Citations
- 336 F. Supp. 3d 196
Full opinion text
VICTOR MARRERO, United States District Judge.
Lead Plaintiff Kapitalforeningen Laegernes Invest ("Kapitalforeningen") brings this putative class action on behalf of itself and other stock purchasers and acquirers of defendant United Technologies Corp.'s ("UTC") stock. Kapitalforeningen alleges that UTC and its senior executives made materially false and misleading statements and omissions in violation of Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78a et seq., about UTC's business and projected earnings per share for the 2015 fiscal year. UTC and the individually-named senior executive defendants, Gregory Hayes ("Hayes"), Akhil Johri ("Johri"), Alain Bellemare ("Bellemare"), David Gitlin ("Gitlin") and Geraud Darnis ("Darnis," collectively with the senior executives, the "Executive Defendants" and together with UTC, the "Defendants") have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)") to dismiss the suit for failing to state a claim. ("Motion to Dismiss," Dkt. No. 41.) Defendants argue that the alleged misstatements are either forward-looking statements protected under the Private Securities Litigation Reform Act ("PSLRA") safe harbor or non-actionable opinion statements. Defendants also argue that Kapitalforeningen does not adequately plead scienter.
After Defendants filed the Motion to Dismiss, but before the Motion to Dismiss was ruled on, Kapitalforeningen filed the now-operative second amended complaint. ("Second Amended Complaint," Dkt. No. 45.) The Court now addresses Defendants' letter motion seeking to renew the Motion to Dismiss, but now as to the Second Amended Complaint. (See "Def. Feb. 6 Letter.") For the reasons discussed below, Defendants' Motion to Dismiss is GRANTED.
I. BACKGROUND
A. JUDICIAL NOTICE OF DOCUMENTS
This case involves statements made by Defendants in calls with investors and in filings with the Securities and Exchange Commission ("SEC") regarding UTC's profitability between December 11, 2014 and July 20, 2015 (the "Class Period"). Only parts of those statements are quoted in the Second Amended Complaint. Therefore, as an initial matter, the background of this case depends partly on whether and how the Court relies on documents other than the Second Amended Complaint. Of course, at this stage in the proceedings, the Court takes all well-pleaded facts in the Second Amended Complaint as true. See, e.g., Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008). However, in securities cases involving misrepresentation or misstatement claims, courts in the Second Circuit often take judicial notice of documents filed with the SEC " 'only to determine what the documents stated,' and 'not to prove the truth of their contents.' " Sharette v. Credit Suisse Int'l, 127 F.Supp.3d 60, 75 (S.D.N.Y. 2015) (quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) ). For the same purpose, courts in this district also take judicial notice of transcripts of companies' earnings calls. See, e.g., Dekalb Cty. Emps.' Ret. Sys. v. Controladora Vuela Compania De Aviacion, S.A.B. de C.V., No. 15 Civ. 1337, 2016 WL 3685089, at *1 n.2 (S.D.N.Y. July 6, 2016).
Defendants have provided numerous SEC filings and earnings call transcripts for the Court's consideration. Many of those filings are quoted or referred to by Kapitalforeningen in the Second Amended Complaint. It is therefore appropriate for the Court to take judicial notice of such documents and to consider them in adjudicating the Motion to Dismiss, examining the documents only to determine what statements they contain rather than to prove the truth of the documents' contents. Kapitalforeningen has been "put on notice by [ ] [D]efendants' proffer of the documents that the district court might consider them," Kramer v. Time Warner, 937 F.2d 767, 774 (2d Cir. 1991), and has neither objected to the Court taking judicial notice of the documents nor contested their authenticity in any way.
Defendants have also asked the Court not to credit certain allegations about DTC's profitability and business that are contradicted by statements in the SEC filings, relying upon NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 149 n.1 (2d Cir. 2012) ("We assume those facts [in the complaint] to be true unless conclusory or contradicted by more specific allegations or documentary evidence." (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ) ).
Such an approach would be in direct contravention of the mandate from Roth to not consider the truth of the contents in SEC filings in these types of cases. Because Roth has been reaffirmed time and again by courts in this district, see, e.g., Ong v. Chipotle Mexican Grill, Inc., 294 F.Supp.3d 199, 223 (S.D.N.Y. 2018), and the Court of Appeals for the Second Circuit, see, e.g., Morrison v. Eminence Partners II, L.P., 714 F. App'x 14, 18 n.3 (2d Cir. 2017), the Court rejects Defendants' request.
Thus, except as otherwise noted, the factual background derives from the Second Amended Complaint and the facts pleaded therein, which the Court accepts as true for the purposes of ruling on the Motion to Dismiss. See Spool, 520 F.3d at 183.
B. FACTUAL BACKGROUND
1. UTC's Business and Defendants
UTC is a conglomerate technology and industrial company providing products for aerospace and building industries worldwide. By 2015, it employed hundreds of thousands of employees working on items such as plane parts and engines, helicopters, elevator systems, HVAC solutions and more.
Those separate businesses have specific subdivisions at UTC. Through some reorganizations before, during, and after the Class Period, the names and reporting structures for the subdivided businesses changed nominally but not much substantively. In relation to the Executive Defendants: Hayes is UTC's CEO, and was newly-appointed to that position shortly before the Class Period. He is self-described as "a naturally curious guy" and promised to "ask a lot of questions" upon taking the role. (Second Amended Complaint ¶¶ 5, 203.) Johri returned to UTC in January 2015 as its CFO. (See id. ¶ 22.) Darnis ran a group known as "UTC Building & Industrial Systems" which encompassed (1) UTC's HVAC business known as Climate Controls & Security; and (2) Otis Elevator Company ("Otis"). (See id. ¶ 25.) Until 2015, Bellemare led UTC's Propulsion & Aerospace Systems, which encompassed (1) Pratt & Whitney; and (2) UTC Aerospace Systems ("UTAS"). (See id. ¶¶ 23, 33.) Throughout the Class Period, UTAS and its predecessors have been led at least in part by Gitlin. (See id. ¶¶ 24, 34-36.) Some of these subdivisions are quite large. In 2015, UTAS - which provides aerospace supplies and products - accounted for about $1.9 billion, or 25% of UTC's profits, and Otis accounted for $2.3 billion, or 32% of UTC's profits. (See id. ¶ 32.)
Working in these varied businesses has generally been a profitable enterprise for UTC. In 2014, UTC reported earnings per share ("EPS") of $6.80 on sales of over $65 billion - increases of 9% and 4% from 2013, respectively. (See"Form 8-K, Jan. 26, 2015," Dkt. No. 43 Ex. 2 at 7.)
