Who’s In Charge Here?

Section 20(a) of the ’34 Act creates a cause of action against defendants alleged to have been “control persons” of those who engaged in securities fraud. In the absence of a scienter pleading requirement for control person liability (a disputed question in the Second Circuit – see this post), all plaintiffs need to show at the pleading stage is: (a) there was a primary violation by a controlled person; and (b) control of the primary violator by the defendant. An unresolved issue is what is necessary to adequately plead the element of control if both the primary violator and the defendant are corporations.

In Schnall v. Annuity and Life Re (Holdings), Ltd., 2004 WL 515150 (D. Conn. March 9, 2004), the court’s answer was: not too much. XL Capital Ltd. had founded Annuity and Life Re (Holdings), Ltd. (“ANR”), the primary corporate defendant in the case, and two of XL Capital’s officers/directors served as ANR directors. In addition, during the class period XL Capital owned between 11% and 12.9% of ANR’s common stock. Based on these facts, the court found “it may reasonably be inferred that defendant XL Capital was in a position to influence and direct the activities of ANR” and therefore the plaintiffs’ Section 20(a) claim against XL Capital could go forward.

Holding: Motion to dismiss denied.

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