Esg Capital Partners v. Venable LLP

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ESG CAPITAL PARTNERS, No. 13-56684
LP, a Delaware Limited
Partnership and Limited D.C. No.
Partners, 2:13-cv-01639-ODW-SH
Plaintiff-Appellant,

v. OPINION

TROY STRATOS, AKA Ken
Dennis,
Defendant,

and

VENABLE LLP; DAVID
MEYER,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding

Argued and Submitted December 7, 2015
Pasadena, California

Filed July 11, 2016
2 ESG CAPITAL PARTNERS V. VENABLE LLP

Before: Harry Pregerson, Dorothy W. Nelson, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Pregerson

SUMMARY*

Securities

The panel affirmed in part and reversed in part the district
court’s dismissal for failure to state a claim of a securities
fraud action brought by ESG Capital Partners, L.P., a group
of investors formed to purchase pre-Initial Public Offering
Facebook shares.

ESG Capital’s managing agent negotiated the purchase of
shares with an alleged con artist who was represented by
defendant Venable LLP, a law firm. ESG transferred funds
but never received the shares.

Reversing in part, the panel held that ESG Capital’s
federal securities fraud claim under § 10(b) of the Securities
Exchange Act was sufficiently pled under Federal Rule of
Civil Procedure 9(b) and the Private Securities Litigation
Reform Act. The panel held that Venable attorney David
Meyer was the maker of alleged false statements and had a
duty to disclose information to ESG. ESG pled facts that led
to a strong inference of scienter. It also sufficiently pled
reliance.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ESG CAPITAL PARTNERS V. VENABLE LLP 3

The panel held that ESG’s state law fraud claim, which
paralleled the federal securities fraud claim, was sufficiently
pled under Fed. R. Civ. P. 9(b).

The panel held that ESG’s nonfraud claims under
California state law for conversion, unjust enrichment, unfair
competition, aiding and abetting fraud, and conspiracy to
commit fraud were sufficiently pled under Fed. R. Civ. P.
8(a)(2). The panel held that neither the aiding and abetting
fraud claim nor the conspiracy claim was barred by Cal. Civ.
Code § 1714.10’s Agent’s Immunity Rule, which shields an
attorney who merely acted as an agent of a third party that
had a duty to the plaintiff.

Affirming in part, the panel held that ESG’s state law
claim for breach of fiduciary duty, which alleged conduct that
fell within the scope of providing legal services, was barred
by Cal. Civ. Proc. Code § 340.6’s one-year statute of
limitations. The panel reversed the dismissal of ESC’s other
claims and remanded the case to the district court.

COUNSEL

Margaret A. Grignon (argued) and Paula M. Mitchell, Reed
Smith LLP, Los Angeles, California; William C. Nystrom,
Michael Paris, and Jack I. Siegal, Nystrom Beckman & Paris
LLP, Boston, Massachusetts; for Plaintiffs-Appellants.

Kevin S. Rosen (argued), Matthew S. Kahn, and Bradley J.
Hamburger, Gibson, Dunn & Crutcher LLP, Los Angeles,
California, for Defendant-Appellee Venable LLP.
4 ESG CAPITAL PARTNERS V. VENABLE LLP

David K. Willingham (argued) and Arwen Johnson, Caldwell
Leslie & Proctor, PC, Los Angeles, California; for
Defendant-Appellee David Meyer.

OPINION

PREGERSON, Circuit Judge:

INTRODUCTION

In this case we are dealing with the sufficiency of
pleadings to survive a Federal Rule of Civil Procedure
12(b)(6) motion to dismiss. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291, and we affirm in part,
reverse in part, and remand.

We conclude that appellant’s federal securities fraud
claim is sufficiently pled under Federal Rule of Civil
Procedure 9(b) and the Private Securities Litigation Reform
Act. 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b–5.

Appellant’s state law fraud claim, which parallels the
federal securities fraud claim, is sufficiently pled under
Federal Rule of Civil Procedure 9(b). Appellant’s nonfraud
state law claims for conversion, unjust enrichment, unfair
competition, aiding and abetting fraud, and conspiracy to
commit fraud are sufficiently pled under Federal Rule of
Civil Procedure 8(a)(2).

Only one of appellant’s state law claims—breach of
fiduciary duty—is barred by Cal. Civ. Proc. Code § 340.6’s
one-year statute of limitations.
 ESG CAPITAL PARTNERS V. VENABLE LLP 5

Neither the aiding and abetting fraud claim nor the
conspiracy to commit fraud claim is barred by Cal. Civ. Code
§ 1714.10’s Agent’s Immunity Rule.

BACKGROUND1

ESG Capital Partners, L.P. (“ESG Capital”) was a group
of investors formed to purchase pre-Initial Public Offering
(“pre-IPO”) Facebook shares. Timothy Burns (“managing
agent Burns”) was ESG Capital’s managing agent. Managing
agent Burns negotiated the purchase of pre-IPO Facebook
stock with a man he believed to be “Ken Dennis.” In fact,
“Ken Dennis” was an alias for Troy Stratos, an alleged con
artist.

Venable LLP is a law firm with nine offices throughout
the country, including Los Angeles. Venable LLP
represented “Dennis” (aka Stratos) in the Facebook deal,
which is the subject of this securities fraud suit. One of the
partners in Venable LLP’s Los Angeles office, David Meyer
(“attorney Meyer”), was “Dennis’s” principal contact at
Venable LLP throughout the Facebook deal. At the time
Venable LLP was representing “Dennis” in the Facebook
deal, Venable LLP, but not attorney Meyer, also represented
Stratos in an unrelated suit for the theft of $7 million.