However, the 2015 fiscal year was a bit bumpier than 2014. Although still profitable, UTC reported earnings per share of $6.30 on sales of $56.1 billion. (See"Form 8-K, Jan. 27, 2016," Dkt. No. 43 Ex. 14 at 7.) This drop stemmed largely from difficulties in two specific subdivisions: UTAS and Otis. (Second Amended Complaint ¶ 2.) UTAS had difficulties regarding its "commercial aftermarket sales." (Id. ) This is the market for replacement parts for aircraft after their sale to the consumer. Separately, Otis had difficulty with expanding its elevator business in China. (Id. )
Relying on the statements made by former employees of UTC and its subsidiaries, Kapitalforeningen alleges that these difficulties were communicated to and well-known by the Executive Defendants going into 2015. However, despite the alleged advanced warnings of these difficulties, according to Kapitalforeningen, Defendants repeatedly provided guidance to investors that UTC expected conservative growth across the company in 2015, including for the UTAS and Otis businesses. Kapitalforeningen alleges that these statements about UTC's 2015 projected financial targets were misleading and part of a "campaign to mislead investors as to UTC's business condition and future prospects." (Id. ¶ 3.)
2. Defendants' Allegedly Misleading Statements
i. December 11, 2014 Statements
On December 11, 2014, Hayes reviewed the preliminary 2014 results and initial targets for 2015 in a call with investors. (Id. ¶ 107.) For 2015, Hayes projected "earnings per share of somewhere between $7.00 and $7.20, that's 3% to 6% growth." (Id. ¶¶ 107-08.) He cautioned that "the business unit plans ... are challenging" but also "achievable." (Id. ¶ 108.) Bellemare, president of a subdivision encompassing UTAS at that time, also projected that for UTAS, "[w]e expect very solid conversion on strong commercial [original equipment] and aftermarket volume.... So for UTAS, we see sales up mid-single digit and earnings up $225 million to $275 million." (Id. ¶ 109.)
For Otis, Darnis presented that "[w]e expect revenue to grow in all segments and geographies, and I'd say, upper end of the mid-single digit, call it 5% to 6%." (Id. ¶ 111.) He also said that "after several years of flat performance and declining share, Otis trajectory is trending positive." (Id. ¶ 112.) Analysts then asked for a bit more guidance on Otis's performance in China. In response, Hayes explained that he expected the conversion of backlogged orders - orders placed in prior periods for which customers have not fully paid yet - to provide growth, and he also offered that "I think the Chinese government will do what's necessary to support that growth." (Id. ¶¶ 34, 114.)
Darnis echoed Hayes's thoughts. For 2015, he anticipated "10% revenue growth in China" based on converting backlogged orders and some order growth. (Id. ¶ 114.) He recognized that "China has been slowing" and that Otis was "flat" for the second, third, and likely fourth quarters of 2014. (Id. ) He went further to point out that a "question mark ... we're going to be watching closely" is that "China is clearly slowing down, and we're seeing that, and slowdown both in the backlog conversion and also the order rates." (See"Earnings Call Transcript, December 11, 2014," Dkt. No. 43 Ex. 3 at 12.)
ii. January 26, 2015 Statements
A month later, UTC presented its final 2014 financial picture and revised its 2015 outlook. UTC revised its 2015 forecast downward from between $7.00 and $7.20 to $6.85 to $7.05 per share. (Second Amended Complaint ¶ 121.) UTC changed its guidance due to a strengthening U.S. dollar and a falling discount rate for pension expenses. (Id. ) Hayes still expressed that there was "momentum" heading into 2015, and that the "business fundamentals and operational expectations have not changed." (Id. ¶ 122.)
After UTC's Director of Investor Relations reported that UTAS aftermarket sales increased by 5% in the 2014 fourth quarter compared to 2013, he was asked about how the reported 5% growth compared to the projected high single-digit growth guidance for UTAS for 2015. (See"Earnings Call Transcript, January 26, 2015," Dkt. No. 43 Ex. 4 at 4, 11; Second Amended Complaint ¶ 124.) Johri explained that the 2013 fourth quarter was "exceptionally strong" in that it rose 17% compared to the year before, so 5% growth on top of that for 2014 was "really not a change in our expectations" for 2015. (Earnings Call Transcript, January 26, 2015 at 11.)
Turning to Otis, Hayes was asked by an analyst whether the 10% growth for China was "still realistic." (Id. at 13.) Hayes said that "[i]t's certainly within the realm of possibility" and that he "wouldn't give up on this." (Id.; Second Amended Complaint ¶ 125.) He reiterated his hopes from December 2014 for converting order backlogs and additional order growth and pointed out that "[w]e've seen some [Chinese government] stimulus measures take hold, seen some bank lending regulations ease a little bit to try and, again, reinvigorate the property market." (Second Amended Complaint ¶ 125.)
iii. February 18, 2015 Statements
Only a few weeks later, speaking at Barclays' Industrial Select Conference, Hayes reaffirmed that UTC was "on the right track" to meet its revised guidance and expected "commercial businesses to grow 5% to 6% organically." (Id. ¶¶ 131-32.)
iv. March 12, 2015 Statements and Darnis's Stock Sale
The following month, UTC held its 2015 annual investor analyst meeting. (Id. ¶ 136.) Although Hayes explained there was "no change" to the prior guidance, UTC cautioned investors repeatedly throughout.
For UTAS, Gitlin explained that "commercial aftermarket sales and orders were a bit weaker than we expected. So commercial aftermarket is a watch item for us in the first quarter." (See"Investor Call Transcript, March 12, 2015," Dkt. No. 43 Ex. 5 at 12.) He also provided details on what led to this decline: there were "fewer new 787 operators" and airlines were being "very disciplined" and "not necessarily ordering more parts or provisioning." (Id. at 12-13.) Gitlin still anticipated that UTAS would meet "full-year expectations" but it was based, in part, on the expectation of being "a bit back-end loaded." (Id.; Second Amended Complaint ¶ 137.) Ultimately, Gitlin said that "[c]ommercial aftermarket fundamentals are strong" and "we should see continued strong commercial aftermarket growth." (Second Amended Complaint ¶ 139.)
There was similar caution about the Otis business. Darnis began by noting that "after several years of flat performance and some share loss, the Otis trajectory is turning positive." (Id.; Investor Call Transcript, March 12, 2015 at 29.) But this was accompanied by "some challenges ... [because] the growth of the China elevator market ... is slowing [as] evidenced by our slower order growth over the last three quarters." (Investor Call Transcript, March 12, 2015 at 29.) He continued by remarking that these challenges "are the largest risk to our 2015 expectation." (Id. ) Still, Darnis thought Otis would hit its 2015 targets because, after a "soft" first quarter, it would "see some improvement throughout the year." (Id. at 30.) Overall, Darnis said he felt "good that, overall, for the year, we're going to end up in our mid-single digit [sales growth] range." (Second Amended Complaint ¶ 140.) This was because "the momentum on share has turned." (Id. at 23; Second Amended Complaint ¶ 140.)
