FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMINENCE INVESTORS, L.L.L.P., an No. 15-15237
Arkansas Limited Liability Limited
Partnership, Individually, and on D.C. No.
behalf of all others similarly 1:13-cv-02025-
situated, AWI-MJS
Plaintiff-Appellee,
v. OPINION
BANK OF NEW YORK MELLON, a
New York Banking Corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted
March 9, 2015—San Francisco, California
Filed April 2, 2015
Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Wallace
2 EMINENCE INVESTORS V. BNYM
SUMMARY*
Class Action Fairness Act / Removal / Jurisdiction
The panel dismissed for lack of subject matter jurisdiction
an appeal from the district court’s order remanding the case
to state court after the defendant had removed the case to
federal court pursuant to the Class Action Fairness Act.
The panel held that the securities exception from CAFA
removal, 28 U.S.C. § 1453(d)(3), applied to the case, and
dismissed for lack of jurisdiction.
COUNSEL
David J. Bird (argued), James C. Martin, Eric A. Schaffer,
and Benjamin J. Sitter, Reed Smith LLP, Pittsburgh,
Pennsylvania; Donald H. Glasrud, Dietrich, Glasrud, Mallek
& Aune, Fresno, California, for Defendant-Appellant.
Robert Branch (argued), Thornton Law Group, P.C., Fresno,
California; Douglas V. Thornton, Rummonds Thornton, LLP,
Fresno, California, for Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EMINENCE INVESTORS V. BNYM 3
OPINION
WALLACE, Senior Circuit Judge:
Defendant-Appellant The Bank of New York Mellon
(Bank) appeals from the district court order remanding this
case to state court after the Bank removed the case pursuant
to the Class Action Fairness Act (CAFA) removal provision
in 28 U.S.C. § 1453(b). Because we conclude that the CAFA
securities exception, 28 U.S.C. § 1453(d)(3), applies to this
case, we dismiss the appeal for lack of jurisdiction.
I.
Plaintiff-Appellant Eminence Investors, L.L.L.P.
(Eminence), originally brought suit against the Bank in
California state court in 2011. Almost two years later,
Eminence filed a First Amended Complaint (Complaint),
adding class allegations on behalf of more than 100 class
members and requesting compensatory damages expected to
exceed $10 million for each of four causes of action. The
Bank is the successor to the indenture trustee under an
Indenture of Trust (Indenture) dated November 1, 1996,
governing the administration of the $16,000,000 Jensen
Ranch Public Financing Authority River Ranch Project –
Revenue Bonds, 1996 Series A (Bonds) issued by the Jensen
Ranch Public Finance Authority. The Complaint alleges that
Eminence and other class members have a common interest
as holders of the Bonds against the Bank as their fiduciary.
The Complaint includes causes of action for breach of
fiduciary duty and gross negligence as well as a request for
injunctive relief.
4 EMINENCE INVESTORS V. BNYM
Within thirty days of the filing of the Complaint, the Bank
removed the action to federal court. Eminence then moved to
remand the case to state court, arguing that removal was
untimely and that the CAFA securities exception applied. The
district court ultimately agreed with Eminence regarding the
untimeliness of the removal under 28 U.S.C. § 1446(b) and
remanded the case to state court without reaching the
securities exception issue.
II.
Normally, “[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal.” 28
U.S.C. § 1447(d). However, in cases that fall under CAFA, “a
court of appeals may accept an appeal from an order of a
district court granting or denying a motion to remand a class
action to the State court from which it was removed.” Id.
§ 1453(c)(1). The Bank relied exclusively on CAFA
jurisdiction when removing the case and no other source of
jurisdiction is apparent from the record. Any jurisdiction over
this appeal is therefore predicated on the applicability of
CAFA. We do not have jurisdiction if the CAFA securities
exception applies to this case.
The Bank argues that Eminence waived the securities
exception argument by omitting it from its opposition to the
petition for permission to appeal. Regardless of whether
Eminence has waived the argument, however, this court is
“bound to consider jurisdictional defects sua sponte.” United
States v. S. Pac. Transp. Co., 543 F.2d 676, 682 (9th Cir.
1976).
EMINENCE INVESTORS V. BNYM 5
III.
Three categories of cases are expressly exempted from
CAFA removal. 28 U.S.C. § 1453(d). Virtually identical
language is used in 28 U.S.C. § 1332(d)(9) to describe the
cases excluded from original jurisdiction under CAFA. The
third removal exception, which for the sake of simplicity we
refer to as the “securities exception,” see Greenwich Fin.
Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Fin.
Corp., 603 F.3d 23, 29 (2d Cir. 2010), is the only one relevant
to this appeal. We have not yet had occasion to construe the
language of the securities exception.
Under this exception, CAFA removal does not apply to
any class action that solely involves ... a claim
that relates to the rights, duties (including
fiduciary duties), and obligations relating to or
created by or pursuant to any security (as
defined under section 2(a)(1) of the Securities
Act of 1933 (15 U.S.C. 77b(a)(1)) and the
regulations issued thereunder).
28 U.S.C. § 1453(d)(3). Thus, the securities exception applies
if all of the claims in the class action have a particular kind of
relationship with a security. Each claim must relate to certain
rights, duties, or obligations; those rights, duties, or
obligations must be related to or created by or pursuant to a
security; and that security must meet the definition
established in 15 U.S.C. § 77b(a)(1) “and the regulations
issued thereunder.”
Neither party disputes that the Bonds fit within the
relevant definition of “security” under the last part of the
6 EMINENCE INVESTORS V. BNYM
exception. Nor does either party dispute that the issuance of
the Bonds gave rise to rights, duties, and obligations between
the holders of the Bonds, the borrower, and the indenture
trustee. The disputed issue is whether all of the claims in the
Complaint “relate[] to the rights, duties ..., and obligations
relating to or created by or pursuant to” the Bonds.
Eminence’s Complaint asserts five causes of action
against the Bank. The first three causes of action are for
breach of fiduciary duty, based respectively on non-
disclosure, loyalty, and due care. All three allege that “[b]y
reason of the Indenture, the [Bank], as fiduciary and agent for
[Eminence], ... owed fiduciary duties to [Eminence],” and
that the Bank “set out to create and did in fact create a special
relationship of trust and confidence, and thereby owed
[Eminence] a fiduciary duty.” These causes of action allege
that the Bank breached its duties in various ways: by failing
to disclose certain information to Eminence; by taking certain
actions that “harmed the collateral for the Deed of Trust and
ultimate security for the Note,” including selling other
properties for less than market value and without
guaranteeing access rights; and by taking similar actions
including failing to record the Indenture in a timely manner.
The third cause specifically alleges that the Bank “further
owed professional duties under applicable state and federal
laws, industry standards, and professional codes of ethics.”
The fourth cause of action is for gross negligence, and the
allegations closely follow the allegations made in the third
cause of action, including allegations that the Bank was under
a duty to perform its work with due care and that the Bank
owed further professional duties. The fifth cause of action is
entitled “injunctive relief”; it appears to be a request for a
EMINENCE INVESTORS V. BNYM 7
temporary restraining order or preliminary injunction, rather
than an independent cause for relief.
The duties the Bank allegedly owed to Eminence all stem
from the current relationship between the Bank and Eminence
based on their positions with respect to the Bonds. Although
neither the Bank nor Eminence were parties to the original
transaction, the Bank is now the successor to the indenture
trustee, and Eminence holds some of the Bonds. All of the
duties allegedly breached by the Bank, such as the fiduciary
duties supporting the first three causes of action and the
duties supporting the gross negligence cause of action, arise
out of the Bank’s position as indenture trustee and
Eminence’s corresponding position as holder of the Bonds.
Although it is true that Eminence’s causes of action also
rely on various sources of law—including the state and
federal laws, industry standards, and professional codes of
ethics mentioned in the Complaint—that are not part of the
Bonds themselves or the Indenture governing their
administration, the same would also be true of any cause of
action that relates to the duties created by a security, because
the cause would at least rely on those provisions of contract
law necessary to construe and apply the security. The causes
of action stated in the Complaint are based on alleged duties,
and those alleged duties arise from the Bonds and the
Indenture. In fact, Eminence conceded at oral argument that
if the Indenture did not exist, Eminence would have no cause
of action against the Bank. Thus, we conclude that under any
plausible interpretation of the statutory language, all of the
causes of action in the Complaint “relate[] to the rights, duties
..., and obligations relating to or created by or pursuant to”
the Bonds, so the securities exception must apply.
