the registered Senior Second Lien Exchange Notes at issue in this litigation.
Ultimately, ATP did not survive and filed for Chapter 11 Bankruptcy on August 17, 2012.
When asked whether "ATP [had] the liquidity and revenues at that time to absorb a lengthy moratorium," Reese responded "no."
By May 24, 2013, the date of the filing of the initial complaint in this action, the Notes acquired by Lead Plaintiff Plumbers and Pipefitters National Pension Fund and the Class were trading at just over 1% of par.
Named Plaintiff Firefighters Pension & Relief Fund of the City of New Orleans
Plaintiff claims that its losses are a direct result of defendants' misrepresentations and omissions in the Registration Statement.
The Officer and Director Defendants now seek to dismiss plaintiff's Amended Complaint for failure to state a claim.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir.2009).
A legally sufficient complaint need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the Court must dismiss the claim. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
A. Section 11 Claim
Section 11 of the Securities Act applies to registered securities and imposes civil liability on the signatories to the registration statement and on the directors of the issuer when the registration statement is materially misleading or defective. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 861 (5th Cir.2003) (citing 15 U.S.C. § 77k). To succeed on a Section 11 claim, the plaintiff must show that the registration statement "contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. . . ." Id. (quoting 15 U.S.C. § 77k(a)). "A `material fact' is one which a reasonable investor would consider significant in the decision whether to invest, such that it alters the `total mix' of information available about the proposed investment." Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1445 (5th Cir.1993) (citing Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 207-08 (5th Cir.1988)). A fact is not material if "a reasonable investor viewing the information in context would not have considered the investment significantly more risky as a result." Id. at 1446.
With respect to alleged omissions, an issuer need only disclose information that is either (1) necessary to make other statements not misleading, or (2) specifically required to be disclosed by the securities laws. See Kapps v. Torch Offshore, Inc., 379 F.3d 207, 212 n. 6 (5th Cir.2004) (citing Oxford Asset Management Ltd. v. Jaharis, 297 F.3d 1182, 1190 (11th Cir. 2002)). The "mere possession of material nonpublic information does not create a duty to disclose." Id. (quoting Shaw v. Digital Equipment, 82 F.3d 1194, 1202 (1st Cir.1996)).
Section 11's "expansive" liability provisions create "`virtually absolute' liability for corporate issuers for even innocent material misstatements." Krim v. pcOrder.com, Inc., 402 F.3d 489, 495 (5th Cir.2005). Accordingly, a Section 11 plaintiff need not plead scienter, reliance, or fraud. Rombach v. Chang, 355 F.3d 164, 169 n. 4 (2d Cir.2004). Nonetheless, when a plaintiff's allegations are grounded in fraud, Rule 9(b)'s heightened pleading standards apply. Lone Star Ladies Inv. Club v. Schlotzsky's Inc., 238 F.3d 363, 368 (5th Cir.2001) (citing Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994)). Accord Rombach, 355 F.3d at 171; Indiana State Dist. Council of Laborers & HOD Carriers Pension & Welfare Fund v. Omnicare, Inc., 719 F.3d 498, 502-03 (6th Cir.2013), cert. granted, ___ U.S. ___, 134 S.Ct. 1490, 188 L.Ed.2d 374 (2014).
Under Rule 9(b), a party "must state with particularity the circumstances constituting fraud or mistake." Fed. R.Civ.P. 9(b). The required conditions of a person's mind, however, may be alleged
Merely disclaiming allegations of fraud is insufficient to exempt a claim from Rule 9(b)'s requirements "when the wording and imputations of the complaint are classically associated with fraud." Rombach, 355 F.3d at 172; see also Omnicare, 719 F.3d at 502-03 (applying Rule 9(b) despite fraud disclaimer in complaint when factual allegations were "indisputably immersed" in fraud) (quoting Cal. Pub. Emps. Ret. Sys. v. Chubb Corp., 394 F.3d 126, 160 (3d Cir.2004)).
1. ATP's Alleged Omissions Concerning its Liquidity and Revenue
The Amended Complaint alleges that defendants omitted material facts concerning ATP's liquidity and revenue that were required by law to be stated in the Registration Statement. Specifically, plaintiff alleges
Plaintiff points to Regulation S-K as the source of defendants' affirmative obligation to disclose this information.
Item 303(a)(3)(ii) further obligates the issuer to
i. The Moratoria
Plaintiff points out that as of 2009, 68% of ATP's net proved reserves were located in the Gulf of Mexico, and between 2009 and 2010, over 90% of ATP's production was concentrated in the Gulf. It alleges that defendants ran afoul of Item 303 because they failed to disclose that ATP "reasonably expected" the moratoria to affect liquidity and revenues in a material way. Plaintiff points to Reese's declaration and testimony in the bankruptcy proceedings that took place nearly two years after the Effective Date as evidence "that ATP knew in 2010 that it could not survive the moratoria."
This claim is without merit. To the extent that the moratoria constituted a "known trend" that was reasonably likely to materially impact ATP's liquidity and revenues, ATP discussed the BP oil spill and resulting moratoria in great detail in the Prospectus.
Plaintiff contends that ATP's disclosures were inadequate because they failed to discuss the impact that the moratoria already were having on ATP. It also contends that Item 303 requires issuers to disclose not only the known trends themselves, but how the trend or event is likely to affect liquidity or revenues, citing Panther Partners, Inc. v. Ikanos Communications, Inc., 681 F.3d 114, 120-21 (2d Cir. 2012), and Litwin v. Blackstone Group, L.P., 634 F.3d 706, 718-19 (2d Cir.2011).