Analysts and investors asked follow up questions about the 2016 prospects in China. Darnis explained that for 2015, "we've assumed we're going to grow orders at a rate of GDP" and that if there were no "growth in orders going to 2016" then there would be "no growth on the sales side" but that it was "not really going to be an issue for" 2015. (Id. ¶ 142; Investor Call Transcript, March 12, 2015 at 38.) Finally, Johri concluded by stating that UTC anticipated being at the low end of earnings per share growth of 0% to 3%. (Investor Call Transcript, March 12, 2015 at 40.)
One day after the analyst meeting, Darnis exercised options to acquire more than 300,000 shares of UTC stock and immediately sold them for more than a $19 million profit. (Second Amended Complaint ¶ 215.)
v. March 18, 2015 Statements
Only a few days after the conference, Johri spoke at the Bank of America Merrill Lynch Global Industrials Conference. He affirmed that "2015 is on track of what we said in January" and that "operationally, everything, [is] as we expected, things [are] moving along exactly in line with what we thought." (Id. ¶ 149.) He was also asked by analysts about the downturn in construction in China, and stated that "it's not an issue for 2015 as much" given the order backlog. (Id. ¶ 150.)
vi. April 21, 2015 Statements
UTC presented its 2015 first quarter results about a month later. It announced that sales grew about 3% over the prior year and reaffirmed its full-year guidance. (Id. ¶ 154.) In its accompanying press release, Hayes stated that "the fundamentals of all of our businesses remained solid." (Id. ) He noted that "commercial aerospace aftermarket growth was slower ... than we anticipate for the year." (Id. ) On UTAS, Johri similarly noted the "soft start" to the aftermarket sales for the year before reaffirming the prior guidance. (Id. ¶ 156.) Johri also touched on Otis and stated that they "feel we can get to the low end of the range at least." (Id. ¶ 157.) He said they would be "watching" the "China new equipment market." (Id. )
vii. May 19, 2015 and June 4, 2015 Statements
At a trade group conference on May 19, 2015, Hayes once again reaffirmed "UTC's overall guidance for 2015." (Id. ¶ 168.) He said he was "not that concerned about 2015 for UTC in China" given the backlog of sales. (Id. ¶ 169.) Johri spoke at another trade group conference on June 4, 2015 and similarly reaffirmed the slow start but said that they "still feel good about where we are." (Id. ¶ 173.)
viii. June 15, 2015 Statements
The last set of alleged misstatements about UTC's performance come from the June 15, 2015 Paris Air Show Analysts and Portfolio Managers Meeting, where UTC announced its plan to divest itself of Sikorsky. (Id. ¶ 177.) After accounting for the removal of Sikorsky, UTC reiterated in a press release that it "continues to expect organic sales growth of 3% to 5%." (Id. ) As in the prior calls, Gitlin noted that he expected UTAS's "commercial aftermarket to be back-end loaded in the year." (Id. ¶ 180.)
Gitlin delved further into the commercial aftermarket numbers. He explained that the 2015 guidance was "premised on commercial aftermarket being up in the high single digits, but it will not be up in the high single digits." (See"Investor Call Transcript, June 15, 2015," Dkt. No. 43 Ex. 9 at 7.) He attributed this assessment to the market being "weaker than we expected." (Id. ) Thus, commercial aftermarket was now "the question mark for the year." (Id. ) In response to questions, Gitlin explained how commercial aftermarket is broken up into three "buckets": spare parts, provisioning, and repair. (Id. at 8.) Gitlin explained how the year had progressed in each bucket and the challenges UTC faced in provisioning and repair. (Id. )
Johri also briefly touched on Otis. He said that "China has slowed down" and that "orders continue to be down year-over-year" which was "bad news." (Id. at 15.)
3. July 21, 2015 Earnings Call and Aftermath
About a month later, UTC announced its second quarter earnings and once again lowered its guidance for 2015, down to $6.15 to $6.30. (Second Amended Complaint ¶ 177.) These revisions were made after reviewing "six months of trends" on the UTAS commercial aftermarket sales and "a slowing China" for Otis. (Id. ) Following the announcement, UTC's stock traded down 7.03%. (Id. ¶ 196.)
Hayes offered reasons for why UTC missed its financial targets. He said "[a]fter half a year of actual results, it's clear that the commercial aftermarket assumptions that our Aerospace Systems business used were overly optimistic." (Id. ¶ 190.) He also said after two years of strong growth in commercial aftermarket sales, "I think we just assumed that we were going to continue to see that kind of growth." (Id. ¶ 191.) As an example misstep, Hayes said that, based on airline plans, UTC anticipated more business related to Boeing Company's ("Boeing") 787 aircraft and also had not expected airlines to carry a "high level of inventory" for provisioning. (See"Earnings Call Transcript, July 21, 2015," Dkt. No. 43 Ex. 13 at 8-9.) Ultimately, Hayes put the onus of being "way too aggressive" on the UTAS projections on himself, stating:
But I'll tell you that probably the root cause is we pushed the Aerospace Systems guys to have a plan that was going to be up roughly $300 million for the year. And in order to do that, they had to push the aftermarket guys to deliver a much bigger number. And at the end of the day, I don't think there was a strong basis in that aftermarket assumption around how we were going to get there. They were looking at trends, but I don't think we delved deep enough into - or we didn't question enough the assumptions underlying how they were going to get there. And so I would tell you that's a miss on my part, that's a miss on our part from a planning perspective that we didn't dig deep enough last year when these plans were getting put together.
(Id. at 10-11; see also Second Amended Complaint ¶¶ 191-93.)
Johri also explained the revised guidance for Otis. Consistent with the prior calls, he said there was a "significant slowdown of construction markets in China" and a "slowdown in the rate of backlog conversion." (Second Amended Complaint ¶ 190.)