Attorney Meyer assisted Stratos in creating Soumaya
Securities, LLC (“Soumaya Securities”)—a company that
Stratos could use to conduct business without detection.

1
The following facts are taken from ESG Capital’s First Amended
Complaint and are assumed to be true for the purposes of our review of
the district court’s 12(b)(6) dismissals. See In re Daou Sys., Inc., 411 F.3d
1006, 1012 n.1 (9th Cir. 2005).
6 ESG CAPITAL PARTNERS V. VENABLE LLP

Attorney Meyer and Stratos named the company Soumaya
Securities after billionaire Carlos Slim’s late wife, Soumaya,
and attorney Meyer told managing agent Burns that “Dennis”
was affiliated with Slim. “Dennis” was not actually affiliated
with Slim. And Soumaya Securities was not authorized to do
business in California, had no bank accounts, and filed no tax
returns.

Stratos, the alleged con artist, masqueraded as “Ken
Dennis” in connection with all Soumaya Securities
transactions, yet Soumaya Securities’ operating documents,
which attorney Meyer prepared, listed Stratos as Soumaya
Securities’ manager and sole member and “Kenneth Dennis”
as its CEO. Attorney Meyer maintained a client trust account
only for Stratos. As “Dennis,” the CEO of Soumaya
Securities, Stratos negotiated the sale of pre-IPO Facebook
stocks to ESG Capital from March to April 2011.

Between February and November 2011, attorney Meyer
met with Stratos 25 times in person and spoke to Stratos at
least 100 times on the phone. Managing agent Burns had
questions before confirming the deal and called attorney
Meyer on April 18, 2011, to verify “Dennis’s”
representations. During their phone conversation, attorney
Meyer informed managing agent Burns that “Dennis” was in
contact with Facebook executives and had access to millions
of Facebook shares. Attorney Meyer told managing agent
Burns that “Dennis” “is who he says he is.” In addition,
attorney Meyer assured managing agent Burns that “Dennis”
and Soumaya Securities were Slim’s affiliates, that the sale
was legitimate, that attorney Meyer represented “Dennis” and
Soumaya Securities in the sale, and that attorney Meyer
would provide deal documentation. ESG Capital pled that,
 ESG CAPITAL PARTNERS V. VENABLE LLP 7

without attorney Meyer’s assurances, ESG Capital would not
have gone through with the deal.

The day after the April 18 phone call, ESG Capital wired
$2.8 million into Venable LLP’s trust account as a deposit.
Attorney Meyer called managing agent Burns to confirm
receipt of the funds and that the “deal is on.” That day, the
entire $2.8 million was deposited into Stratos’s personal
client trust fund account, not to any account for Soumaya
Securities. Also that day, attorney Meyer had an all-day
meeting with Stratos at Venable LLP’s offices. ESG Capital
pled that, had managing agent Burns known that the $2.8
million would not be held in trust pending the sale’s
completion, he would not have authorized attorney Meyer to
release it.

Throughout the negotiations, managing agent Burns
communicated with “Dennis” through Stratos’s
wpacquisitions@gmail.com email address—the same email
address that attorney Meyer used with Stratos. Attorney
Meyer was copied on some of managing agent Burns’s emails
to “Dennis” at the email address that attorney Meyer knew
belonged to Stratos. Venable LLP interacted with Stratos
often while Stratos negotiated his deal with ESG Capital, and
Venable LLP performed various nonlegal tasks for Stratos,
such as purchasing office supplies and car insurance.

In early May 2011, after ESG Capital had made its $2.8
million deposit, Stratos needed a bank account to deposit the
funds. Stratos had been “black listed” from Citi and Wells
Fargo due to his notoriety, his poor credit, and outstanding
judgments against him. Venable LLP opened a bank account
for Soumaya Securities at Bank of America. In early July
2011, “Dennis” told managing agent Burns that the deal was
8 ESG CAPITAL PARTNERS V. VENABLE LLP

imminent and that managing agent Burns needed to wire
Soumaya Securities an additional $7.2 million. Again,
attorney Meyer provided purchase documentation to
managing agent Burns.

At managing agent Burns’s request, documentation of the
deposit stated that the funds were refundable, “in the event
the pending transaction does not close as a result of the fault
of the seller or the issuer.” Managing agent Burns emailed
confirmation to attorney Meyer and wired the money to
Soumaya Securities’ Bank of America account on July 12,
2011. Later that day, attorney Meyer emailed managing
agent Burns to confirm receipt of the wire transfer, to which
managing agent Burns responded, “Thanks David, Let’s close
a deal now!” Days after the wire transfer, Bank of America
froze the Soumaya Securities account and then closed it on
July 26. Venable LLP arranged to transfer the funds to a
third party but never told ESG Capital.

In August 2011, “Dennis” told managing agent Burns that
the deal was closing, and that he needed an additional $1.25
million to secure ESG Capital’s shares. To receive this
transfer, attorney Meyer opened a new bank account at UBS.
Venable LLP listed Stratos—and not “Dennis”—as Soumaya
Securities’ “Beneficial Owner” on the UBS account. With
this final transfer, ESG Capital’s payments to Stratos totaled
$11.25 million.

