Professional Documents
Culture Documents
No. 22-1048
Debtors,
________________________________________
Plaintiffs, Appellants,
Plaintiff,
v.
Defendants, Appellees,
CHRISTIAN SOBRINO,
Defendant.
Before
Juan Carlos Deliz, with whom DBPR Legal, LLC was on brief,
for appellee Corporación Pública para la Supervision y Seguro de
Cooperativas de Puerto Rico.
According to the Credit Unions, the defendants knew -- but did not
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the Puerto Rico Oversight, Management, and Stability Act
district court dismissed the Credit Unions' claims, and, for the
a motion to dismiss, "[a]ll facts are taken from the complaint and
n.2 (1st Cir. 2022) (citing O'Brien v. Deutsche Bank Nat'l Tr.
Co., 948 F.3d 31, 35 (1st Cir. 2020)). We may also consider
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brief introduction of the defendants that the Credit Unions (also
claims.
Credit Unions must comply with the circular letters, which are
was in charge of all bond and debt issued by the Commonwealth and
Debt Securities that were offered and sold to [the Credit Unions]."
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Commonwealth's financial situation from 2009 onwards. The GDB
taking of their cash and liquid funds" all the while knowing the
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2009, COSSEC "authorized the purchase of . . . bonds currently
that "cooperatives may purchase" the bonds, "as long as they ensure
that at the time of purchase" the bonds are rated within a certain
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the bonds' classification drop after purchase, the letter
in additional instruments."
million dollars from [them]" and that, by August 2017, the Credit
contend that "[t]he taking of the cash, capital and liquid reserves
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of the [Credit Unions] through the improper use of COSSEC's
Rico's public finances" and that the GDB knowingly exposed the
and COSSEC were derelict in their duties and failed to help devise
of it. The Credit Unions further assert that Circular Letter 2012-
capital, and liquidity, market value losses for the debt securities
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In March 2018, the Credit Unions initiated this
COSSEC, the GDB, the GDB Debt Recovery Authority, the members of
the GDB Debt Recovery Authority's Board of Trustees, the FOMB, the
individual members of the FOMB, the Puerto Rico Fiscal Agency and
U.S.C. §§ 105 and 944, on the basis that the defendants' conduct,
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statutes related to securities, negligence, fiduciary obligation,
and fraud.7
the counts for failure to state claims upon which relief can be
12(b)(1) on the basis that the claims were either not yet ripe or
extant claims.8 The SAC sets forth seven counts against the various
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defendants, specifically (and as relevant to this appeal) the SAC
contends that:
• COFINA, HTA, ERS, and PREPA (through the GDB as each agency's
(count 2);
• the Commonwealth, through the GDB and COSSEC and the circular
3);
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liable under the general Puerto Rico torts statute (count 5);
and
6).9
Again, the defendants filed motions to dismiss the entire SAC for
the Commonwealth, COSSEC, the GDB, and the GDB Debt Recovery
Authority.
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A SET OF LENSES FOR OUR REVIEW
P.R., 919 F.3d 617, 622 (1st Cir. 2019). "We may affirm the
"whether all the facts alleged, when viewed in the light most
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Katz v. Belveron Real Est. Partners, LLC, 28 F.4th 300, 308 (1st
to specify the who, what, where, and when of the allegedly false
Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004) (citing Powers v.
Bos. Cooper Corp., 926 F.2d 109, 111 (1st Cir. 1991)). Moreover,
Commonwealth, the GDB, and COSSEC, the dismissal of all the fraud-
based claims for failure to meet the Rule 9(b) heightened pleading
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standard (counts 1-5), the dismissal of the Puerto Rico law-based
Allegations of Fraud
upon which the Credit Unions focus in light of the general elements
brief and reply brief arguing that the district court misapplied
both Rules 12(b)(6) and 9(b) by failing to take their well pled
allegations as true, failing to draw reasonable inferences in their
favor, and holding them to an "unattainable" and "excessively high
pleadings standard" for the claims sounding in fraud. After
reviewing the district court's decision granting the motions to
dismiss, we disagree. The district court accurately described and
applied the heightened pleading standard for claims based on
fraudulent conduct and, after taking a fresh look, for the reasons
explained herein, we arrive at the same conclusions drawn by the
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of a Puerto Rico fraud claim.13 To plausibly allege fraud, the
Refund, 515 F.3d 57, 66 (1st Cir. 2008) (citing Microsoft Corp. v.