First, defendants dedicated a significant portion of the Prospectus to a discussion of the moratoria's impact on ATP's operations as well as their possible future effects. The Prospectus contained the following disclosures regarding the manner in which the moratoria were already affecting ATP's operations:
With respect to the moratoria's potential future impact on ATP's revenues and liquidity, the Prospectus contained the following warnings:
Importantly, the financial statements contained in the Prospectus revealed that ATP had suffered a net loss of roughly $121.4 million in the nine months ending
These statements plainly indicate (1) that the moratoria had halted much of ATP's drilling and production activity in the Gulf; (2) that development delays or curtailment of production at material properties such as the Telemark Hub might materially affect ATP's financial position and operating results; (3) that drilling and production activity was necessary to provide the cash flow required to fund ATP's capital plan and meet its existing obligations; (4) that ATP had suffered significant losses in 2010; (5) that ATP did not know when permits would issue or when it would be able to resume drilling; and (6) that the delays, coupled with the new regulatory framework for obtaining permits, could have material adverse effects on ATP's liquidity and revenues, including potentially ending ATP's drilling operations in the Gulf altogether. It was no secret that ATP's Gulf of Mexico operations were the firm's primary source of revenue.
Moreover, despite plaintiff's assertions, nothing in Panther Partners or Litwin would require an issuer to predict whether, two years down the road, it ultimately would be able to survive an ongoing negative event with an uncertain end date. In Panther Partners, the Court held that "the Registration Statement's generic cautionary language that `[h]ighly complex products such as those that [Ikanos] offer[s] frequently contain defects and bugs' was incomplete" when Ikanos "knew that . . . the chips that it had sold to . . . its largest customers and the largest source of its revenues[ ] were defective, . . . and that it [may] therefore have to accept returns of all of the chips that it had sold to these two important customers," undermining customer confidence in the brand. 681 F.3d at 121-22. In Litwin (a case about materiality), the Court held that an issuer has an obligation to disclose publicly known, general trends, such as a decline in the real estate market, when those trends are likely to impact the issuer in particular for reasons that are not necessarily apparent to investors. 634 F.3d at 716-22. The Court concluded that the real estate market decline was material to the issuer's liquidity because of the issuer's significant residential real estate investments, and the Court concluded that the issuer had an obligation to make this connection for its investors in the registration statement. Id. Likewise, the issuer had a duty to disclose a portfolio company's loss of an exclusive customer agreement because the issuer had invested heavily in the portfolio company. Id. In essence, Litwin and Panther Partners require an issuer to disclose the reasons that the effects of a trend or event are or will be material for the issuer. They do not require the issuer to predict in mathematical terms the extent to which a known trend ultimately will affect revenues or liquidity.
Not satisfied with ATP's disclosures concerning the past and potential future effects of the moratoria, plaintiff argues that defendants "knew in 2010 that ATP did not have the liquidity and revenues to survive a lengthy moratorium"
As previously stated, there is no general duty to disclose all material, non-public information. Kapps, 379 F.3d at 212 n. 6. The information must be either (1) necessary to make other statements in the registration statement not misleading, or (2) specifically required to be disclosed by the securities laws. Id. To the extent plaintiff argues that ATP's failure to disclose its future bankruptcy rendered its projection of increased hydrocarbon production in 2011 misleading,
DiLeo v. Ernst & Young, 901 F.2d 624, 627-28 (7th Cir.1990).
Here, plaintiff's allegations that defendants knew ATP would ultimately go bankrupt and purposefully withheld that information sound in fraud and are incompatible with plaintiff's statements in the Amended Complaint expressly disclaiming any and all allegations of fraud or intentional misconduct.
To the extent plaintiff argues that ATP's future bankruptcy somehow was itself a "known" trend or event triggering a duty to disclose under Item 303, this allegation also (1) amounts to an attempt to plead fraud by hindsight (2) is incompatible with plaintiff's fraud disclaimer, and (3) fails to plead defendants' knowledge with the requisite particularity. While Section 11 claims generally do not require proof of scienter, "[s]ome of the duties of disclosures, the breaches of which Section 11 makes actionable, do require knowledge." J & R Mktg., SEP v. Gen. Motors Corp., 549 F.3d 384, 392 (6th Cir.2008). Item 303, which mandates the disclosure of "known" trends or events, "requires that a plaintiff plead, with some specificity, facts establishing that the defendant had actual knowledge of the purported trend." Blackmoss Investments Inc. v. ACA Capital Holdings, Inc., No. 07-10528, 2010 WL 148617, at *9-10 (S.D.N.Y. Jan. 14, 2010) (holding on motion to dismiss that news articles and price indices published after defendant's IPO were insufficient evidence of defendant's knowledge of a rising foreclosure trend) (collecting cases); accord J & R Mktg., SEP, 549 F.3d at 392.