Hayes also explained why UTC did not revise its guidance in June when it announced the Sikorsky sale although it "could have." (Id. ¶¶ 104, 194) Regarding UTAS, he said that Gitlin "had some plans in the back half of June in terms of orders that he expected to get that he didn't get; and quite frankly, it was a lot worse than I think [Gitlin] or anybody else expected when he stood up in June." (Earnings Call Transcript, July 21, 2015 at 11.) And for Otis, he explained that "I think that we were still hoping for some recovery, better news out of China in June. It's a big month for orders." (Id. )
4. Analyst Reports
After many of these calls, analysts issued reports generally expressing confidence in UTC's guidance through the year and its ability to hit the projected targets. For example, after Hayes was appointed, an analyst believed Hayes "clearly examine[d] the assumptions of [UTC's] operating units." (Second Amended Complaint ¶ 5.) In March, April, and June, analysts wrote encouragingly that UTC reiterated its earnings per share guidance each time. (Id. ¶¶ 147, 160, 161, 174, 181.) However, after the final revision to UTC's guidance for the year in July, an analyst described the adjustment as "more than a major surprise." (Id. ¶ 14.)
5. Former Employee Reports on Difficulties
Kapitalforeningen presents ten unnamed former employees of UTC and its subsidiaries (the "Former Employees") who were involved with or had insight into UTAS and Otis difficulties during or before the Class Period. The first six Former Employees describe the difficulties relating to UTAS and aftermarket commercial sales, and the others address the difficulties facing Otis. At a high level, Kapitalforeningen alleges that UTC knew about the difficulties described below and failed to disclose them while making its earnings projections.
i. Former Employee One ("FE 1")
FE 1 is one of the main witnesses referenced in the Second Amended Complaint. FE 1 was a Senior Executive in Inertial, Control & Aircraft Management Systems ("ICAMS"), which is a unit of UTAS's Sensors and Integrated Systems division ("SIS"), for part of the Class Period, specifically from January 2013 through May 2015. (Second Amended Complaint ¶ 36.) SIS is one of eight UTAS divisions. (See "UTAS Presentation, March 12, 2015," Dkt. No. 43 Ex. 17 at 2.) As part of his role, FE 1 "was involved in preparing sales and profits projections for ICAMS." (Second Amended Complaint ¶ 37.) FE 1 reported to Brian Sartain, a vice president at SIS. (Id. ¶ 36.) Sartain, in turn, reported to SIS president Justin Keppy, who reported to and briefed some of the Executive Defendants as well as other intermediate managers. (Id. ) Thus, throughout the Class Period, at least two levels of management separated FE 1 from any Executive Defendant, specifically Bellemare and Gitlin. (See id. ¶¶ 36, 37.)
According to FE 1, the commercial aftermarket business had "deteriorated significantly" to be off by as much as 40%-50% during the 2013-2014 period compared to earlier periods. (Id. ¶ 38.) Although FE 1 worked within only one unit within one UTAS division, ICAMS was alleged to have been the "largest component of SIS sales and profits" and SIS contributed either 75% of UTAS's profit or "at least had to have been a major contributor" to UTAS's profits. (Id. ¶ 39.)
FE 1 provided a few reasons for this market deterioration. First, airlines began to stockpile inventory. (Id. ¶ 40.) Second, Boeing - a major client - launched a partnership program in 2012 requiring vendors like UTC to cut prices. (Id. ¶¶ 41-43.) Third, airlines began forming groups to pool purchasing power of spare and replacement parts, and thus obtained better prices on parts. (Id. ¶¶ 44-45.) Finally, airlines were buying more counterfeit parts, and correspondingly fewer parts from UTC. (Id. ¶¶ 46-47.)
FE 1 attended meetings within ICAMS discussing these trends and "their adverse impact on UTAS commercial aftermarket sales" and "UTAS's other business units." (Id. ¶¶ 48-49.) FE 1 recalled "discussions in 2014" among Sartain and other SIS leaders, and a meeting in March or April 2014, including both Keppy and Sartain, during which Keppy recognized these difficulties "plaguing commercial aftermarket sales." (Id. ¶ 49.) FE 1 is not alleged to have been present for this meeting.
FE 1 also discussed these difficulties with colleagues at meetings. Specifically, FE 1 regularly attended "SIS Operational Reviews" meetings, attended by members of both ICAMS and a "Maintenance, Repair and Overhaul" unit. (Id. ¶ 50.) The difficulties discussed at these meetings were eventually raised with Bellemare "and other members of UTAS Senior Corporate Leadership" through meetings that "built upon each other" in the following way: ICAMS briefed Sartain, then Sartain briefed Keppy, and finally Keppy briefed Michael Dumais (another senior manager who was a level below Gitlin), Bellemare and Gitlin. (Id. ¶ 51.) "FE 1 attended a few such briefings to Defendant Bellemare during his tenure" but it is unstated whether the difficulties were discussed at the meetings FE 1 attended. (Id. ) Keppy was separately-responsible for distilling information in months that SIS missed sales and profit targets for eventual briefing to Bellemare. (Id. ¶ 97.)
FE 1 also incorporated these difficulties into his projections for management regarding the 2015 financial targets, as did other ICAMS units. (Id. ¶ 52.) Keppy then presented these targets to Gitlin, Bellemare, and Dumais. (Id. ) However, after Keppy presented the targets, he received revised projections "rejecting" ICAMS's plans and reflecting larger increases in sales which various team members viewed as "unrealistic." (Id. ¶¶ 52-53.) Keppy eventually provided the revised projections to Sartain, who passed them on to FE 1 and his team. (Id. )
According to FE 1, employees from other SIS units reported similar frustrations with their business targets. (Id. ) Even more broadly, FE 1 believed that "UTAS's other business units also had unrealistic targets imposed upon them by UTAS management." (Id. ¶ 60.) FE 1 learned from Sartain that when a UTAS executive argued about the targets, Bellemare told him to "get on board or we will find someone who will." (Id. ¶ 54.)
ii. Former Employees Two Through Five
Kapitalforeningen includes statements from Former Employees two through five to bolster FE 1's claims. Former Employee Two ("FE 2") was a "SIS Senior Manager" during the Class Period. (Id. ¶ 45.) FE 2 described some of the same reasons why aftermarket sales were declining and how that impacted his projections that were presented to management through a similar "bottom-up" mechanism as FE 1 described. (Id. ¶¶ 45, 57.) FE 2 was not involved in any of the presentations of these projections to the Executive Defendants, but, like FE 1, FE 2 also received higher targets back from SIS senior management. (Id. ¶¶ 58, 59.) Once the targets were set, FE 2 met monthly with SIS executives "to discuss performance and variances against" those targets. (Id. ¶ 99.)
Former Employee Three ("FE 3") is described as a former "Procurement Manager" at UTAS prior to and throughout the Class Period, who corroborates FE 1's claim that counterfeits "also had a negative impact on commercial aftermarket sales." (Id. ¶ 47.) FE 3 also attended monthly "all hands" meetings on the performance of his group, where there were slides "which reflected an overall decline in UTAS commercial aftermarket performance." (Id. ¶ 95.)