8 EMINENCE INVESTORS V. BNYM
The Bank argues that the securities exception should not
apply because some of the allegations underlying the causes
of action involve the transfer of the “District Property,” which
was completely unrelated to the Bonds or the original
transaction that created the Bonds. However, the Complaint
makes clear that the District Property transaction is relevant
to Eminence’s causes of action because the Bank “breached
[its] fiduciary duties by ... authorizing the sale of the District
Lands to a private party to the financial detriment of the
Development Property.” Thus, the District Property
allegations are only relevant to Eminence’s causes of action
against the Bank because the Bank allegedly owed Eminence
and other bondholders certain fiduciary duties in its role as
trustee under the Indenture. These allegations are therefore
part of “a claim that relates to the rights, duties (including
fiduciary duties), and obligations relating to or created by or
pursuant to” the Bonds held by Eminence.
The Bank also argues that the securities exception should
not apply because several specific allegations in the
complaint against the Bank are expressly foreclosed by the
terms of the Indenture. But the Bank’s ability to invoke the
terms of the Indenture as a defense is logically dependent
upon the degree to which those causes of action are based on
the relationship created by the issuance of the Bonds. The
Bank may be right that the terms of the Indenture preclude
any liability for the Bank under the theories set forth in
Eminence’s causes of action, but the assumptions underlying
that argument lead inexorably to the conclusion that the
causes of action at least “relate[] to the rights, duties
(including fiduciary duties), and obligations relating to or
created by or pursuant to” the Bonds.
EMINENCE INVESTORS V. BNYM 9
IV.
Although we have not yet construed the language of the
securities exception, the Second Circuit has done so
previously in three of its cases: BlackRock Fin. Mgmt. Inc. v.
Segregated Account of Ambac Assurance Corp., 673 F.3d 169
(2d Cir. 2012); Greenwich, 603 F.3d 23; and Estate of Pew v.
Cardarelli, 527 F.3d 25 (2d Cir. 2008). The reasoning
followed by the Second Circuit in its securities exception
cases confirms the conclusion we reached above.
In addition, we have stated that we prefer not to create
intercircuit conflicts unless we conclude it is absolutely
necessary. See Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co.,
257 F.3d 1071, 1077 (9th Cir. 2001) (“unless there are valid
and persuasive reasons to hold otherwise, we should not
create an intercircuit conflict”); United States v.
Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987) (same).
The application of this wisdom is especially important here
because the controversy deals with securities, which by their
nature have no state boundary impediments. Further, the
legislative history as well as the logic behind CAFA dictate
that a nationwide rule is of great significance. We therefore
join our sister circuit on the issue before us.
In Cardarelli, purchasers of certain money market
certificates brought suit against the issuers of the certificates
and their auditors under a state consumer fraud statute.
527 F.3d at 26. The Second Circuit held that because the
plaintiffs sought to enforce their rights as purchasers of the
securities rather than as holders of the securities under a state
fraud statute that focused on the transaction in which they
acquired the notes, the exception did not apply. Id. at 32.
10 EMINENCE INVESTORS V. BNYM
The Bank quotes Cardarelli for the proposition that in
order to apply the securities exception the causes involved
must be causes “grounded in the terms of the security itself.”
However, the next sentence in Cardarelli clarifies that the
key distinction was whether the plaintiffs were seeking to
enforce their rights as holders of the certificates or purchasers
of the certificates, id., and subsequent Second Circuit cases
reinforce this interpretation of Cardarelli. See BlackRock,
673 F.3d at 176 (in Cardarelli “we held that § 1453(d)(3) was
inapplicable because the claim related to plaintiffs’ status as
the ‘purchaser’ rather than the holder of a security”);
Greenwich, 603 F.3d at 29 (“The key distinction between
suits that were immune from removal under CAFA and those
that were not [in Cardarelli] is that immune suits sought to
enforce the rights of the securities ‘holders as holders’”).
In this case, Eminence is clearly asserting its rights as a
holder of the Bonds rather than as a purchaser of the Bonds.
Neither Eminence nor the Bank were involved in the original
transaction that gave rise to the Bonds. Eminence acquired
the Bonds by repurchasing them from their original holders
in subsequent years, and the Bank later became the successor
in interest to the original trustee. Thus, Cardarelli cannot be
construed to suggest that the securities exception is
inapplicable in this case.