Plaintiff impermissibly lumps all defendants-both officers and outside directors alike-together and points to Reese's 2012 statements as evidence of the defendants' collective knowledge in 2010. This will not suffice. Cf. In re Thornburg Mortgage, Inc. Sec. Litig., 824 F.Supp.2d 1214, 1262 (D.N.M.2011), aff'd, Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190 (10th Cir.2013) (observing that plaintiffs' allegations that the defendants failed to disclose known trends as required by Item 303 "fail to differentiate between the Defendants, robbing their assertion of plausibility.") (collecting cases). Accordingly, the Court dismisses plaintiff's claim that ATP omitted material information concerning its ability to survive the moratoria.
ii. The Atwater Well's Underperformance
Plaintiff also alleges that the Registration Statement was false and misleading because it omitted material facts relating to the poor performance of the Atwater well at ATP's Telemark Hub. As with its arguments relating to the moratoria, the Amended Complaint conflates two separate grounds for liability based on omissions. It is unclear whether plaintiff is alleging that defendants had a duty to disclose this information because of Item 303 or because it was necessary to make other statements in the Prospectus not misleading. At one point, the Amended Complaint alleges that the Registration Statement's projections of increased production in 2011 were misleading because it failed to disclose that the Atwater well lacked connectivity and was underperforming, suggesting that defendants are liable for omitting information necessary to make other statements not misleading. However, plaintiffs allege that the reason the statement is misleading was because ATP's liquidity and revenues were reasonably likely to be materially affected by
ATP's risk disclosure warned generally that ATP "may experience production that is less than estimated and development costs that are greater than estimated in our reserve reports." With respect to the Telemark Hub in particular (which included the Atwater well), the risk disclosure stated that "production curtailment at our material properties including at our Telemark Hub may adversely affect our financial position and results of operations." Plaintiff argues that this disclosure was itself misleading because
Defendants argue that the Securities Act's statute of limitations bars plaintiffs' claim. The Act provides that "[n]o action shall be maintained to enforce any liability created under [Section 11] of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence." 15 U.S.C. § 77m. "This standard is generally referred to as "inquiry notice," and it applies "when a reasonable investor of ordinary intelligence would have discovered the information and recognized it as a storm warning."" Sudo Properties, Inc. v. Terrebonne Parish Consol. Gov't, 503 F.3d 371, 376 (5th Cir.2007). In Jensen v. Snellings, the Fifth Circuit explained:
841 F.2d 600, 607 (5th Cir.1988) (citations omitted).
Among the circumstances that may constitute a storm warning are "disclosures in the media, a sudden drop in stock price, filing for bankruptcy, an SEC investigation, and warnings in a prospectus." In re Franklin Bank Corp. Sec. Litig., 782 F.Supp.2d 364, 384 (S.D.Tex. 2011), aff'd sub nom. Harold Roucher Trust U/A DTD 9/21/72 v. Nocella, 464 Fed.Appx. 334 (5th Cir.2012) (citing In re Dynegy, Inc., 339 F.Supp.2d 804, 845-46 (S.D.Tex.2004)). This objective inquiry does not turn on a plaintiff's subjective awareness of the particular disclosure, as the "reasonable investor" is "presumed to have read prospectuses, quarterly reports and other information relating to their investments." Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., No. 00-4285, 2002 WL 33934282, at *24 (D.N.J. June 26, 2002) (quoting Mathews v. Kidder, Peabody & Co., 260 F.3d 239, 252 (3d Cir.2001)). This standard also assumes knowledge of "publicly available news articles and analyst's reports." Conwill v. Greenberg Traurig, L.L.P., No. 09-4365, 2010 WL 3021553, at *3 (E.D.La. July 29, 2010) (quoting Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 507 (3d Cir.2006) (discussing storm warnings in the context of the Civil RICO statute of limitations)). "An investor need not have notice of the entire wrong being perpetrated to be on inquiry notice." In re Franklin,
Determining when a plaintiff is deemed to be on inquiry notice is a "fact-intensive inquiry" that is "typically appropriate for consideration by a jury." Sudo Properties, Inc., 503 F.3d at 376 (quoting Margolies v. Deason, 464 F.3d 547, 553 (5th Cir.2006)). Defendants bear the heavy burden of demonstrating that "uncontroverted evidence irrefutably demonstrates when a plaintiff discovered or should have discovered the fraudulent conduct." In re Franklin, 782 F.Supp.2d at 384.
Nevertheless, when "the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of a wrongdoing can be gleaned from the complaint and agency filings that are integral to the complaint, resolution of the issue on a motion to dismiss is appropriate." In re Dynegy, Inc., 339 F.Supp.2d at 847 (quoting Dodds v. Cigna Securities, Inc., 12 F.3d 346, 352 n. 3 (2d Cir.1993)). See also Miller v. Nationwide Life Ins. Co., 391 F.3d 698, 700 (5th Cir.2004) (concluding that information in a publicly filed supplemental prospectus placed the plaintiff on constructive notice of misrepresentations in the original prospectus); In re Ultrafem Inc. Securities Litigation, 91 F.Supp.2d 678, 692 (S.D.N.Y.2000) ("Dismissal is appropriate when the facts from which knowledge may be imputed are clear from the pleadings and the public disclosures themselves."); Pension Trust Fund
Because plaintiff filed suit on May 24, 2013, the existence of information capable of putting plaintiff on inquiry notice of Atwater's performance problems on or before May 24, 2012 would bar this claim. Defendants point to a number of quarterly earnings conference calls starting in May 2010 in which Atwater's poor performance was discussed.
Before examining the information disclosed in the earnings calls, the Court must determine whether it is appropriate to consider the calls on a Rule 12(b)(6) motion to dismiss. In deciding a motion to dismiss for failure to state a claim, courts typically must limit their inquiry to the facts stated in the complaint and the documents either attached to or incorporated in the complaint. Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). "However, courts may also consider matters of which they may take judicial notice." Id. at 1017-18 (citing Fed.R.Evid. 201(d) ("The court may take judicial notice at any stage of the proceeding.")). In Lovelace, the Fifth Circuit adopted the rule of other circuits that in securities cases, courts may take judicial notice of the contents of public disclosure documents that are filed with the SEC as required by law. Id. at 1018 & n. 1. More generally, however, the Federal Rules of Evidence permit courts to take judicial notice of any fact "not subject to reasonable dispute" because it either "(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201.
