Smallen v. The Western Union Company

950 F.3d 1297 (10th Cir. 2020)

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Nature of the Case

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Facts

D is the world's largest provider of money-transfer services. On January 19, 2017, D reached a joint settlement with several federal regulators and agreed to pay $586 million to resolve investigations into the company's AML and anti-fraud programs. DOJ and D entered into a deferred prosecution agreement (DPA) wherein the company admitted to willfully failing to implement an effective AML compliance program from 2004 through December 2012. Two weeks later, D also agreed to pay $5 million to settle charges arising out of the same compliance issues with the attorney generals of 49 states and the District of Columbia. After the settlement, the price of D's stock shares declined. Ps filed their Consolidated Amended Class Action Complaint, on behalf of itself and other similarly situated shareholders, against D and a select group of its senior executives. Ps allege Ds violated Section 10(b) of the Securities Exchange Act of 1934, and Securities Exchange Commission Rule 10b-5 by making false and materially misleading statements during the five-year Class Period. Ps also asserted claims against the Individual Defendants under Section 20(a) of the Securities Exchange Act. Ds filed a motion to dismiss under 12(b)(6) and 9(b) and the PSLRA. The district court held that the complaint failed to create a strong inference of scienter as required to state a claim under the PSLRA. It dismissed Ps' claims of securities fraud under Section 10(b) and Rule 10b-5. Because Plaintiff failed to plead a primary violation of the securities laws-a required element for control-person liability-the district court also held Ps' Section 20(a) claims could not proceed. Ps appealed.