By December 22, 2011, ESG Capital still had not
received the Facebook shares, and managing agent Burns
threatened “Dennis” and attorney Meyer with legal action if
its funds were not returned. In response, managing agent
Burns received an email from Venable LLP’s counsel,
Stewart Webb, stating that “Venable received no such
 ESG CAPITAL PARTNERS V. VENABLE LLP 9

transfer and has no knowledge of the alleged transfer.”
Managing agent Burns responded by identifying each of ESG
Capital’s wire transfers made at Venable LLP’s direction,
along with the email address for “Dennis.” Webb replied that
the contact information managing agent Burns provided for
“Dennis” was filed at Venable LLP under the name Troy
Stratos, whom Venable LLP believed to be related to
“Dennis.”2 Webb told managing agent Burns that Venable
LLP did not represent any party in the transactions between
managing agent Burns and Soumaya Securities. Attorney
Meyer was terminated by Venable LLP in 2012.

After learning that ESG Capital had been defrauded,
managing agent Burns panicked and hid the news from ESG
Capital. ESG Capital claims it did not learn of the alleged
fraud and that their money had been stolen until November
2012.

ESG Capital filed suit against Stratos and Venable LLP
and attorney Meyer on March 6, 2013, alleging eight causes
of action: federal securities fraud, state law fraud, and six
nonfraud state claims for conversion, breach of fiduciary
duty, unjust enrichment, unfair competition, aiding and
abetting fraud, and conspiracy to commit fraud. On May 23,
2013, the United States issued a superseding indictment
against Stratos in connection with the Facebook fraud. On
the defendants’ motion, the district court dismissed ESG
Capital’s complaint without prejudice on June 26, 2013. The
district court then dismissed ESG Capital’s first amended

2
Since the district court’s dismissal of ESG Capital’s complaint, ESG
Capital has obtained a sworn deposition from the actual Kenneth Dennis,
Stratos’s stepbrother, stating, among other things, that Kenneth was in no
way involved in the deal.
10 ESG CAPITAL PARTNERS V. VENABLE LLP

complaint (“FAC”) with prejudice on August 15, 2013,
denying leave to amend.

STANDARD OF REVIEW

Rule 12(b)(6) and 9(b) dismissals are reviewed de novo.
In re Daou Sys., 411 F.3d at 1013. A complaint must include
facts that “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court
must accept as true the facts alleged in a well-pleaded
complaint, but mere legal conclusions are not entitled to an
assumption of truth. Id. at 678–79.

A plaintiff alleging fraud must overcome a heightened
pleading standard under Rule 9(b). “In alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person’s mind may be
alleged generally.” Fed. R. Civ. P. 9(b). To allege federal
fraud, a plaintiff must also plead scienter with particularity.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
313 (2007).

Nonfraud claims must survive the minimal notice
pleading requirements of Rule 8(a)(2) and provide a short and
plain statement to survive a motion to dismiss. Fed R. Civ.
P. 8(a)(2).
 ESG CAPITAL PARTNERS V. VENABLE LLP 11

DISCUSSION

I. ESG Capital’s § 10(b) Federal Securities Fraud Claim

To state a federal securities fraud claim, in violation of
§ 10(b), a plaintiff must show: “(1) a material
misrepresentation or omission by the defendant; (2) scienter;
(3) a connection between the misrepresentation or omission
and the purchase or sale of a security; (4) reliance upon the
misrepresentation or omission; (5) economic loss; and (6)
loss causation.” Thompson v. Paul, 547 F.3d 1055, 1061 (9th
Cir. 2008) (quoting Stoneridge Inv. Partners, LLC v.
Scientific-Atlanta, 552 U.S. 148, 157 (2008)).

Section 10(b) is the general anti-fraud provision of the
Securities Exchange Act of 1934. 15 U.S.C. § 78j(b). Its
requirements operate in conjunction with Securities and
Exchange Commission Rule 10b–5. As this court has
explained,

Section 10(b) of the Exchange Act of 1934,
15 U.S.C. § 78j(b), makes it unlawful “for any
person . . . [t]o use or employ, in connection
with the purchase or sale of any security . . .
any manipulative or deceptive device or
contrivance in contravention of such rules and
regulations as the Commission may
prescribe[.]” SEC Rule 10b–5, promulgated
under the authority of section 10(b), in turn,
provides:

It shall be unlawful for any person . . . (a) To
employ any device, scheme, or artifice to
defraud,
12 ESG CAPITAL PARTNERS V. VENABLE LLP

(b) To make any untrue statement of a
material fact or to omit to state a material fact
necessary in order to make the statements
made, in light of the circumstances under
which they were made, not misleading, or

(c) To engage in any act, practice, or course of
business which operates or would operate as
a fraud or deceit upon any person, in
connection with the purchase or sale of any
security. 17 C.F.R. § 240.10b–5.

In re Daou Sys., 411 F.3d at 1014 (alterations in original).
The 1995 Private Securities Litigation Reform Act
(“PSLRA”) raised the pleading standard for federal securities
fraud claims under § 10(b) of the Securities Exchange Act by
adding that a plaintiff must plead with particularity both
falsity and scienter. 15 U.S.C. § 78u-4(b)(1)–(2). A plaintiff
must “state with particularity both the facts constituting the
alleged violation, and the facts evidencing scienter, i.e., the
defendant’s intention to deceive, manipulate, or defraud.”
Tellabs, Inc., 551 U.S. at 313 (internal quotation marks
omitted). The federal standard is thus higher than the Rule
9(b) standard for common law fraud allegations, which
requires that a plaintiff plead with particularity only the
circumstances constituting fraud, while other circumstances,
such as intent, may be stated generally. Fed. R. Civ. P. 9(b);
see also In re Daou Sys., 411 F.3d at 1014–15 (discussing
how the PSLRA raised the pleading standard).