Applying Rule 201, numerous district courts have taken judicial notice of earnings call transcripts when the parties did not dispute the accuracy of their contents. See, e.g., Rosenbaum Capital, LLC v. McNulty, 549 F.Supp.2d 1185, 1189-90 (N.D.Cal.2008) ("This [earnings call] transcript. . . is publicly available and was disclosed to the market, and therefore is appropriate for judicial notice."); California Pub. Employees' Ret. Sys., 2002 WL 33934282, at *13 (taking judicial notice when, "for the purposes of this motion, there is no material dispute as to the transcripts of the conference calls"); In re Washington Mut., Inc. Sec., Derivative & ERISA Litig., No. 08-1919, 2009 WL 3246994, at *4 (W.D.Wash. Oct. 5, 2009) ("A court may also take judicial notice of. . . conference call transcripts.") (citing In re Pixar Sec. Litig., 450 F.Supp.2d 1096, 1100 (N.D.Cal.2006)); Stevens v. InPhonic, Inc., 662 F.Supp.2d 105, 128 (D.D.C.2009) ("Other courts have further held that taking judicial notice of conference call transcripts is appropriate in order to "provide the full context in which the information was disclosed to the market." "). See also In re Copper Mountain Sec. Litig., 311 F.Supp.2d 857, 864 (N.D.Cal.2004) ("[T]he court may take judicial notice of information that was publicly available to reasonable investors at the time the defendant made the allegedly false statements.").
As with newspaper articles and analyst reports, courts consider earnings call transcripts not for the truth of the
Here, the transcripts provided by the defendants were publicly available on LexisNexis within days or, at most, a few weeks, of the earnings calls,
The next question is whether a reasonable investor would have discovered the information disclosed in the earnings calls. As explained above, a reasonable investor is "presumed to have read prospectuses, quarterly reports and other information
The only question that remains, then, is whether a reasonable investor would have recognized the information disclosed in the earnings calls as a "storm warning" that the Atwater Well was underperforming. The complaint alleges that "[f]or months prior to the Exchange, ATP's Telemark hub was substantially underperforming due to the undisclosed fact that the Atwater well lacked connectivity," and that this poor performance "was a known trend or uncertainty that was then having and was reasonably likely to continue to have an unfavorable impact on ATP's revenues and liquidity."
The earnings calls before and after the Effective Date disclosed that Atwater's performance was drastically below the test well projections, the production zone was relatively small, and that the well suffered compression problems. In a March 2010 earnings call, an analyst observed, and Leland Tate acknowledged, that "Atwater [had] tested a little bit over 10,000 BOEs per day but from two zones."
In a March 2011 earnings call, Reese announced that ATP spent $1 billion on the Telemark hub and had anticipated bringing in production of 50,000 barrels a day by the end of the year.
In response, Tate did not dispute that Atwater was in decline but stated that it and another well connected to the Telemark Hub together were producing a total of approximately 10,000 barrels per day.
Then, in an August 2011 earnings call, Tate indicated that Atwater was averaging just 500 to 750 barrels a day on a quarterly basis:
Tate again explained this process during ATP's November 2011 earnings call after an analyst asked why Atwater's production had been zero in recent months:
Thus, as of the Effective Date, reasonable investors had notice that Atwater was drilled into a fault block that was not large, that production numbers had been reduced twice from initial test well estimates to about one-third of the original estimate, and that the well had pressure problems. Further, reasonable investors were on constructive notice no later than November 2011 that the well's production continued to decline precipitously as it had before the Effective Date, that as of the Effective Date it was shut in, and that the well's size, configuration, production pattern, and problems were not new or unexpected to defendants as of the Effective Date. Combined with the disclosure in the prospectus that curtailment of production at properties like Telemark, where only the Atwater well was producing at the time, might adversely affect ATP's financial position and results of operations, these disclosures were sufficient to trigger
Plaintiff's claim would fail even if it were not barred by the statute of limitations, because the allegations in the complaint do not plausibly suggest that the failure to disclose Atwater's poor performance amounted to a material omission or rendered misleading ATP's projections of increased production. ATP had interests in 104 wells in the Gulf of Mexico alone, 93 of which were in operation. The Prospectus disclosed that
The company was under no general obligation to provide updates on the performance of each and every one of its wells. Cf. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 448-449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976) (warning that disclosure obligations that "bury the shareholders in an avalanche of trivial information. . . [are] hardly conducive to informed decision making."). Plaintiff argues that ATP nonetheless should have provided information about this well, because trouble at Atwater meant trouble for the entire Telemark Hub, which accounted for 36% of ATP's total net proved reserves as of December 31, 2009. The thrust of plaintiff's argument is that Atwater's connectivity problems should have indicated to ATP that all of the wells at the company's Telemark Hub "were reasonably likely to
The Court must draw all inferences in favor of the plaintiff, but only when those inferences are reasonable. Further, it is the plaintiff's responsibility to plead factual content sufficient to demonstrate the plausibility of the allegations made in the complaint. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Without any supporting factual allegations, the Court cannot plausibly infer that one well's alleged connectivity issues meant that planned wells in other fields connected to the Telemark Hub also were likely to underperform. The Court therefore grants defendants' motion to dismiss this claim.
