The opinion of the court was delivered by: Rufe, J.
MEMORANDUM OPINION & ORDER
In this action, Plaintiffs assert claims against the directors and officers of Advanta Corporation ("the Advanta Defendants") and their outside auditor, KPMG LLP, under the Securities Exchange Act of 1933. *fn1 Plaintiffs allege that the Advanta Defendants sold $500 million worth of notes using registration statements containing material misstatements and omissions in violation of the Act. They further allege that KPMG LLP certified the misstated financial records.
The Advanta Defendants and KPMG each move under Federal Rule of Civil Procedure 12(b)(6) to dismiss all counts of the Plaintiffs' Amended Complaint for failure to state a claim. After oral argument on this matter on August 15, 2011, and upon consideration of the Parties' papers, KPMG's motion is granted and the Advanta Defendants' motion is granted in part.
Named Plaintiffs bring this action on behalf of a putative class
of individuals who purchased Advanta securities between June 24, 2007
and November 28, 2009. The Advanta Defendants *fn3
are directors and senior officers of Advanta who signed
the allegedly untrue registration statement used to sell the
securities. *fn4 Defendant KPMG LLP is an
international accounting and auditing firm that reviewed the accuracy
of and certified Advanta's financial statement. *fn5
Advanta Corporation is not a defendant in this
A. A DVANTA' S B USINESS M ODEL AND C OLLAPSE
Prior to its collapse, Advanta was one of the largest issuers of
credit cards to businesses in the United States. *fn6
It operated its business primarily through its
wholly-owned subsidiary, Advanta
Bank Corporation. *fn7 Advanta was a
"monoline" (specialized) credit-card bank: it focused primarily on
small business credit-card customers, and it did not have any other
significant banking operations. *fn8 Its
business strategy was considered "risky" because the loans it made
were unsecured, revolving lines of credit, with credit lines greater
than those for consumer credit cards. *fn9
Consequently, Advanta's credit rating was "below investment grade."
Advanta's primary source of funding was derived from the securitization *fn10 of its credit card receivables. Credit card securitization allows banks and other issuers of credit cards to convert their receivables into cash. To securitize its receivables, Advanta sold them to a wholly-owned special-purpose trust ("the Trust"). The Trust pooled the receivables together, packaged them, and sold them as RediReserve variable rate certificates and investment notes ("RediReserve Notes").
On August 18, 2006, Advanta filed a shelf registration statement *fn11 and prospectus with the Securities and Exchange Commission ("SEC"), which indicated its intent to offer $500 million worth of RediReserve notes. By the terms of the shelf registration, and pursuant to federal law, each of Advanta's subsequent annual reports amended the Registration Statement. *fn12
Advanta issued $350 million worth of notes on August 18, 2006; on
February 9, 2009, it issued another $150 million of notes.
*fn13 Advanta capped investment in the notes at
$500,000. *fn14 The notes were not sold in
traditional debt markets, but instead were marketed directly to
investors through newspaper advertisements. *fn15
The notes paid varying rates depending on the amount of
the initial investment and the duration of the note. *fn16
Advanta received cash upon the sale of the receivables to
the Trust, but retained an interest in the receivables.
*fn17 Advanta relied on the proceeds from the
receivables' securitization as its primary source of funding. The
RediReserve notes gave investors the right to a certain return on
their investment; as customers paid their Advanta credit card
payments, the Trust would make payouts to noteholders. Thus,
noteholders were dependent upon Advanta's revenues for periodic
interest payments and the eventual repayment of principal
upon their note's maturity. *fn18
The RediReserve Notes were not insured or guaranteed by the
FDIC, *fn19 and Advanta did not establish a
"sinking fund" *fn20 as a precaution in the
event that Advanta was unable to repay noteholders. *fn21
To protect investors, however, the RediReserve Notes
contained an "early amortization clause," *fn22
which, once triggered, *fn23
required Advanta to immediately repay noteholders' principal. The
RediReserve notes were designed to amortize early if the monthly
excess spread fell to zero or below for three consecutive months.
Beginning in August 2007, due to serious economic disruptions, securitization market activity virtually halted, and the market for small issuers-like Advanta-collapsed. *fn24
Consequently, Advanta's securities sales significantly decreased. *fn25 Then, in March 2008, credit-card delinquencies and charge-offs began to rapidly increase. As more of Advanta's credit-card customers defaulted, profits generated by its securitized receivables dropped dramatically.