The court evaluates the complaint as a whole to determine
if the facts give rise to a strong inference of scienter,
considering competing nonfraudulent inferences. Tellabs,
551 U.S. at 322–23. A strong inference is one that is “cogent
 ESG CAPITAL PARTNERS V. VENABLE LLP 13

and at least as compelling as any opposing inference of
nonfraudulent intent.” Id. at 324 (emphasis added). That is,
the fraudulent inference need not be more compelling than its
nonfraudulent alternatives; if two possible inferences—one
fraudulent and the other nonfraudulent—are equally
compelling, a plaintiff has demonstrated a strong inference of
scienter.

According to the district court, ESG Capital failed to
sufficiently plead the first, second, and fourth elements: (1)
material misrepresentation or omission, (2) the defendant’s
scienter, and (4) the plaintiff’s reliance. We find that the
district court erred and that ESG Capital sufficiently pled its
§ 10(b) securities fraud claim.

A. Material Misrepresentations or Omissions

Venable LLP maintains that ESG Capital failed to plead
that attorney Meyer made material misrepresentations or
omissions. To make misrepresentations under § 10(b),
attorney Meyer must be the “maker” of the statements. Janus
Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135,
142–43 (2011). In addition, if an attorney has a duty to
disclose, the attorney is liable for failing to provide truthful,
nonmisleading information. Thompson, 547 F.3d at 1063.

i. Meyer was the Maker of the False Statements

“[T]he maker of a statement is the entity with authority
over the content of the statement and whether and how to
communicate it.” Janus Capital Grp., 564 U.S. at 144.
Merely preparing or publishing another’s statement does not
make someone the “maker” of the statement, and attribution
to another party generally indicates that the attributed party
14 ESG CAPITAL PARTNERS V. VENABLE LLP

is the “maker.” Id. at 142–43. In Janus, the Supreme Court
considered whether an investment fund or its wholly owned
subsidiary of investment advisers was the “maker” of false
statements in its investment prospectus. The investment fund
owned the subsidiary, but the two corporate entities were
legally separate, with separate boards of trustees. Id. at
146–47. The investment fund had a statutory obligation
under the SEC to file an investment prospectus. Id. at 147.
The Supreme Court held that, although the investment
advisers were significantly involved in preparing the
prospectuses, their assistance was “subject to the ultimate
control” of the investment fund. Id. at 148. The investment
fund was thus the “maker” of the statements in its prospectus.
Id.

ESG Capital alleged that attorney Meyer made multiple
statements regarding the securities sale. The district court
found that attorney Meyer did not make material
misrepresentations or omissions, since “Meyer simply
communicated Soumaya [Securities’s] understanding of the
deal, not his own.” Attorney Meyer prefaced many of his
emails with: “It is Soumaya’s understanding . . . .” While it
is true that attributing a statement to another party generally
indicates that party as the “maker” of the statement, see id. at
142–43, we are not convinced that such a short, easy preface
could shield a messenger from liability in all circumstances.

Even assuming that this disclaimer was sufficient to
indicate that Soumaya Securities or Stratos was the “maker”
of the statements in attorney Meyer’s emails, attorney Meyer
made other false statements directly to ESG Capital.
Attorney Meyer told managing agent Burns that “he
represented ‘Ken Dennis’ and Soumaya Securities in
connection with pre-IPO Facebook transactions,” that
 ESG CAPITAL PARTNERS V. VENABLE LLP 15

“Dennis” was affiliated with Slim, and that Dennis “is who he
says he is.” Yet Soumaya Securities was not affiliated with
Slim, contrary to attorney Meyer’s representations, and
“Dennis” was not who he purported to be.

Attorney Meyer corresponded with Stratos at Stratos’s
wpacquisitions@gmail.com email address —the same email
address that Stratos used as “Ken Dennis” in its
communications with ESG Capital. Attorney Meyer was
copied on emails between ESG Capital and “Dennis” at this
email address, so attorney Meyer must have known that ESG
Capital believed it was communicating with “Ken Dennis”
when it was actually emailing Troy Stratos. Finally, attorney
Meyer told ESG Capital that its $2.8 million deposit would be
released to Soumaya Securities, when in fact it was put into
Stratos’s personal client trust account.

Unlike the statements in the Janus investment prospectus,
which were reasonably attributed to the investment fund,
attorney Meyer made assurances to managing agent Burns on
his own behalf. Attorney Meyer detailed his relationship to
“Dennis” and made personal assurances regarding the
Facebook deal and ESG Capital’s deposit.