The Second Circuit’s later opinion in Greenwich involved
a suit brought by the holders of mortgage-backed securities
against the mortgage company and the trusts it created to
generate and sell the securities; the plaintiffs sued to force the
defendants to repurchase the securities under the agreements
governing the securities. 603 F.3d at 25. The Second Circuit
held that the securities exception applied because the
“[p]laintiffs’ asserted right to force [the defendant] to
EMINENCE INVESTORS V. BNYM 11
repurchase the loans arises from the deal instruments
themselves, not from an extrinsic provision of state law, such
as the consumer fraud statute that formed the basis of the
action in Cardarelli.” Id. at 29. The Second Circuit also
rejected the defendants’ arguments that the securities
exception could not apply because the plaintiffs’ claims
raised “collateral legal issues that go beyond the
interpretation of the certificates,” including state alter ego law
and a defense based on “‘standard industry practice,’ as
defined in federal law at 15 U.S.C. § 1639a(c).” Id. at 31. The
Second Circuit reasoned that “[a]lmost any securities claim
under state law will necessarily ‘involve’ defenses—such as
statutes of limitations—and collateral issues—such as state
contract law,” and the court had to “reject an interpretation of
the statutory text that would render the jurisdictional
exception of ... [section] 1453(d)(3) nugatory.” Id.
The Bank does not cite Greenwich, perhaps
unsurprisingly given that the Second Circuit’s reasoning in
Greenwich directly addresses and dispatches the arguments
raised by the Bank in this case. The Bank argues that the
securities exception should not apply both because
Eminence’s causes of action raise collateral issues of state
law such as the common law duties (if any) of an indenture
trustee and because Eminence’s causes are subject to a
variety of defenses under the terms of the contract. As the
Second Circuit stated, such a broad interpretation of the
securities exception would render the exception null, since
“[n]othing differentiates [such arguments] from the sorts of
affirmative defenses and collateral issues that arise in
virtually every lawsuit,” and “Congress cannot have intended
its exceptions to CAFA jurisdiction to be essentially
meaningless.” Id. at 31–32.
12 EMINENCE INVESTORS V. BNYM
In the Second Circuit’s most recent securities exception
case, BlackRock, the Bank of New York Mellon (the same
party in this case), acting in its capacity as a trustee over
trusts holding mortgage-backed securities, initiated a state-
court proceeding to confirm its settlement authority, at which
point certain investors removed the proceeding to federal
court pursuant to CAFA. 673 F.3d at 172. The district court
held that the securities exception did not apply “if the
trustee’s conduct in approving the settlement must also be
evaluated under some source of law other than the
[documents underlying the securities], such as New York’s
common law of trusts.” Id. at 179 (internal quotation marks
omitted). But the Second Circuit dismissed the appeal,
holding that “duties superimposed by state law as a result of
the relationship created by or underlying the security fall
within the plain meaning of the statute, which expressly
references ‘duties (including fiduciary duties).’” Id., quoting
28 U.S.C. § 1453(d)(3).
The reasoning in Blackrock likewise confirms the
propriety of applying the securities exception in this case,
since it is clear here that Eminence’s causes of action are
based on the “duties superimposed by state law as a result of
the relationship created by or underlying the [Bonds].” To
hold that the securities exception does not apply to such
causes of action would run counter to the statute’s text, which
expressly includes causes of action based on “fiduciary
duties.” The Bank appears to cite Blackrock for the principle
that the securities exception should not apply to causes of
action “seeking solely to ‘enforce the terms of’ the
Indenture,” quoting a passage from Blackrock stating that the
exception should not apply to “claims based on rights arising
from independent sources of state law,” id. at 176 (internal
quotation marks omitted). However, the Bank does not
EMINENCE INVESTORS V. BNYM 13
discuss the preceding phrase, which states that the securities
exception does apply to causes based “on the duties imposed
on persons who administer securities.” Id. An indenture
trustee is the one responsible for administering bonds, so
under the reasoning of this passage in Blackrock, the
securities exception should apply because all of Eminence’s
causes of action are based on the Bank’s alleged duties in
administering the Bonds.
The Second Circuit’s reasoning regarding CAFA’s
securities exception therefore does not conflict with our
conclusion above that the exception clearly applies to the
causes of action in this case. Regardless of whether we would
have taken the Second Circuit’s approach to the specific and
sometimes difficult issues that it has addressed in its
securities exception cases, it is clear that the underlying
causes of action in this case are covered by the CAFA
securities exception under any plausible reading of the text.
APPEAL DISMISSED.