Former Employee Four ("FE 4") is a "senior financial executive" within one of SIS's other units, Kidde, and stated that the targets given to him for 2015 were "unrealistic." (Id. ¶ 55.) FE 4 said that the 2015 projection process differed from the typical, historical "give-and-take" and that management threatened that those who could not hit targets would lose their jobs or be moved out of the unit. (Id. ¶ 56.) FE 4 also described the Hyperion Financial Management System, "which was the consolidator of all of UTC's financial data from around the world." (Id. ¶ 94.) According to FE 4, Kidde forecast information was put into this consolidator, which was rolled up into reports about SIS and eventually UTAS, and was available to "all C-Suite executives." (Id. )
Former Employee Five ("FE 5"), an "Aftermarket Demand Planner" also in Kidde, expressed similar negative sentiments about the 2015 targets. (Id. ¶ 55.) He too, described regular meetings and a weekly "business-in-hand" report regarding aftermarket sales that were circulated to Keppy and "SIS headquarters." (Id. ¶¶ 75-76, 210.)
iii. Former Employee Six ("FE 6") and "Pulling In" Sales
FE 6 is another key witness to the difficulties that were facing UTAS. FE 6 was a manager within the "Business Development and Strategy" group at UTAS. (Id. ¶ 61.) This group was responsible for developing the aftermarket services sales growth analysis for 2015. (Id. ) FE 6 explained that for the 2015 year, the "bottom-up" and "pressure-test [ed]" analysis projected "low to mid-single digit growth forecast for commercial aftermarket services." (Id. ¶¶ 62-64.) This projection was based on similar difficulties that FE 1 noticed, such as a "lower amount of 787 provisioning" for Boeing's 787. (Id. ) Also similar to FE 1, FE 6 explained the reporting structure whereby these projections were eventually presented to Gitlin after two or three levels of review - FE 6 was not present for the discussions with Gitlin. (Id. ¶¶ 63-65.) And again similar to FE 1 and other Former Employees, FE 6 later learned that management "rejected" his forecast. (Id. ¶ 70.)
After that, according to Kapitalforeningen "FE 6 and his staff began devising strategies to attempt to meet the management-imposed projected growth rate." (Id. ¶ 71.) This was done in part through the long-time practice of "pulling in" or accelerating sales from future quarters into the current quarter "creating the illusion of growth." (Id. ¶ 72.) FE 4 described this practice as "unsustainable" because "[w]ithout an ever-expanding future pool of sales to draw from at some point, there is nothing left to pull from." (Id. ) FE 4, FE 5, and FE 6 each reported that there existed some "pulling in" of sales in their units every quarter. (Id. ¶¶ 55, 73-74.) FE 5, who started in October 2014, specified that within his SIS unit, "for a period of time ... they were able to pull in approximately $2 million in sales from forward months into months they were short" but this stopped "during the first or second quarter of 2015." (Id. )
iv. Former Otis and Otis Subsidiary Employees
The remaining four Former Employees mentioned in the Second Amended Complaint worked for Otis or unnamed Otis subsidiaries. Kapitalforeningen alleges that they support allegations that Otis was losing market share in China through 2015 and that Otis relied upon an undisclosed and unsustainable practice of taking fake orders. Former Employee Seven ("FE 7"), a "sales contract reviewer" at Otis in Shanghai, "recalled elevator accidents" adversely affecting Otis sales. (Id. ¶ 80.) FE 7 also asserted sales declined in 2014 due to "deteriorating construction markets," and saw discounts up to 40% on contracts signed in 2014, which were larger than the 20% discount typically given. (Id. ¶¶ 81, 83.) Former Employee Eight ("FE 8") was a "senior manager" at two Otis subsidiaries and similarly recalled a loss of market shares due to accidents, which "was reported to Otis management through situation reports." (Id. ¶ 80.)
Former Employee Nine ("FE 9") was the former "head of sales" at "Otis in Shanghai, China." (Id. ¶ 81.) He also recalled a major accident impacting Otis sales and that generally sales declined in China throughout 2013 and 2014. (Id. ) FE 9 viewed Otis's products as more expensive, and inferior in terms of quality and specifications as compared to competitors' products, which made attracting new business difficult. (Id. ¶ 83.)
Former Employee Ten ("FE 10") was another sales manager in China, and recalled a market "slow down" that "senior management must" have known about given access to sales data and regular sales team meetings. (Id. ¶ 81.)
FE 7, FE 8 and FE 10 also described the practice of "Fake and Specially Approved" orders at Otis in China. "Fake" orders are, as the name implies, orders that would never be realized. (Id. ¶ 87.) "Specially Approved" orders are orders that sales people closed but for which Otis did not receive a deposit on. (Id. ¶ 88.) FE 8 estimates that "15-20%" of the order backlog "could be comprised" of fake orders. (Id. ¶ 87.) FE 7 believed there were "a lot" of "Specially Approved" orders at the end of 2014. Kapitalforeningen alleges that statements about Otis's performance were misleading in part because they failed to disclose these practices. (See, e.g., id. ¶ 118.)
C. PROCEDURAL BACKGROUND
Kapitalforeningen brought a putative class action on May 12, 2017 on behalf of stock purchasers and acquirers, and the case was assigned to the Honorable Judge John G. Koeltl. Kapitalforeningen claims Defendants made fraudulently false statements or omissions in violation of Section 10(b) ("Section 10(b)") of the Exchange Act, as well as claims against the Executive Defendants for control person liability under Section 20(a) ("Section 20(a)") of the Exchange Act. After the appointment of counsel and lead plaintiff, Kapitalforeningen filed an amended complaint in November 2017. (See Dkt. Nos. 27, 31.) Then, Defendants filed the Motion to Dismiss on December 11, 2017. (See Motion to Dismiss.) Within the next month, the case was reassigned to this Court and Kapitalforeningen filed the Second Amended Complaint.
After the filing of the Second Amended Complaint, Defendants sought permission to file a new motion to dismiss, and the Court directed them to its letter-writing practice outlined in the Court's individual rules. (See Dkt. No. 48.)
Defendants wrote to Kapitalforeningen detailing their arguments about the Second Amended Complaint's infirmities, largely reiterating the arguments in support of the Motion to Dismiss. ("Def. January 24 Letter," Dkt. No. 49.) Kapitalforeningen responded (see"Pl. January 30 Letter," Dkt. No. 50) and UTC notified the Court that the parties could not resolve their differences. ("Def. February 6 Letter," Dkt. No. 54.)
The Court now construes Defendants' letters described above as a renewed motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6).