Not only did attorney Meyer make false statements to
managing agent Burns, he also made material omissions
when he failed to reveal that there was no Facebook deal; that
Stratos, not Soumaya Securities, was Venable LLP’s client;
and that ESG Capital’s $2.8 million deposit would be
immediately dispersed to Stratos.
16 ESG CAPITAL PARTNERS V. VENABLE LLP

ii. Meyer Had a Duty to Disclose to ESG Capital

When attorneys have a duty to disclose information to
third parties, they may be liable for misrepresentations under
§ 10(b). Thompson, 547 F.3d at 1061. In determining
whether an attorney is liable under § 10(b), this court in
Thompson surveyed other circuits’ decisions, finding that
attorneys may have a duty to nonclient third parties. Id. at
1061–63. In our survey of third party duties in Thompson, we
took note of the Sixth Circuit’s decision in Rubin v.
Schottenstein, Zox & Dunn, 143 F.3d 263 (6th Cir. 1998) (en
banc). In Rubin, an attorney represented a company in
connection with the sale of the company’s debt and stock.
Thompson, 547 F.3d at 1061–62 (citing Rubin, 143 F.3d at
266–68). The attorney assured a prospective investor that the
company’s stock was “fine,” when the attorney knew that the
company was actually in default on a loan, and the
investment would have constituted further default. Id. The
Sixth Circuit en banc panel held that the attorney had a duty
to the investor, even though the investor was not his client.
Id.

Applying Rubin’s logic, this court in Thompson ultimately
articulated the following rule: “An attorney who undertakes
to make representations to prospective purchasers of
securities is under an obligation, imposed by Section 10(b),
to tell the truth about those securities.” Id. at 1063.

Venable LLP argues that Thompson applies only when an
attorney represents the seller of securities. Venable LLP
contends that Facebook was the seller of the pre-IPO
securities while Stratos was merely a middleman. As the
argument goes, since attorney Meyer represented a nonseller,
 ESG CAPITAL PARTNERS V. VENABLE LLP 17

attorney Meyer cannot be liable under the rule articulated in
Thompson.

Venable LLP’s argument fails for two reasons. First,
Venable LLP mischaracterizes the rule in Thompson, which
explicitly states, “That [the attorney] may have an
attorney–client relationship with the seller of the securities is
irrelevant under Section 10(b).” Id. Second, it is true that
Stratos was not the original seller of the securities, but Stratos
was the seller for ESG Capital’s purposes. ESG Capital dealt
only with Stratos and paid Stratos for the pre-IPO stocks.
Facebook took no part in the sale between ESG Capital and
Stratos and therefore cannot be considered the seller. What’s
more, taking ESG Capital’s allegations as true—as we must
at the pleading stage—there was no actual seller, certainly not
Facebook. It thus defies logic to shield Venable LLP and
attorney Meyer from liability under the theory that they did
not represent Facebook, whom they consider the true seller,
when they did represent Stratos, who acted as the seller.

B. Scienter

ESG Capital must plead facts that lead to a strong
inference of scienter. Tellabs, 551 U.S. at 322. ESG Capital
can prove scienter by showing deliberate recklessness or
“some degree of intentional or conscious misconduct.” South
Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 782 (9th Cir.
2008) (quoting In re Silicon Graphics Inc. Sec. Litig., 183
F.3d 970, 977 (9th Cir. 1999)).

The district court held that “[n]othing Meyer did for
Stratos or Soumaya [Securities] was inherently suspicious—
and thus does not bespeak his knowledge of the fraud. That
Meyer knew some details of the purported Facebook
18 ESG CAPITAL PARTNERS V. VENABLE LLP

transaction, set up several bank accounts for Soumaya
[Securities], facilitated wire transfers from ESG Capital on
behalf of Soumaya [Securities], and disbursed funds to
Stratos fails to demonstrate that Meyer knew there was no
actual deal in the works.” But the district court applied the
scienter pleading standard too stringently; while federal
securities fraud claims require more particularized pleadings,
the standard is not insurmountable. ESG Capital need not
prove its case at the outset. Rather, it has to provide a
narrative of fraud—facts which, if true, substantiate an
explanation at least as plausible as a nonfraudulent
alternative. While no single factual allegation substantiates
an inference of attorney Meyer’s scienter, ESG Capital has
provided a narrative that strongly points to the existence of
scienter.

ESG Capital sufficiently pled facts supporting a strong
inference that attorney Meyer knew that Stratos was using the
alias “Dennis” and that ESG Capital believed it was
communicating with “Dennis,” not Stratos. Attorney Meyer
emailed Stratos at Stratos’s wpacquisitions@gmail.com email
address. ESG Capital emailed “Dennis” at this same email
address. Attorney Meyer was copied on emails from ESG
Capital to “Dennis” at that email address.

ESG Capital also provided facts sufficient to support the
inference that attorney Meyer knew Stratos’s identity and
scheme. Between February and November 2011, attorney
Meyer and Stratos had more than 100 phone conversations
and 25 in-person meetings. ESG Capital pled that attorney
Meyer held an all-day conference with Stratos after ESG
Capital wired its $2.8 million deposit. Attorney Meyer then
consistently authorized payments from Stratos’s client trust
account between April 20, 2011, through July 2011. Venable
 ESG CAPITAL PARTNERS V. VENABLE LLP 19

LLP opened bank accounts for Stratos, since he was “black
listed” and unable to open bank accounts in his own name.
Venable LLP also performed thousands of dollars’ worth of
nonlegal services for Stratos, such as buying office supplies
and car insurance. Certainly, ESG Capital has pled facts
sufficient to show a cogent and compelling inference of
scienter.

