However, while reckless conduct may satisfy the scienter requirement of § 10(b) and Rule 10b-5, "the complaint must make clear that more than mere negligence is alleged." Modern Settings, Inc. v. Prudential-Bache Sees., Inc., 603 F.Supp. 370, 372 (S.D.N.Y. 1985). Thus, conclusory "allegations that a defendant `knew or [was] reckless in not knowing' the true facts will not satisfy a plaintiffs pleading requirements."
There are, however, material issues of fact as to whether Bache had the legal right to liquidate the account. If the Finns' allegations that Bache fraudulently and unlawfully mismanaged their account are taken as true, as they must for the purposes of this appeal, then Bache's liquidation of the account could very possibly have given rise to a cause of action for unlawful liquidation. See Modern Settings, Inc. v. Prudential-Bache Securities, Inc., 603 F. Supp. 370, 374-75 (S.D.N.Y. 1985). If we followed Bache's reasoning, an investment firm could illegally manipulate a customer's account to create a large indebtedness and then use the threat of liquidation as a tool to secure a release of all claims against the firm. We cannot sanction such a result.
To comply with the requirements of Rule 9(b), a plaintiff does not need to " recite the evidence or plead detailed evidentiary matters." Gabbert v. Penncorp. Fin., Inc., 1994 WL 675192, at *1 (D.Kan. Nov.21, 1994) (quoting Modern Settings, Inc. v. Prudential-Bache Securities, Inc., 603 F.Supp. 370, 374 (S.D.N.Y.1985)). " Despite these stringent requirements, the courts should be ‘ sensitive’ to the fact that application of the Rule prior to discovery ‘ may permit sophisticated defrauders to successfully conceal the details of their fraud.’
A statement is made recklessly if it is made "without investigation and with utter disregard for whether a basis existed for the assertion." Modern Settings, Inc. v. Prudential-Bache Securities, Inc., 603 F. Supp. 370, 372 (S.D.N Y 1985).
However, to meet the requirements of Rule 9(b) a complaint need not "recite the evidence or plead detailed evidentiary matter[.]" Modern Settings, Inc. v. Prudential-Bache Secur., Inc., 603 F. Supp. 370, 374 (S.D.N.Y. 1985) (citation omitted). Similarly, Rule 9(b) does not require particularity to the degree so as to supplant general discovery methods.
This proceeding and determination are expected to bring this prolonged controversy to a final termination. The history of this case is set forth in detail in the court's prior opinions — 602 F. Supp. 511 (1984); 603 F. Supp. 370 (1985); 629 F. Supp. 860 (1986); No. 83 Civ. 6291, slip op. (June 2, 1988) (as amended, 1988 WL 49056, 1988 U.S. Dist. Lexis 5059); 709 F. Supp. 70 (1989); 109 B.R. 605 (1989) — with which familiarity is assumed. Accordingly, only those facts necessary to understand the damages and set-off issues now being addressed will be regurgitated in this opinion.
I This, the fifth or sixth occasion we have had to plow the ground in this controversy, see earlier opinions, 602 F. Supp. 511 (S.D.N.Y. 1984); 603 F. Supp. 370 (S.D.N.Y. 1985); 629 F. Supp. 860 (S.D.N.Y. 1986), 83 Civ. 6291, slip opinion dated May 6, 1988 (unreported), [1988 WL 49056], with which familiarity is assumed, may be the penultimate point in the litigation. A hearing on damages is scheduled to follow the instant liability disposition.
In so finding, we do not hold that securities violations cannot occur in the management of margin accounts, or that wrongful liquidations of such accounts cannot play a part in securities frauds. Cf. Angelastro v. Prudential-Bache Sec. Inc., 764 F.2d 939, 942 (3d Cir. 1985) (finding misrepresentation or nondisclosure of credit terms of margin account "in connection with" purchase or sale of security; purpose underlying § 10(b) and rules adopted under section is to insure that investors obtain disclosure of material facts in connection with their investment decisions regarding the purchase or sale of securities); Modern Settings v. Prudential-Bache Sec. Inc., 603 F. Supp. 370, 373-75 (S.D.N.Y. 1985) (plaintiffs stated claim for violations of federal securities laws where alleged wrongful liquidations of plaintiff's margin account part of scheme by which defendants attempted to depress and artificially manipulate market in order to then purchase undervalued securities to sell at profit). Here, however, the SEC claim doesn't pass muster.
Modern Settings has assigned its claims in this action to Bialystock and Bloom Productions ("Bialystock"). Pursuant to a related but separate 1983 gold consignment agreement, PBM acquired a claim against Modern Settings for 1500 ounces of gold. Modern Settings was adjudged a bankrupt on March 25, 1986. 602 F. Supp. 511 (S.D.N.Y. 1984) (Carter, J.); 603 F. Supp. 370 (S.D.N.Y. 1985); 629 F. Supp. 860 (S.D.N.Y. 1986); 83 Civ. 6291, slip op. (May 6, 1988) [1988 WL 49056]; 709 F. Supp. 70 (S.D.N.Y. 1989). Although Bialystock and Bloom Productions, Inc. has been declared the rightful owner of Modern Settings' claims, slip opinion, supra at 9, for convenience, this opinion will refer to Modern Settings as the sole plaintiff.
Moreover, the Court has stated that the tort has four elements: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" ( Howell v New York Post Co., supra, at 121 [emphasis added]). The italicized phrase comports with general descriptions of recklessness in tort matters ( see, e.g., Rolf v Blyth, Eastman Dillon Co., 570 F.2d 38, 47, cert denied 439 U.S. 1039; Modern Settings v Prudential-Bache Sec., 603 F. Supp. 370, 372; see generally, Prosser and Keeton, Torts § 34, at 214 [5th ed]) and is similar to the Restatement's description of recklessness ( see, Restatement [Second] of Torts § 46 [1], comment i; § 500). The Third Department similarly has considered reckless conduct to be encompassed within the tort that is commonly referred to as the intentional infliction of emotional distress ( see, Olmstead v Federated Dept. Stores, 208 A.D.2d 979, 981, lv denied 85 N.Y.2d 811), and the Second Department has concluded that a complaint alleging reckless conduct states a cause of action for intentional infliction of emotional distress ( see, Beck v Libraro, 220 App. Div. 547; see also, Mitran v Williamson, 21 Misc.2d 106; see generally, 2 N.Y. PJI 47-48 [1997 Supp]).