II. LEGAL STANDARDS
A. RULE 12(B)(6) MOTION TO DISMISS
Defendants argue that the Second Amended Complaint should be dismissed because it fails to state a claim for which relief can be granted under Rule 12(b)(6).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The task of a court in ruling on a motion to dismiss is to "assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." In re Initial Pub. Offering Sec. Litig., 383 F.Supp.2d 566, 574 (S.D.N.Y. 2005) (internal quotation marks omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., No. 05 Civ. 3430, 2006 WL 1423785 (2d Cir. May 19, 2006).
The Court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, plaintiffs claiming fraud, including securities fraud cases about material misstatements and omissions, must satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) (" Rule 9(b)") by "stat[ing] with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b).
B. THE EXCHANGE ACT
Kapitalforeningen brings two claims. One is against Defendants for misrepresentations or omissions of material fact in violation of Section 10(b) of the Exchange Act and Rule 10b-5 ("Rule 10b-5") promulgated thereunder, 17 C.F.R. Section 240.10b-5. The second is brought solely against the Executive Defendants under Section 20(a) of the Exchange Act for control person liability. 15 U.S.C. § 78t(a).
Defendants argue that (1) management's projections and affirmations of guidance are forward-looking statements protected by the statutory PSLRA safe harbor and "bespeaks caution" doctrine; (2) the statements are unactionable opinion statements; and (3) Kapitalforeningen did not adequately allege scienter. (See Def. February 6 Letter; "Def. Memo," Dkt. No. 44 at 2-3.)
To successfully bring a claim under Section 10(b) and Rule 10b-5, "a plaintiff must allege that the defendant (1) made misstatements or omissions of material fact, (2) with scienter, (3) in connection with the purchase or sale of securities, (4) upon which the plaintiff relied, and (5) that the plaintiff's reliance was the proximate cause of its injury." Solow v. Citigroup, Inc., 507 F. App'x 81, 82 (2d Cir. 2013) ; see also Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008). As outlined below, certain elements of these claims are further defined by the PSLRA's amendments to the Exchange Act enacted in 1995.
"Section 20(a) of the Exchange Act imposes derivative liability on parties controlling persons who commit Exchange Act violations." In re Vivendi, S.A. Sec. Litig., 838 F.3d 223, 238 n.6 (2d Cir. 2016) (internal quotation marks omitted). "[T]o establish a prima facie case ... a plaintiff must show (1) a primary violation by the controlled person, (2) control of the primary violator by the defendant, and (3) that the defendant was, in some meaningful sense, a culpable participant in the controlled person's fraud." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir. 2007) (internal quotation marks omitted).
1. Misstatements or Omissions of Material Fact
The PSLRA requires that a complaint "specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is based on information or belief, the complaint shall state with particularity all facts on which that belief is formed." 15 U.S.C. § 78u-4(b) ; see also Rombach v. Chang, 355 F.3d 164, 172 (2d Cir. 2004).
An omission is actionable "only when the [defendant] is subject to a duty to disclose the omitted facts." In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir. 1993). Although "Rule 10b-5 imposes no duty to disclose all material, nonpublic information, once a party chooses to speak, it has a 'duty to be both accurate and complete.' " Plumbers' Union Local No. 12 Pension Fund v. Swiss Reinsurance Co., 753 F.Supp.2d 166, 180 (S.D.N.Y. 2010) (quoting Caiola v. Citibank, N.A., N.Y., 295 F.3d 312, 331 (2d Cir. 2002) ).
2. Scienter
Scienter is defined as "a mental state embracing intent to deceive, manipulate, or defraud," Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (internal quotation marks omitted). Plaintiffs must "state with particularity [the] facts giving rise to a strong inference that the defendant acted with the required state of mind. To satisfy this requirement, a complaint may (1) allege facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness, or (2) allege facts to show that defendants had both motive and opportunity to commit fraud." Rombach, 355 F.3d at 176 (internal citations and quotation marks omitted).
Ultimately, "a complaint will survive ... only if ... the inference of scienter [is at] least as compelling as any opposing inference one could draw from the facts alleged. In determining whether a strong inference exists, the allegations are not to be reviewed independently or in isolation, but the facts alleged must be taken collectively. The 'strong inference' standard is met when the inference of fraud is at least as likely as any non-culpable explanations offered." Slayton v. Am. Exp. Co., 604 F.3d 758, 766 (2d Cir. 2010) (internal citations omitted).
3. PSLRA Safe Harbor
The PSLRA also contains a safe harbor provision that raises elements of the pleading standard even higher from the requirements set out above in certain circumstances. The PSLRA safe harbor provision applies to "forward-looking statements" which include "statement[s] containing a projection of ... income (including income loss), earnings (including earnings loss) per share, ... or other financial items and a statement of future economic performance, including any such statement contained in a discussion and analysis of financial condition by the management ...." See Slayton, 604 F.3d at 766-67 (internal quotation marks omitted). Under the PSLRA, parties "shall not be liable with respect to any forward-looking statement," 15 U.S.C. Section 77z-2 (c), to the extent that they can show that: (1) the statements were accompanied by meaningful cautionary language; (2) the statements were immaterial; or (3) the plaintiff failed to prove the statements were made with actual knowledge that they were false or misleading. See Slayton, 604 F.3d at 766.
In evaluating whether cautionary language is adequate, courts must "identify the allegedly undisclosed risk and then read the allegedly fraudulent materials - including the cautionary language - to determine if a reasonable investor could have been misled into thinking that the risk that materialized and resulted in his loss did not actually exist." In re Focus Media Holding Ltd. Litig., 701 F.Supp.2d 534, 541 (S.D.N.Y. 2010) (internal quotation marks omitted); see also Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 359 (2d Cir. 2002).
4. Opinion Statements
When the alleged misstatements or omissions are made within the context of statements of opinions, plaintiffs are also required to show that "(1) the speaker d[oes] not hold the belief ... professed; (2) the fact [s] [ ] supplied in support of the belief professed are untrue; or (3) the speaker omits information that makes the statement misleading to a reasonable investor." Tongue v. Sanofi, 816 F.3d 199, 210 (2d Cir. 2016) (citing Omnicare, Inc. v. Laborers Dist. Council Contr. Indus. Pension Fund, --- U.S. ----, 135 S.Ct. 1318, 191 L.Ed.2d 253 (2015) ).
III. DISCUSSION
Kapitalforeningen alleges a "fraud by hindsight" theory of liability that the Second Circuit has repeatedly rejected. E.g., Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (Friendly, J.). This conclusion is clearest in the context of evaluating Kapitalforeningen's scienter allegations, which are insufficient to state a Section 10(b) fraud claim regardless of whether the statements at issue are classified as opinion statements, forward-looking statements, or otherwise. However, because the Court finds that nearly all the statements are also opinion statements that are not misleading, Kapitalforeningen also fails to state a claim on those grounds.