2. Alleged Misstatements Regarding ATP's Reported Proved Oil and Gas Reserves
ATP's Prospectus and Registration Statement incorporated by reference the Company's 2009 Form 10-K, which contained an estimate of proved oil and gas reserves as of December 31, 2009. Plaintiff claims that the incorporation of this figure—135 MMBoe—into the Registration
Rule 4-10 of Regulation S-X prescribes financial accounting and reporting standards for oil and gas producing activities. See 17 C.F.R. § 210.4-10. Specifically, Rule 4-10(a)(22) reads:
17 C.F.R. § 210.4-10(a)(22).
Plaintiff alleges that ATP's estimates were neither "sufficiently supported by geoscience and engineering data nor estimated with reasonable certainty to be economically producible, as required by SEC regulations," because ATP discovered that the Atwater well lacked connectivity after the estimates were produced but before the Effective Date.
Because this claim also turns on ATP's alleged failure to disclose the problems at Atwater, it too is barred by the statute of limitations. Even if that were not the case, the allegation fails to state a claim. The estimate was prepared by two independent petroleum engineering firms in accordance with SEC regulations and purports to be accurate as of December 31, 2009.
Estimates of our oil and natural gas reserves and the costs and timing associated with developing these reserves may not be accurate. Additionally at December 31, 2009 approximately 87% of our total proved reserves are classified as undeveloped. Development of these reserves may not yield the expected results, or the development may be delayed or the development costs may exceed our estimates, any of which may materially affect our financial position and results of operations. Development activity may result in downward adjustments or reserves or higher than estimated costs.
Our estimates of our proved oil and natural gas reserves and the estimated future net revenues from such reserves are based upon various assumptions, including assumptions required by the SEC relating to oil and natural gas prices, drilling and operating expenses, capital expenditures, taxes and availability of funds. This process requires significant decisions and assumptions in the evaluation of available geological, geophysical, engineering and economic data for each reservoir. Therefore, these estimates are inherently imprecise and the quality and reliability of this data can vary.
Any significant variance could materially affect the estimated quantities and PV-10 value of our reserves. Our properties may also be susceptible to hydrocarbon drainage from production by other operators on adjacent properties. In addition, we will likely adjust estimates of proved reserves to reflect production history, results of development, prevailing oil and natural gas prices and other factors, many of which are beyond our control. Actual production, revenues, taxes, development expenditures and operating expenses with respect to our reserves may vary materially from our estimates.
Thus, ATP's failure to provide interim reserve estimates does not give rise to an independent basis for liability under Section 11. To the extent plaintiff alleges that the Atwater connectivity problems and drilling moratoria rendered historical data—including the reserve estimates—misleading, thus triggering a duty to disclose their existence and possible effects, this allegation is merely a restatement of plaintiffs' claim in Subsection 1 and requires no further discussion.
Plaintiff also contends that the reserve estimates were false and misleading because
It further alleges that
Plaintiff again bases these allegations on Reese's declaration in 2012 that the moratoria "created significant liquidity problems"
To the extent plaintiff alleges that a projected deployment date of 2012 did not constitute a "reasonable time" within which to produce the Cheviot Hub reserves, that allegation is barred by the statute of limitations, because the 2009 Form 10-K containing the reserve estimates also disclosed that the Octabuoy was slated to be deployed in 2012.
In sum, the reserve estimates were reasonable when made, and defendants had no obligation to provide updated figures until the issuance of the 2010 Form 10-K in March 2011. Accordingly, plaintiff's allegations that the reserve estimates were false or misleading fail to state a claim, and the Court dismisses them with prejudice.
3. ATP's Projection of Increased Hydrocarbon Production in 2011
ATP's Prospectus stated it "project[ed] a substantial increase in production over the next year as development wells are brought into production." Plaintiff alleges that this statement was false or misleading because, due to the moratoria and the Atwater connectivity problem, "defendants had no reasonable basis to expect, and did not in fact expect, a substantial increase in production over the next year."
Defendants point out that production did increase from 2010 to 2011. Specifically, ATP's 2011 Form 10-K reported a 17% increase in overall production.
A defendant who makes a predictive statement that turns out to be true does not automatically escape liability, however, as the truth or falsity of a statement "is judged by the facts as they existed when the registration statement became effective." In re Facebook, Inc. IPO Sec. & Derivative Litig., 986 F.Supp.2d 487, 518 n. 28 (S.D.N.Y.2013) (quoting In re IPO Sec. Litig., 358 F.Supp.2d 189, 205 (S.D.N.Y.2004)); see also Pommer v. Medtest
Nonetheless, plaintiff's claim fails because the PSLRA requires specific allegations that defendants made the prediction with actual knowledge of its falsity, and plaintiff expressly disclaims such allegations. The Private Securities Litigation Reform Act ("PSLRA") created a "safe harbor" from liability for certain forwardlooking statements contained in a registration statement. It provides that an individual defendant
15 U.S.C. § 77z-2(c).
Because the provision is disjunctive, parts A and B must be considered separately. Thus, in the case of every predictive statement, a plaintiff now must plead facts indicating that the defendant
Plaintiff does allege that defendants actually knew the prediction was false at the time it was made. Again, the problem is that plaintiff also expressly disclaimed any allegations of fraud in the Amended Complaint, instead suggesting that the claims sounded in negligence.
629 F.Supp.2d 272, 295 (S.D.N.Y.2009).
Faced with plaintiff's internally contradictory position, the Court must either: (1) accept plaintiff's fraud disclaimer and dismiss this claim for failure to allege actual knowledge of the falsity of the prediction, or (2) ignore the fraud disclaimer and apply the heightened pleading standards of Rule 9(b) and the PSLRA to plaintiff's allegations of actual knowledge. Even taking the latter approach, the Court must dismiss plaintiff's claim for failure to plead actual knowledge with the requisite particularity.