Rekomdiv Int'l, 657 F.3d 56 (1st Cir. 2011)); see also P.R. Laws
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machinations on the part of one of the contracting parties the
opposing party.'" New Eng. Data Servs., Inc. v. Becher, 829 F.2d
286, 288 (1st Cir. 1987) (quoting Wayne Inv., Inc. v. Gulf Oil
Corp., 739 F.2d 11, 14 (1st Cir. 1984)) (both cases holding general
194 F.3d 185, 193 (1st Cir. 1999). Unlike the plaintiffs in Becher
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allegedly knew to be false at that time, resulting in the Credit
But the allegations here flunk the plausibility test because the
identify when these encounters took place or when and how they led
financial needs," the part of the SAC to which they cite in support
GDB and governor's office. The SAC does not allege a conversation
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Another particularity deficiency is found in the
threat to whom and when? The Credit Unions also allege that COSSEC
bonds," and that this presentation was a key part of its scheme
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We also examine the Credit Unions' allegations that the
defendants knew the bonds would decline in value at the time the
way the plaintiffs tell it in the SAC), the defendants knew the
Circular Letter 09-03 that it would not consider any future drop
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allegations about what the defendants must have known by virtue of
unless the complaint also sets forth specific facts that make it
Corp., 975 F.2d 22, 25 (1st Cir. 1992) (Breyer, J.) (citations
but instead contend that they pled the defendants had "knowledge
between the defendants' identities and what they knew and when
requires too broad an inferential leap. See id.; see also Wayne
not meet the strictures of Rule 9(b)). Rather, the Credit Unions
defendants knew what they said was wrong at the time they said it.
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Moreover, as we earlier noted, to plausibly plead fraud
defendants, of the fact that the economy in Puerto Rico was not at
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us) that they actively proposed ways to mitigate the financial
2015.
fraud, and the Credit Unions have not filled the bill here. See
were made, where they were made, when they occurred, and what
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that the "allegations here amount to conclusory assertions that
9(b).16
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Puerto Rico Claims Time-Barred
for negligence and fraud against the Commonwealth, COSSEC, and the
GDB, citing P.R. Laws Ann. Tit. 31, §§ 3018, 3019, 3020, 3021,
as not plausibly pled, the defendants also argued that the statutes
of these claims were either one year, see P.R. Laws Ann. Tit. 31,
P.R. v. First Bos. (P.R.) Inc., 136 P.R. Dec. 541, 545-46 (P.R.
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to the [financial] system." The district court noted that the
Credit Unions did not dispute that their claims were governed by
filing.
emphasizing again that the SAC spells out the variety of their
efforts from 2015 to the present to work with the defendants about
FOMB, and that the defendants know "firsthand" about these efforts
Credit Unions' efforts to work with the agencies did not excuse
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"Equitable tolling is available 'in exceptional circumstances' to
281, 291 (1st Cir. 2002)). The Credit Unions rely on the hurricane
Takings Claim
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papers that did not constitute just compensation."18 According to
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The defendants moved to dismiss this count as not stating
The district court concluded the Credit Unions had not plausibly
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pressure' over the[m] . . . [;] a scheme that was made up of
the basis for the fraud claims, these dot "components" include the
this way, say the Credit Unions, the defendants knew the letters
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complaint, is enough for their takings claim (under either takings
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In retort, the defendants point out that the Credit
Unions simply have not alleged that they were required to purchase
belies their claim that they had no choice but to purchase the
669 F.3d 50, 55 n.3 (1st Cir. 2012) (stating the documents attached
Harvey, 575 F.3d 121, 129 (1st Cir. 2009) (citing Garelick v.
Sullivan, 987 F.2d 913, 916 (2d Cir. 1993)). The Credit Unions'
and then quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Ultimately, we need not determine the specific property
interest at play here because we conclude the Credit Unions failed
to plausibly plead coercion as the manner in which the government
and related entities deprived them of any property interest.
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letters in general and COSSEC's general authority to force
alleged in the SAC, not all of the Credit Unions felt compelled to
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WRAP UP
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