C. Reliance

Because the complaint alleges a “causal connection
between the alleged fraud and the securities transaction,”
ESG Capital sufficiently pled reliance. Desai v. Deutsche
Bank Sec. Ltd., 573 F.3d 931, 939 (9th Cir. 2009) (per
curiam). Although negotiations between ESG Capital and
Stratos were underway before attorney Meyer became
involved, ESG Capital had not wired any money to Stratos
prior to attorney Meyer’s involvement. ESG Capital pled that
after attorney Meyer told managing agent Burns that the “deal
is on,” ESG Capital wired the $2.8 million deposit. Notably,
this first transfer was made the day after attorney Meyer
assured managing agent Burns that “Dennis” was who he said
he was and that the deal was legitimate. In addition, ESG
Capital pled that it wired $11.25 million to Soumaya
Securities in direct reliance on attorney Meyer’s assurances
and involvement. Since ESG Capital showed that it wired
funds to ESG Capital only after attorney Meyer’s assurances,
it established the causal connection necessary for reliance.

II. ESG Capital’s State Law Fraud Claim

The pleading standard under Rule 9(b) for state law fraud
claims is lower than the federal PSLRA standard, as Rule
9(b) requires particularity only in regard to the circumstances
20 ESG CAPITAL PARTNERS V. VENABLE LLP

of fraud, while “[m]alice, intent, knowledge, and other
conditions of a person’s mind” may be pled generally. Fed.
R. Civ. P. 9(b); see also In re Daou Sys., 411 F.3d at 1014–15
(describing how the PSLRA heightened Rule 9(b) fraud
pleading standards for private securities fraud claims). As
discussed, ESG Capital’s pleadings meet the PSLRA
standard. Its complaint necessarily meets the Rule 9(b)
standard as well.

III. California Civil Procedure Code § 340.6’s One-
Year Statute of Limitations

The district court held that ESG Capital’s state law claims
for conversion, breach of fiduciary duty, unjust enrichment,
unfair competition, aiding and abetting fraud, and conspiracy
to commit fraud were barred by the one-year statute of
limitations articulated in California Civil Procedure Code
§ 340.6. Section 340.6 applies to conduct that falls within the
scope of providing legal services. See Cal. Civ. Proc. Code
§ 340.6(a) (“An action against an attorney for a wrongful act
or omission, other than for actual fraud, arising in the
performance of professional services shall be commenced
within one year after the plaintiff discovers, or through the
use of reasonable diligence should have discovered, the facts
constituting the wrongful act or omission.”). In applying
§ 340.6, the district court focused on Venable LLP’s possible
role as an escrow agent holding funds for ESG Capital. It
held that ESG Capital failed to establish an escrow
relationship and therefore did not show that Venable LLP was
acting outside the scope of providing legal services. The
district court found that, because Venable LLP was providing
legal services, the one-year statute of limitations applied and
barred ESG Capital’s state law claims.
 ESG CAPITAL PARTNERS V. VENABLE LLP 21

The California Supreme Court has explained that § 340.6
does not apply merely because an attorney’s alleged
misconduct “occurs during the period of legal representation
or because the representation brought the parties together and
thus provided the attorney the opportunity to engage in the
misconduct.” Lee v. Hanley, 61 Cal. 4th 1225, 1238 (2015)
(holding that § 340.6 did not bar plaintiff’s fee dispute claim
that attorney refused to return unearned attorney’s fees,
because the claim could also be construed as conversion).
The court in Lee recognized that attorneys often have the
same obligations as nonattorneys and explained that the
question is “not simply whether a claim alleges misconduct
that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed,
necessarily depends on proof that an attorney violated a
professional obligation.” Id.

It is therefore not dispositive that Venable LLP did not act
as escrow agent for ESG Capital or that ESG Capital’s claim
arises from Venable LLP and attorney Meyer’s attorney
relationship to Stratos. The question is whether ESG
Capital’s claims for conversion, breach of fiduciary duty,
unjust enrichment, and unfair competition “necessarily
depend on proof that [Venable LLP and attorney Meyer]
violated a professional obligation in the course of providing
professional services.” Id. at 1239. Only ESG Capital’s
breach of fiduciary duty claim necessarily involves the
violation of a professional obligation and is therefore subject
to the one-year statute of limitations of § 340.6. See
Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal. App.
4th 1105, 1121–22 (2014), as modified on denial of reh’g
22 ESG CAPITAL PARTNERS V. VENABLE LLP

(Feb. 27, 2014).3 ESG Capital’s other claims for conversion,
unjust enrichment, and unfair competition do not so depend.

IV. The Agent’s Immunity Rule

The district court dismissed ESG Capital’s aiding and
abetting and conspiracy to commit fraud claims, holding that
these claims were barred by the Agent’s Immunity Rule.4
The Agent’s Immunity Rule shields an attorney who merely
acted as an agent or employee of a third party when the third
party had a duty to the plaintiff. Cal. Civ. Code § 1714.10.
The Rule does not shield an attorney who had an independent
legal duty to the plaintiff, or an attorney who went beyond a
professional duty as part of a conspiracy for the attorney’s
financial gain. Cal Civ. Code § 1714.10(c); Rickley v.
Goodfriend, 212 Cal. App. 4th 1136, 1149 (2013), reh’g
denied (Feb. 5, 2013), review denied (Apr. 10, 2013).