When a particular state of mind such as "actual knowledge" is an essential element of a claim, the plaintiff must,
15 U.S.C. § 77u-4(b)(2). The allegations also must be specific as to each individual defendant. See Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 364 (5th Cir.2004) (holding that group pleading is incompatible with the requirements of § 77u-4(b)(2)). Thus, plaintiff
Here, plaintiff generally alleges defendants' collective knowledge of ATP's inability to survive the moratoria based on after-the-fact statements of a single defendant. Once again, this allegation amounts to fraud-by-hindsight pleading even as to Reese, who made the statement. The statement says even less regarding the knowledge of the other defendants. Cf. Rosenzweig v. Azurix Corp., 332 F.3d 854, 867-68 (5th Cir.2003) (analyst report compiled after effective date of prospectus based on interviews with company management did not create inference of scienter, despite statements in report that the company's problems were present before the effective date).
To the extent plaintiff alleges that defendants knew the predicted growth in production was false or misleading because of the problems at Atwater, the argument is barred by the statute of limitations for the reasons discussed above. In any event, the complaint does not indicate which defendants knew of the well's poor performance or when they knew. Cf. Rosenzweig, 332 F.3d at 868 (no inference of scienter when allegations failed to identify who knew the information or when they knew); see also Abrams v. Baker Hughes, Inc., 292 F.3d 424, 432 (5th Cir.2002) ("A pleading of scienter may not rest on the inference that defendants must have been aware of the misstatement based on their positions within the company.").
The PSLRA provides that if a plaintiff does not meet these stringent pleading requirements, the district court "shall," on defendant's motion, "dismiss the complaint." See 15 U.S.C. § 78u-4(b)(3); Nathenson v. Zonagen Inc., 267 F.3d 400, 407 (5th Cir.2001).
For all of the foregoing reasons, plaintiff's claim that defendants' projection of increased production in 2011 was false or misleading fails to state a claim.
4. Defendants' Alleged Omissions Concerning the "Disguised Financings"
The Registration Statement acknowledged that "the indenture governing the notes" and ATP's "senior secured credit facility" contained covenants that "limited" ATP's ability to "incur or assume liens or additional debt."
Plaintiff alleges that this statement was false and misleading because it failed to state that in 2009 and 2010, defendants had engaged in "disguised financings" that caused ATP to be in violation of its credit and debt agreements as of the Effective Date, placing it at risk of default.
This claim is without merit. The Prospectus stated:
We have granted and may grant in the future overriding royalty interests in the form of net profit interests and other similar long-term obligations with respect to certain of our oil and gas properties which constitute Collateral securing the notes and the related guarantees, which have the effect of reducing the value of such Collateral to the extent of such net profit interests and which could adversely affect the ability of the collateral agent, the trustee under the indenture or the holders of the notes to realize or foreclose on such Collateral.
At December 31, 2008 and 2009 and at September 30, 2010, we had net profits interests and other similar long-term obligations (including vendor deferrals and dollar-denominated overriding royalty interests) of $2.6 million, $274.9 million, and $495.2 million, respectively. . . .
Likewise, ATP's 2009 10-K and September 30, 2010 10-Q, both of which were incorporated into the Prospectus by reference,
Even accepting as true plaintiff's conclusory allegation that the financing arrangements violated ATP's credit agreements and that ATP should have disclosed this fact, the claim is barred by the one-year statute of limitations. As discussed above, the Prospectus, 2009 10-K, and September 2010 10-Q disclosed the financing arrangements. Likewise, the Prospectus incorporated by reference ATP's April 29, 2010 and June 24, 2010 8-Ks, which contained the indenture governing the Notes and the senior secured credit facility referred to in the Prospectus.
5. ATP's Alleged Environmental Violations
The Registration Statement incorporated by reference ATP's Form 10-Q for the period ending September 30, 2010, which disclosed that ATP's new credit facility "contains an event of default if there has occurred a material adverse change with respect to the Company's compliance with environmental requirements and applicable laws and regulations." The Prospectus also included "environmental accidents or hazards" in a list of operating risks facing the oil and gas industry as a whole.
With respect to the 10-Q's statement about the risk of default, plaintiff conceded both in the briefing and at oral argument that ATP's creditors never found the company to be in violation of its debt agreements based on any alleged environmental regulations. In other words, the harm plaintiff feared would result from the failure to disclose the alleged violations never actually materialized. Again, the absence of loss causation is an affirmative defense to a Securities Act claim, 15 U.S.C. § 77k(e); In re WorldCom, Inc. Sec. Litig., 388 F.Supp.2d at 346, and dismissal is appropriate when the defense appears on the face of the pleadings, Miller, 726 F.3d at 726. Accordingly, the lack of loss causation bars plaintiff's claim to the extent it is based on the statement in the Form 10-Q.
Plaintiff also fails to state a claim based on the boilerplate language about environmental risks facing the oil and gas industry. The parties' briefs point to a number of cases reaching conflicting conclusions as to whether a forward-looking recitation of risks can result in liability when those risks have already materialized. See In re Facebook, Inc., IPO Sec. & Derivative Litig., 986 F.Supp.2d 524, 543-44 (S.D.N.Y. 2014) (collecting cases and concluding that "there is conflicting authority on the issue").
When an issuer reveals a firmspecific risk and asserts that it "may" affect the company's financial condition despite knowing that it already has done so, a stronger case exists for imposing liability. See In re Facebook, Inc., IPO Sec. & Derivative Litig., 986 F.Supp.2d 487, 516-17 (S.D.N.Y.2013) (risk warnings misleadingly represented that increased mobile usage and the company's product decisions could negatively impact revenues and revenue growth, when in fact they already had).