A. SCIENTER
Kapitalforeningen fails to allege particularized facts giving rise to a "strong inference" that any Defendant acted with scienter. As noted above, Kapitalforeningen must allege either (1) Defendants had both motive and opportunity to commit fraud or (2) the existence of sufficient circumstantial evidence of conscious misbehavior or recklessness. Rombach, 355 F.3d at 176.
1. Motive and Opportunity
On the first factor, "motives that are common to most corporate officers ... do not constitute motive for the purpose[ ]" of establishing scienter. ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 198 (2d Cir. 2009) (internal quotation marks omitted). The opportunity to commit fraud is generally assumed where the defendant is a corporation or corporate officer. See, e.g., In re AstraZeneca Sec. Litig., 559 F.Supp.2d 453, 468 (S.D.N.Y. 2008) ; Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 446 F.Supp.2d 163, 181 (S.D.N.Y. 2006) ("Regarding the 'opportunity' prong, courts often assume that corporations, corporate officers, and corporate directors would have the opportunity to commit fraud if they so desired."). Defendants do not contest that there was an opportunity to commit fraud. However, they argue that not only does Kapitalforeningen fail to allege any theory or motive, but Defendants actually faced the exact opposite incentives. Specifically, Defendants point out that according to SEC filings, the Executive Defendants' bonuses were tied partly to UTC's ability to hit projected earnings per share numbers, and thus were not paid out in 2015. (See Def. Memo at 28; Dkt. No. 43 Ex. 19 at 37-42.) They also argue that UTC would not have engaged in stock repurchasing if it knew the stock was inflated. (See Def. Memo at 28-29.)
Kapitalforeningen makes only one allegation, pertaining solely to Darnis (who was the leader of the subdivision containing Otis), that implicates the motive prong. At first glance, it is not trivial: Darnis sold over 300,000 shares of stock for a $19 million profit on March 13, 2015, the day after a call with analysts. (Second Amended Complaint ¶ 215.) SEC filings from the sale date show he still retained options on over 630,000 shares, which were also worth tens of millions of dollars. (See March 13, 2015 UTC Proxy Statement at 52.) Darnis is the only Executive Defendant alleged to have sold stock during the Class Period, and he announced his retirement only weeks after the Class Period ended. (Second Amended Complaint ¶ 25.)
"[T]he motive showing is generally met when corporate insiders allegedly make a misrepresentation in order to sell their own shares at a profit." ECA, Local 134 IBEW, 553 F.3d at 198 (internal quotation marks omitted). On the other hand, "a significant stock sale by just one corporate insider is insufficient to support such an inference." See, e.g., In re DRDGOLD Ltd. Sec. Litig., 472 F.Supp.2d 562, 570 (S.D.N.Y. 2007) (collecting authority); In re eSpeed, Inc. Sec. Lit., 457 F.Supp.2d 266, 291 (S.D.N.Y. 2006) ("[T]he dispositive factor [regarding motive] is that other insiders, including two other individual defendants, did not sell during the putative class period."). That situation is precisely the case here. Darnis is the only one of five Executive Defendants to have made any such sales and he still retained millions worth of stock options after his sale. This circumstance is therefore insufficient to show motive as required under the PSLRA.
Kapitalforeningen attempts to differentiate DRDGOLD by arguing that scienter can be adequately alleged even in cases with insider buying. (Pl. January 30 Letter at 3 (citing In re MF Global Holdings Ltd. Sec. Litig., 982 F.Supp.2d 277, 306, 320 (S.D.N.Y. 2013) ).) But there, the Court ultimately relied upon the conscious misbehavior or recklessness prong to support its scienter finding, not the motive prong. MF Global Holdings, 982 F.Supp.2d at 306. As discussed below, Kapitalforeningen does not adequately plead scienter under that prong either.
2. Conscious Misbehavior or Recklessness
The other way to plead scienter is to allege "conscious misbehavior or recklessness." "[T]he strength of the circumstantial allegations must be correspondingly greater if there is no motive." ECA, Local 134 IBEW, 553 F.3d at 199 (internal quotation marks omitted). Thus, a plaintiff pleading the "conscious misbehavior or recklessness" theory of scienter must allege conduct that is "highly unreasonable and which represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it." Kalnit v. Eichler, 264 F.3d 131, 142 (2d Cir. 2001) (internal quotation marks omitted).
There are at least four methods where circumstantial evidence can support an inference of scienter, including allegations that defendants "(1) benefitted in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor." Employees' Ret. Sys. of Gov't of the Virgin Islands v. Blanford, 794 F.3d 297, 306 (2d Cir. 2015) (internal quotation marks omitted).
The Court addressed the first method above in regards to motive, where it is typically assessed despite its inclusion within the conscious misbehavior or recklessness prong. E.g., ECA, Local 134, 553 F.3d at 198 ("In order to [show] motive and opportunity to defraud, [p]laintiffs must allege that [defendants] benefitted in some concrete and personal way from the purported fraud." (internal quotation marks omitted) ); Heller v. Goldin Restructuring Fund, L.P., 590 F.Supp.2d 603, 622 (S.D.N.Y. 2008) (finding motive and that defendants "benefitted in a concrete and personal way" simultaneously). Further, Kapitalforeningen makes no allegations or arguments that go to the second or fourth methods.
Turning to the third method, the Second Amended Complaint contains three categories of relevant allegations. The first category is that Defendants "admitted" that they had no factual basis for the earnings guidance. (See, e.g., Second Amended Complaint ¶¶ 211-13.) Next, Kapitalforeningen alleges that Former Employees provided contrary information indicating UTAS's and Otis's difficulties when forecasting 2015 sales figures, and Defendants received that information. (Id. ¶¶ 48-70, 94-100.) Finally, Kapitalforeningen alleges that Defendants had access to various systems and reporting mechanisms containing the relevant contrary information. (Id. ¶¶ 203-09.) These allegations, even when considered together, do not sufficiently plead scienter.
i. Category One: Hayes's Admissions
The allegations in the admissions category do not support the contention that Defendants acted with scienter when making the alleged misstatements. These allegations rely on the statements made in July 2015 when UTC lowered the guidance for the 2015 financial targets once again. These statements were made exclusively by Hayes during his evaluation of what UTC could have done to discover the issues earlier in the year. As Kapitalforeningen highlights, Hayes (and UTC) wrongly "assumed" commercial aftermarket sales would grow. (Second Amended Complaint ¶¶ 211-13.) He said he did not "think we delved deep enough" or "dig[ged] deep enough" into the assumptions of the commercial aftermarket sales growth. (Id. ) Kapitalforeningen alleges that these are admissions that Defendants "necessarily knew they had not questioned the underlying assumptions or delved into how UTC was actually going to achieve the unrealistic guidance." (Pl. January 30 Letter at 3.)