In June 2009, after the excess spread dropped to below zero for three consecutive months, the early amortization clause was triggered. Because the early amortization required Advanta to direct all funds from the securitization pool to repay principle due to noteholders, Advanta was obligated to fund its credit card customers from a different source. But since the securitization fund was the only source of funding for its primary business, once the early amortization occurred, Advanta was no longer able to fund its credit card customers. *fn26 Unable to fund its credit cards, and in the face of still-rising loan losses, Advanta cancelled all charging privileges for its cardholders. *fn27
A few months later, in November 2009, Advanta filed for Chapter 11 bankruptcy.
B. T HE P ENDING L INSTIGATION
On June 24, 2010, Plaintiffs commenced this action in the Court of
Common Pleas of Montgomery County, Pennsylvania. *fn28
Defendants timely removed the action to this Court;
Plaintiffs did not move to remand. After the Court granted Plaintiffs'
motion to appoint class counsel and lead plaintiffs, *fn29
Plaintiffs filed the pending amended complaint.
Plaintiffs claims arise from the 2006 Shelf Registration Statement and its Amendments. *fn31
According to Plaintiffs, those documents misrepresented Advanta as a "prudent company with a 'very strong' financial condition," when in fact Advanta was engaging in "unsafe and unsound banking practices" that ultimately led to its collapse. *fn32
Plaintiffs pinpoint three documents issued by the FDIC as proof that the registration statement and its amendments included material misstatements and omissions. *fn33 The first, a 2010 Material Loss Review, allegedly "makes clear that Advanta was engaged in numerous unsound and illegal activities that were misrepresented and not adequately disclosed in the Registration Statement." *fn34 The two other documents, FDIC cease and desist orders, allegedly corroborate the Material Loss Review. *fn35
In its Material Loss Review, the FDIC reviewed Advanta's business
practices between December 2004 and December 2009 in order to
determine, among other things, the cause of Advanta's failure. Based
on the audit, the FDIC concluded that "Advanta failed due to
insolvency brought on by the Board of Directors' and management's
failure to implement risk management practices commensurate with the
risks associated with its business model." *fn36
In particular, the FDIC faulted Advanta's board and management for failing to develop
adequate contingency plans for responding to an early amortization
event, and its failure to incorporate those plans into its capital
adequacy model. *fn37
The FDIC also concluded that although a rapid increase in customer
defaults was partially caused by economic conditions, they were also
attributable to an "aggressive repricing campaign" that Advanta began
in late 2007. During that campaign, Advanta repriced 68 percent of its
credit card loan portfolio by increasing customer finance charges and
raising interest rates. *fn38 The price hikes
resulted in higher minimum payments for customers, and made it
difficult for struggling customers to cure any delinquencies. The FDIC
found that Advanta's aggressive repricing practices were illegal:
*fn39 Advanta imposed the rate hikes on customers
without disclosing the basis and reasons for the increase, the amount
of the increase, or the customers' right to opt-out. *fn40
Nor did it notify its customers of the specific reasons
for the adverse actions.
On June 30, 2009, two FDIC cease-and-desist orders took effect against Advanta, and were disclosed by Advanta in an 8-K filing with the SEC. *fn41 In the first order, the FDIC directed Advanta to cease and desist certain "unsafe and unsound" banking practices, including: "The Bank's Board of Directors and Management operating the Bank in a manner that causes the Bank's significant deterioration;" "operating with inadequate capital for the Bank's risk profile;" and "[o]perating in a manner that does not sustain satisfactory earnings performance to maintain sufficient capital in relation to the Bank's risk profile." *fn42 In the second cease and desist order, the FDIC alleged that Advanta had raised the interest rates on certain customer accounts and marketed its Cash Back Rewards program in violation of consumer protection laws. Based on those findings, the FDIC ordered Advanta to pay restitution to customers "substantially injured" by those practices.
Plaintiffs' amended complaint includes three counts: Count One alleges violations of § 11 of the 1933 Securities Act *fn43 against the Advanta Defendants and KPMG; and Counts Two and Three allege that the Advanta Defendants violated §§ 12(a)(2) and 15 of the 1933 Act.
II. S TANDARD OF R REVIEW
In reviewing a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief may be granted, the Court must accept
a plaintiff's factual allegations as true and construe the complaint
in the light most favorable to the plaintiff. *fn44
Courts are not, however, bound to accept as true legal
conclusions couched as factual allegations, *fn45
or "accept as true unsupported conclusions and
unwarranted inferences." *fn46 The Complaint
must set forth "direct or inferential allegations [for]
all the material elements necessary to sustain recovery under some
viable legal theory." *fn47 And it must
allege "enough facts to state a claim to relief that is plausible on
its face." *fn48 "The plausibility standard
is not akin to a 'probability requirement,' but it asks for more than
a sheer possibility that a defendant has acted unlawfully."