ESG Capital’s aiding and abetting fraud and conspiracy
to commit fraud claims satisfy the independent legal duty
exception to the Agent’s Immunity Rule. “It is well
established that an attorney has an independent legal duty to

3
In the alternative, ESG Capital argues that the one-year period did not
begin until November 2012, since Burns initially hid the fact that the
Facebook deal was fraudulent. This argument is not persuasive, however.
As ESG Capital’s managing partner, Burns’s knowledge is imputed to
ESG Capital. ESG Capital thus acquired sufficient notice to start the
limitations period in December 2011, when Burns threatened Meyer with
legal action on December 22, after it had not received any Facebook
shares.
4
In applying the Agent’s Immunity Rule, the district court relied on its
finding that Venable LLP was not acting as an escrow agent. While
Venable LLP’s acting as escrow agent would be sufficient to establish a
duty for this claim, it is not necessary. See Lee, 61 Cal. 4th at 1238.
 ESG CAPITAL PARTNERS V. VENABLE LLP 23

refrain from defrauding nonclients.” Rickley, 212 Cal. App.
4th at 1151. Moreover, attorney Meyer had an independent
legal duty to ESG Capital when he accepted and disbursed
ESG Capital’s funds. Id. at 1156–57 (holding that attorneys
had an independent legal duty to a third party when they held
their clients’ funds in a trust account, to be dispersed to their
clients and third parties). As a result, ESG Capital’s aiding
and abetting and conspiracy to commit fraud claims are not
barred by the Agent’s Immunity Rule.5

V. ESG Capital’s State Law Claims

The district court did not discuss the merits of ESG
Capital’s state law claims, finding that they were either time-
barred or precluded by the Agent’s Immunity Rule. Because
we find, at this stage, that only ESG Capital’s breach of
fiduciary duty claim is barred by § 340.6 and that the Agent’s
Immunity Rule does not apply to ESG Capital’s aiding and
abetting and conspiracy claims, we address whether ESG
Capital sufficiently pled its state law claims for conversion,

5
ESG Capital must show an independent legal duty to avoid application
of the Agent’s Immunity Rule; yet it must show absence of a professional
obligation to avoid § 340.6’s statute of limitations. Because the parties
have not addressed this issue and the issue cannot be resolved on the face
of the complaint, we leave it to be considered by the district court on
remand if necessary after discovery. See Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (“A claim
may be dismissed under Rule 12(b)(6) on the ground that it is barred by
the applicable statute of limitations only when the running of the statute
is apparent on the face of the complaint.”) (internal quotation marks
omitted); Lee, 61 Cal. 4th at 1240 (finding dismissal under the Agent’s
Immunity Rule inappropriate because, without factual development, it
could not be said that a claim “necessarily depend[ed] on proof that [the
defendant] violated a professional obligation”).
24 ESG CAPITAL PARTNERS V. VENABLE LLP

unjust enrichment, unfair competition, aiding and abetting
fraud, and conspiracy to commit fraud.

Conversion. To allege conversion, a plaintiff must show:
(1) it possessed property, (2) the defendant disposed of the
property in a manner inconsistent with the plaintiff’s property
rights, and (3) damages. Lee, 61 Cal. 4th at 1240. A specific
sum of money may constitute property for a conversion
action. Id. Here, ESG Capital sufficiently alleged that it
transferred funds to attorney Meyer and Venable LLP, who
placed those funds into a client trust account for the purpose
of ESG Capital’s stock purchase.

Furthermore, an unauthorized transfer of funds is
sufficient to constitute disposal of a plaintiff’s funds in a
manner inconsistent with the plaintiff’s rights. See Virtanen
v. O’Connell, 140 Cal. App. 4th 688, 707–08 (2006). ESG
Capital satisfied the disposal element when it alleged that
attorney Meyer placed its funds into an unauthorized client
trust account and issued checks to Stratos and Venable LLP
using those funds without ESG Capital’s knowledge or
permission. ESG Capital has pled $2.8 million in damages,
as the value of the property at the time of the conversion.
ESG Capital thus sufficiently pled its conversion claim.

Unjust Enrichment. Some California courts allow a
plaintiff to state a cause of action for unjust enrichment, while
others have maintained that California has no such cause of
action. Compare Prakashpalan, 223 Cal. App. 4th at 1132
(allowing plaintiffs to state a cause of action for unjust
enrichment) with Durell v. Sharp Healthcare, 183 Cal. App.
4th 1350, 1370 (2010) (“There is no cause of action in
California for unjust enrichment.”) (internal quotation marks
and citation omitted). While California case law appears
 ESG CAPITAL PARTNERS V. VENABLE LLP 25

unsettled on the availability of such a cause of action, this
Circuit has construed the common law to allow an unjust
enrichment cause of action through quasi-contract. See
Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th
Cir. 2015) (“When a plaintiff alleges unjust enrichment, a
court may ‘construe the cause of action as a quasi-contract
claim seeking restitution.’”) (quoting Rutherford Holdings,
LLC v. Plaza Del Rey, 223 Cal. App. 4th 221, 231 (2014)).
We therefore allow the cause of action, as we believe it states
a claim for relief as an independent cause of action or as a
quasi-contract claim for restitution.

To allege unjust enrichment as an independent cause of
action, a plaintiff must show that the defendant received and
unjustly retained a benefit at the plaintiff’s expense.
Lectrodryer v. SeoulBank, 77 Cal. App. 4th 723, 726 (2000).
ESG Capital alleged that attorney Meyer and Venable LLP
(1) received $2.8 million from ESG Capital, (2) promised to
hold the deposit in a client trust account for Soumaya
Securities, (3) promised that those funds would be refundable,
(4) actually placed those funds in a client trust account for
Stratos, and (5) paid themselves $350,000 with those funds.
These allegations are sufficient to show that attorney Meyer
and Venable LLP received and unjustly retained $350,000 at
ESG Capital’s expense. Alternatively, ESG Capital’s
allegation of fraud resulting in the defendants’ unjust
enrichment sufficiently states a claim under quasi-contract.
See Astiana, 783 F.3d at 762.