On the other hand, when the statement in question is merely a boilerplate list of risks affecting an industry as a whole, it is unlikely that a reasonable investor would interpret the list as an assurance of regulatory compliance. On this point, In re FBR Inc. Securities Litigation is instructive. There, the Court first questioned the notion that cautionary statements by themselves should support a claim for securities fraud. 544 F.Supp.2d 346, 360-61 (S.D.N.Y.2008). "Rather, courts generally assess cautionary language to determine whether that language insulates a defendant from liability under the `bespeaks caution' doctrine."
Id.; see also In re LeapFrog Enters., Inc. Sec. Litig., 527 F.Supp.2d 1033, 1048-49 & n. 13 (N.D.Cal.2007) (finding, on a motion to dismiss, that the disclosure of standard market risk factors was not misleading); Zeid v. Kimberley, 930 F.Supp. 431 (N.D.Cal.1996) ("boilerplate" warnings of market risk factors not actionable as a matter of law).
The full list of risks in ATP's Prospectus reads:
No reasonable investor would interpret this list as an assurance of compliance with regulations intended to manage the included risks. This is especially true considering the list mentions environmental "accidents or hazards"—not the violation of environmental regulations—as an industry-specific risk. Accordingly, plaintiff fails to state a claim that the list was false or misleading.
6. Claim that ATP's Risk Disclosures Were Themselves Misleading
Plaintiff devotes a separate section of the Amended Complaint to reiterating that certain risk disclosures relating to the issues discussed in subsections 1-5 were themselves misleading because they warned of risks that had already transpired. Each of these four "boilerplate" risk disclosures was addressed in the corresponding subsection above. Accordingly, this claim warrants no further discussion.
7. Requirement that Plaintiffs Plead Reliance With Respect to the Purchase of Certain Notes
The Securities Act provides that a when an investor purchases a security
Defendants point out that Named Plaintiff Firefighters and other putative class members purchased Notes after ATP's 2011 Form 10-K was released on March 15, 2012. Accordingly, they argue, it was required—and failed—to plead reliance on the alleged misstatements and omissions in the Registration Statement. The Registration Statement indicated that there was no active trading market for the Notes as of the Effective Date and that ATP did not plan to list them on any securities exchange.
Confusingly, defendants' argument addresses perceived deficiencies in Firefighters' original complaint, which was superceded by Lead Plaintiff Plumbers' Amended Complaint even before the filing of defendants' motions to dismiss. As the author of the Amended Complaint, Lead Plaintiff Plumbers contends that it "acquired Notes
Certain class members, including Named Plaintiff Firefighters, appear to have purchased Notes after March 15, 2012. This fact may prove problematic at the class certification stage, but it serves as no basis for dismissal.
B. Plaintiff's Section 12 Claim
Section 12 of the Securities Act permits a purchaser to rescind a securities sale, whether or not the security is registered, if it is sold by means of a prospectus containing a material misstatement or omission. See 15 U.S.C. § 771. The purchaser may recover against the immediate seller only. 15 U.S.C. § 771 (a)(2); Rosenzweig, 332 F.3d at 861. Plaintiff relies on the same alleged misstatements and omissions for both their Section 11 and Section 12 claims. Accordingly, this claim survives only to the extent that plaintiff's Section 11 claim survives. Because the Section 12 claim is derivative of plaintiff's Section 11 claim, and because the Court is allowing plaintiff to re-plead certain portions of the Section 11 claim, defendants' argument in favor of dismissing the Section 12 claim merits discussion. The Court concludes that plaintiff has failed to state a claim that defendants violated Section 12 of the Act.
The Supreme Court has interpreted the statute's reference to the "seller" of the security to mean either an "owner who passed title, or other interests in the security, to the buyer for value," or a person
Plaintiff does not argue that the individual defendants passed title to the buyers. Moreover, the Exchange expired on January 28, 2011, meaning any Notes purchased after that date would have been acquired on the secondary market. All of Lead Plaintiff's notes were purchased on or after that date.
Citing a number of district court opinions from outside this circuit, plaintiff argues that merely signing the Registration Statement qualifies as "solicitation" sufficient to render the defendants sellers under Section 12. Plaintiff further argues that defendants' role in the Exchange went beyond merely signing the document, as they were obligated by the terms of the Registration Statement to use their "commercially reasonable efforts to file the registration statement" and make it effective, as well as to "cause the Exchange Offer to be consummated."
These arguments ignore Fifth Circuit precedent that clearly requires more. In Rosenzweig, the Court expressly rejected the argument that signing the Registration Statement suffices for solicitation. 332 F.3d at 871. "To count as `solicitation,' the seller must, at a minimum, directly communicate with the buyer." Id. (citing Craftmatic Sec. Litigation v. Kraftsow, 890 F.2d 628, 636 (3d Cir. 1989) ("The purchaser must demonstrate direct and active participation in the solicitation of the immediate sale to hold the issuer liable as a § 12[(a)](2) seller.") (alteration added)). Because plaintiff failed to allege that the individual defendants "assumed the `unusual' role of becoming a `vendor's agent,' or otherwise actively solicited the plaintiffs to purchase," the Court affirmed dismissal of the claim. Id. (citing Lone Star Ladies Inv. Club v. Schlotzsky's, Inc., 238 F.3d 363 (5th Cir. 2001)). See also Pinter, 486 U.S. at 650 n. 26, 108 S.Ct. 2063 (distinguishing Section 11(a), which "explicitly enumerates the various categories of persons involved in the registration process who are subject to suit," including every person who signed the registration statement, from Section 12(a), which contains no such provisions).