But these are retrospective observations that "became apparent" to Hayes only after he "met with the folks at UTAS and [ ] met with the Otis team." (Earnings Call Transcript, July 21, 2015 at 7.) Thus, Hayes was not admitting that when he spoke in December 2014 or January 2015 that he knew at that time that UTC had not "delv[ed] deep enough," nor is it reasonable to infer he meant to say that. The closest statement to such an admission is that Hayes said UTC "could have" adjusted the 2015 guidance during the June 15, 2015 Sikorsky announcement. (Second Amended Complaint ¶ 212.) But even that ambiguous statement ignores the context that Defendants were still expecting orders "in the back half of June" which did not materialize in an unexpected way. (Earnings Call Transcript, July 21, 2015 at 11.)
None of these statements are actual admissions of prior knowledge or reckless conduct. Arguably, at best they may be relevant to an allegation of negligent conduct. In re Nokia Oyj (Nokia Corp.) Sec. Litig. is instructive in this regard. Defendant Nokia - at the time a large cell phone manufacturer - and its executives faced similar false statement claims under Section 10(b) and Rule 10b-5. See 423 F.Supp.2d 364 (S.D.N.Y. 2006). After a few quarters of growing sales in the early 2000s, Nokia projected continued increases in sales for its next quarter. Id. at 359-60. In fact, sales declined that quarter, the stock dropped 16% in a day, and defendants were accused of withholding information that its recent positive performance and sales growth was "aberrant" and likely to end soon. Id. In support of their scienter allegations, plaintiffs alleged that Nokia's CEO "admitted" that he knew Nokia's products were "not competitive" because the CEO stated "we saw early on last year that what might be happening is that we are not fully competitive, so certainly we have started to take measures." Id. at 404-05.
The Honorable Judge Kenneth Karas of this Court held that this statement did not support scienter. Id. Instead, the "statement merely suggests that, at the time, there was some level of internal concern that a segment of Nokia's products were not as competitive as Nokia wished." Id. at 405. The court reasoned that, because the defendants there "took action ... to fix some of its problems" they had cause to be optimistic and "the fact that, in retrospect, such optimism may have been too optimistic does not retroactively make Nokia's prior statements knowingly false, in particular when defendants' wishful statements were not worded as guarantees." Id.
Unlike the Nokia CEO who acknowledged doubts existing in prior periods, Hayes never made any admissions of doubts as to his prior opinions. Instead, Hayes's statements during the Class Period and alleged admissions show, at most, that UTC and the Executive Defendants similarly shared both concerns and optimism about the business. Like the Nokia CEO, Hayes and the other Executive Defendants had concerns about commercial aftermarket sales during the first half of the year - concerns which they shared with analysts as they uncovered information. But the Executive Defendants were also similarly optimistic about orders in the second half of the year that never materialized. Holding these two beliefs does not make their statements about the projected sales knowingly or recklessly false. Thus, the Court finds that the allegations in the admissions category fail to allege scienter.
ii. Categories Two and Three: Former Employees and Reporting Mechanisms
In support of the second and third categories of allegations, Kapitalforeningen argues that Defendants had access to or received the various opinions, reports and systems that the Former Employees describe in the Second Amended Complaint, and that these items contained facts contrary to Defendants' public statements about UTC's performance. (Second Amended Complaint ¶¶ 94-100, 201, 203-210.)
As a threshold matter, Defendants ask the Court to discredit or discount the Former Employees due essentially to their anonymity. (Def. Memo at 23.) That is not the standard in the Second Circuit. Allegations may rest on information provided by anonymous sources, like the Former Employees, when they "are described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possesses the information alleged." Novak v. Kasaks, 216 F.3d 300, 314 (2d Cir. 2000). Pursuant to Rule 9, when alleging the existence of reports and meetings containing contrary facts, plaintiffs "must specifically identify the reports or statements containing this information." Id. at 309. For example, the Court has previously found scienter when confidential witnesses (1) circulated reports with the relevant contrary information directly to defendants; (2) attended meetings about the issues with defendants or immediate subordinates; and (3) supported allegations of "widespread knowledge" of problems. See Cornwell v. Credit Suisse Grp., 689 F.Supp.2d 629, 637-39 (S.D.N.Y. 2010) ; see also San Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Companies, Inc., 75 F.3d 801, 812 (2d Cir. 1996) (quoting similar language in First Circuit and Seventh Circuit cases regarding the specificity of information complaints must contain about reports and figures to state a claim); Freudenberg v. E*Trade Fin. Corp., 712 F.Supp.2d 171, 196 (S.D.N.Y. 2010) (finding scienter adequately pled when confidential witnesses "had first-hand interactions with the defendants" including reporting of specific risks); DRDGOLD, 472 F.Supp.2d at 572 (finding no scienter and identifying no conversations or reports "reviewed by any specific individuals ... on any specific dates" containing contrary facts); Steinberg v. Ericsson LM Tel. Co., No. 07 Civ. 9615, 2008 WL 5170640, at *13 (S.D.N.Y. Dec. 10, 2008) (finding no scienter in part because "all three of [p]laintiff's confidential sources were mid-level managers in the United States who claim no contacts or communications with [d]efendants, or even with [defendant's] European corporate headquarters").
Turning to the allegations themselves, the second and third categories of scienter allegations are deficient in the same two respects. To start, Kapitalforeningen does not plausibly allege that the specific "contrary facts" it describes were ever communicated to Defendants or accessible to them. And equally critically, even if the information reached Defendants, there are no plausible allegations that the information was contrary to public statements in light of UTC's size and structure.
To address the allegations pertaining to Otis first, there are no allegations that any of the exclusively Chinese-based Former Employees' knowledge about construction market slowdowns, Fake orders, or Specially-Approved orders were communicated to any Executive Defendant. There are only generic statements that information was "reported to Otis management" (Second Amended Complaint ¶ 80) and that "senior management" had access to sales data (id. ¶ 81). There are no descriptions of when these reports would have been provided to the Executive Defendants, what they contained, or on what systems they existed. These generic statements fall far short of the requirements of Rule 9(b).
The allegations against UTAS, albeit stronger, also fail to plead scienter sufficiently. No Former Employee is alleged to have circulated a report on the UTC's alleged difficulties directly to any Executive Defendant. There is no compelling allegation that any Former Employee: attended a meeting with any Executive Defendant or even