Unfair Business Practices. To allege unfair business
practices, ESG Capital must show that attorney Meyer and
Venable LLP’s business practices were unfair, unlawful, or
fraudulent. Cal. Bus. & Prof. Code § 17200, et seq. A
fraudulent business practice is one likely to deceive the
26 ESG CAPITAL PARTNERS V. VENABLE LLP

public. See Prakashpalan, 223 Cal. App. 4th at 1134
(allowing plaintiffs to state a cause of action for unfair
business practices when they alleged that attorney-defendants
stole client funds and violated their duty of confidentiality).
A business practice is unfair when it “significantly threatens
or harms competition.” Id. at 1133 (quoting Cel-Tech
Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal 4th
163, 187 (1999)). ESG Capital sufficiently pled fraudulent or
unfair competition when it alleged that attorney Meyer and
Venable LLP: (1) assisted Stratos to “use[] ESG Capital’s
funds as his personal piggybank,” (2) placed ESG Capital’s
funds into an unauthorized client trust account, and (3) issued
checks to themselves using ESG Capital’s funds without ESG
Capital’s knowledge or permission.

Aiding and Abetting Fraud. To allege aiding and
abetting, a plaintiff must show that the defendant knowingly:
(1) substantially assisted or encouraged another to breach a
duty, or (2) substantially assisted another’s tort through an
independently tortious act. See Casey v. United States Bank
Nat’l Ass’n, 127 Cal. App. 4th 1138, 1144 (2005). Notably,
both avenues require actual knowledge; however, as
previously discussed, ESG Capital has sufficiently pled
knowledge for the purposes of its common law fraud claim.
Since it alleged that attorney Meyer knew Stratos’s real
identity and helped him create Soumaya Securities as part of
the fraudulent Facebook deal, ESG Capital has pled actual
knowledge of fraud and substantial assistance for its aiding
and abetting fraud claim.

Conspiracy to Commit Fraud. To allege a conspiracy
to commit fraud, a plaintiff must show: (1) the formation and
operation of the conspiracy, (2) wrongful conduct in
furtherance of the conspiracy, and (3) damages arising from
 ESG CAPITAL PARTNERS V. VENABLE LLP 27

the wrongful conduct. Kidron v. Movie Acquisition Corp., 40
Cal. App. 4th 1571, 1581 (1995). As with aiding and
abetting, conspiracy involves actual knowledge of the plan.
Id. ESG Capital alleged formation of the conspiracy by
showing that attorney Meyer helped create Soumaya
Securities, knowing it was unaffiliated with Slim and was
instead an empty shell unable to conduct business. As with
aiding and abetting, ESG Capital satisfied the wrongful
conduct element through its allegations of attorney Meyer’s
participation in creating Soumaya Securities, vouching for
“Dennis,” accepting and dispersing ESG Capital’s deposit,
and facilitating the fraudulent deal. As previously mentioned,
ESG Capital has pled $2.8 million in damages. ESG Capital
has sufficiently pled conspiracy.

VI. The Doctrine of In Pari Delicto Does Not Apply

The district court did not address Venable LLP’s
alternative theory of dismissal under the In Pari Delicto
doctrine. Under the In Pari Delicto doctrine, “a plaintiff who
has participated in wrongdoing cannot recover when he
suffers injury as a result of the wrongdoing.” First
Beverages, Inc. of Las Vegas v. Royal Crown Cola Co., 612
F.2d 1164, 1172 (9th Cir. 1980). Managing agent Burns,
ESG Capital’s sole managing partner, pled guilty to stealing
funds from another investment fund: ESG Capital Capital
Partners II, LLP. (Apparently, managing agent Burns gives
all of his partnerships the same name, Executive Services
Group.) Taking ESG Capital’s pleadings as true, it appears
that managing agent Burns’s guilt is wholly unrelated to the
plaintiffs in this case. Although managing agent Burns did
spend investor money, it was not the same investors or money
at issue here; managing agent Burns did not participate in the
wrongdoing alleged here but defrauded a different group of
28 ESG CAPITAL PARTNERS V. VENABLE LLP

investors with respect to a separate and unrelated investment
fund. Consequently, Venable LLP and attorney Meyer
cannot successfully assert an In Pari Delicto defense.

CONCLUSION

ESG Capital sufficiently pled its federal fraud claim; it
therefore also sufficiently pled its parallel state fraud claim.
Only one of ESG Capital’s state nonfraud claims, breach of
fiduciary duty, is barred by § 340.6’s one-year statute of
limitations. Its aiding and abetting and conspiracy claims are
not barred by the Agent’s Immunity Rule. ESG Capital
sufficiently pled its state law claims for conversion, unjust
enrichment, unfair business practices, aiding and abetting
fraud, and conspiracy to commit fraud.

We therefore affirm the district court’s dismissal of ESG
Capital’s breach of fiduciary duty claim as time-barred and
reverse the district court’s dismissal of all other claims under
Rules 12(b)(6) and 9(b).

AFFIRMED in part, REVERSED in part, and
REMANDED.