Plaintiff seeks to distinguish Rosenzweig and Lone Star Ladies on the ground that they involved firm commitment underwritings. This is a distinction without a difference, because the existence of a firm commitment underwriting affects only whether the issuer must have engaged in solicitation to be held liable under Section 12. It does not affect the standard for what actually qualifies as solicitation. See In re Harmonic, Inc., Sec. Litig., No. 00-2287, 2006 WL 3591148, at *14 (N.D.Cal. Dec. 11, 2006) ("[T]his distinction affects only who passes title, and does not determine what constitutes `solicitation.'"). And in this case, because all of Lead Plaintiff's Notes were acquired from third-party vendors and not from defendants, it is undisputed that defendants must have solicited the purchase of the Notes to be liable. Accordingly, plaintiff's failure to allege that defendants did anything other than sign the Registration Statement and cause it to become effective forecloses their Section 12 claim.
C. Plaintiff's Section 15 Claim
Section 15 imposes joint and several liability on defendants who are control persons liable under Sections 11 and 12.
Only the Director Defendants dispute their status as control persons. For the purposes of the securities laws, "control" means "possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise." 17 C.F.R. § 230.405; Dennis v. Gen. Imaging, Inc., 918 F.2d 496, 509 (5th Cir.1990). In the Fifth Circuit,
In re Dynegy, Inc. Sec. Litig., 339 F.Supp.2d 804, 877 (S.D.Tex.2004) (citing G.A. Thompson & Co. v. Partridge, 636 F.2d 945, 957-958 (5th Cir.1981), and Abbott v. Equity Group, Inc., 2 F.3d 613, 619-620 (5th Cir.1993)).
While director status alone will not subject a defendant to liability under § 15, "influence over the direction of the company will." In re Dynegy, 339 F.Supp.2d at 877 (citing Dennis, 918 F.2d at 509-510). The ability to adopt bylaws and the ownership of substantial voting shares certainly would permit an individual to influence a company's policies. Accordingly, plaintiffs have alleged control person liability as to both the Officer and Director Defendants.
For the foregoing reasons, the Court GRANTS defendants' motion and DISMISSES plaintiff's claims. The following Section 11 claims are dismissed WITH PREJUDICE: (1) that the defendants violated Item 303 by failing to disclose the alleged problems at the Atwater well; (2) that the proved oil and gas reserves as reported by ATP were false and misleading; (3) that ATP's forecast of "a substantial increase in production over the next year as development wells are brought to production" was false or misleading because defendants failed to disclose the alleged problems at Atwater; (4) that defendants failed to disclose that ATP was in violation of its credit and debt agreements due to "disguised financings" with various entities; (5) that defendants failed to disclose that ATP was operating in violation of U.S. environmental laws; and (6) that the boilerplate "risk disclosures" utilized in the Registration Statement were themselves misleading. The Court also dismisses plaintiff's Section 12 claim WITH PREJUDICE. The following claims are dismissed WITHOUT PREJUDICE: (1)
To the extent the Court has granted leave to amend, the amended complaint must be filed within 21 days of the entry of this order.
The parties dispute whether Merck's holding also applies to the statute of limitations governing Securities Act claims. The issue has not been addressed in this Circuit and has been a source of considerable disagreement in others. See NECA-IBEW Pension Trust Fund v. Bank of Am. Corp., No. 10-440, 2013 WL 620257, at *6 (S.D.N.Y. Feb. 15, 2013) ("District Judges within this District are not only split on whether Merck and City of Pontiac are applicable to claims brought under the Securities Act, they are even split on which view is the majority view.") (collecting cases). At least one district court in this circuit has implicitly concluded that Merck's holding does not apply to Securities Act claims. See In re Franklin, 782 F.Supp.2d at 383-84 (applying Merck's standard to plaintiffs' Section 10(b) claims, but applying the traditional inquiry notice standard to their Section 11 claims). Courts taking this position typically do so because unlike the Exchange Act's limitations provision, which states that the clock begins to run only upon discovery of the "facts constituting the violation," the language of the Securities Act's provision indicates that the one-year period begins as soon as a reasonably diligent plaintiff should have discovered "the untrue statement or omission." 15 U.S.C. § 77m. But the Franklin court emphasized that Merck's rationale for treating Exchange Act claims differently was that an Exchange Act plaintiff must provide evidence of scienter. Id. at 383. This would suggest that when Securities Act claims also require evidence of scienter (as plaintiff's Atwater claim would here if based on an alleged violation of Item 303), they, too, might be subject to the discovery rule articulated in Merck.
The Court need not resolve this question today. As explained below, the disclosures that should have put plaintiff on notice of Atwater's poor performance also serve as evidence of the defendants' awareness of the well's declining production.
Although plaintiff does not appear to dispute the accuracy of the reported 17% increase in overall production, it argues that "factual determinations regarding to what extent defendants' projections were indeed realized. . . are, like so many of defendants' contentions, inappropriate for resolution on a motion to dismiss." The 17% increase was reported in ATP's publicly filed 2011 Form 10-K, a document which "may be considered only for the purpose of determining what statements [it] contain[s], and not for proving the truth of [its] contents." In re Franklin Bank Corp. Sec. Litig., 782 F.Supp.2d at 384-85. Absent a concession from plaintiff that the reported 17% increase is accurate, the Court cannot dismiss on this basis without converting the motion into one for summary judgment, which it is not prepared to do. Nevertheless, to the extent that production did in fact increase in 2011, the absence of loss causation would be fatal to this claim on summary judgment.