Gehring v. Osaic Holdings Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert Gehring, et al.,
Plaintiffs,
v.
Osaic Incorporated, et al.,
Defendants.
No. CV-25-00367-PHX-KML
ORDER
This suit is one of many filed in recent years against financial firms involving the
operation of “cash sweep programs.” These programs allow financial firms to sweep
uninvested money out of their client accounts and place it with a list of selected banks to
invest or lend. The banks pay interest to the financial firms, but the firms pass along only
a fraction of that interest to their clients. Plaintiffs Robert Gehring, Harold Hunt, and Jeana
Norris participated in cash sweep programs offered by certain defendants. According to
plaintiffs, the way those programs operated constituted breaches of contract or unjust
enrichment, breaches of fiduciary duty, and violations of a federal statute. Some of
plaintiffs’ claims fail, but the central claims involving breach of contract and breach of
fiduciary duty may proceed.
I. Background
A. Defendants
Defendants are American Portfolios Advisors, Inc. (“APA”), Osaic Wealth, Inc.
(“Osaic Wealth”), Osaic Institutions, Inc. (“Osaic Institutions”)—collectively “Osaic
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Broker-Advisors”—and Osaic, Inc. There is a complicated history of acquisitions and
name changes related to the defendants, which is mostly irrelevant for present purposes.
(See Doc. 17 at 9–11.) The following is a greatly-simplified version of that history.
Osaic, Inc. is a Maryland corporation headquartered in Arizona. (Doc. 17 at 7.)
Osaic, Inc. is the parent company of the Osaic Broker-Advisors. In 2022, Osaic, Inc. (then
called “Advisor Group Holdings, Inc.”) acquired American Portfolios Holdings, Inc.,
which in turn owned APA and its affiliated broker-dealer American Portfolios Financial
Services (“APFS”). (Doc. 17 at 7–8.)
APA was a Delaware corporation headquartered in New York. (Doc. 17 at 7.) APA
was formerly registered as an investment advisor with the SEC. (Doc. 17 at 7.) APA offered
personalized investment advisory services to individuals and many other business entities,
and recommended advisory clients establish accounts through APFS for trade execution
and account service. (Doc. 17 at 7.) Following its 2022 acquisition, APA was subsumed
into Osaic Wealth, along with its affiliate APFS. (Doc. 17 at 8.)
Osaic Wealth is a Delaware corporation and SEC-registered broker-dealer and
investment advisor headquartered in Arizona. (Doc. 17 at 8.) Osaic Wealth is the company
into which APA and APFS were consolidated and integrated. (Doc. 17 at 8.)
Osaic Institutions is an SEC-registered broker-dealer and investment advisor
incorporated and headquartered in Connecticut. (Doc. 17 at 8.) Osaic Institutions is the
successor to Infinex Financial Group, which Osaic, Inc. acquired in 2022. (Doc. 17 at 8.)
B. Plaintiffs
Plaintiffs are Robert Gehring, Harold Hunt, and Jeana Norris. Gehring, Hunt, and
Norris seek to represent a class of investors who participated in the defendants’ cash sweep
programs and were allegedly underpaid on their cash balances.
Gehring is an individual investor from New Hampshire who maintained both an
APA advisory individual retirement account (“IRA”) and a separate non-advisory IRA
through APFS beginning in 2016. (Docs. 17 at 6; 28 at 7.) After the consolidation of APA
and APFS into Osaic Wealth, customer accounts continued under the Osaic cash sweep
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program. (Doc. 17 at 8, 22.) Gehring’s APA advisory account was closed the day before
the acquisition (Doc. 29 at 10), but it appears his non-advisory account with APFS
continued under the sweep program at Osaic Wealth.
Hunt and Norris, both Tennessee residents, opened self-directed IRAs with Infinex
Investments in 2016 and 2015, respectively. (Docs. 17 at 6–7; 30 at 10.) After Osaic, Inc.’s
acquisition of Infinex, their accounts became Osaic Institutions accounts. (Doc. 17 at 26.)
All three plaintiffs allege their uninvested cash was moved into defendants’ cash
sweep programs and that they were subsequently paid unreasonably low interest rates.
C. Cash Sweep Programs
A cash sweep program is a common offering from investment advisors and
brokerages. (Doc. 37 at 13.) A typical cash sweep program takes idle funds (e.g., funds not
currently invested) and “sweeps” them into an interest-bearing account to earn money in
the interim. (Doc. 37 at 13.) Generally, customers with brokerage or investment accounts
are paid out a portion of the interest generated by the swept funds. (Doc. 17 at 4.) The
operation of the cash sweep programs at issue in this case is set forth in the complaint,
which the court accepts for purposes of the motions to dismiss.
Here, defendants provided a cash sweep program to customers with brokerage
accounts, investment advisory accounts, and IRAs. (Doc. 17 at 20.) Defendants designed
their cash sweep program to ensure they retained nearly all of the interest earnings. (Doc.
37 at 13.) Under the sweep program, uninvested cash is automatically transferred to
interest-bearing deposit accounts at participating program banks. (Doc. 17 at 22–23.) The
banks pay interest to defendants, which in turn pay a lower rate to customers, retaining the
difference as revenue. Customers are automatically enrolled in the sweep program when
opening brokerage or advisory accounts unless they affirmatively opt out. (Doc. 37 at 14,
34.) Customers who opt out may leave funds as a “free credit balance,” which does not
earn interest and is not FDIC-insured. (See Doc. 37-2 at 13.)
Plaintiffs allege defendants’ standardized account agreements incorporated sweep-
program materials and imposed obligations to act in clients’ best interests and to set and
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periodically review sweep interest rates based on economic, market, and business
conditions, including paying a “reasonable” rate. (Doc. 17 at 16–20.) Plaintiffs cite, among
other materials, Osaic Wealth’s and Osaic Institutions’ Form Client Relationship
Summaries and a Broker Dealer Firm Brochure as reflecting best-interest and fiduciary-
type commitments in connection with brokerage and advisory services. (Doc. 17 at 13, 16–
17.) Plaintiffs also allege defendants’ retirement-account materials include fiduciary
acknowledgments and other representations emphasizing reasonable rates of return on IRA
cash balances. (Doc. 17 at 18–19.) Plaintiffs contend defendants breached these contractual
and fiduciary obligations by designing and maintaining the sweep program to benefit
defendants more than clients, including by paying unreasonably low sweep rates and
recommending continued use of the sweep program. (Doc. 17 at 46–47.) Plaintiffs further
allege fiduciary obligations arising under the Investment Advisers Act of 1940 (“IAA”)
and the Regulation Best Interest: The Broker Dealer Standard of Conduct. (Doc. 17 at 11–
13.) Plaintiffs also point to the Internal Revenue Code and U.S. Treasury Regulations as
requiring reasonable interest rates for some or all sweep deposits. (Doc. 17 at 15–16.)
According to plaintiffs, defendants failed to honor their contractual and fiduciary
obligations, which became particularly apparent when short-term interest rates rose sharply
beginning in March 2022. (Doc. 17 at 5.) While benchmark rates climbed above 5%, sweep
rates allegedly remained near zero (and never more than 1.5%, depending on balances),
allowing defendants to retain most of the increased spread and generate millions of dollars
in revenue. (Docs. 17 at 5–6, 31–32, 35; 27-10 at 8.)
Defendants do not dispute sweep rates remained low relative to benchmark rates but
contend all material terms were disclosed and no promise of “reasonable” or market-
matching rates was made. (Doc. 30 at 7.) Defendants also contend customers could have
opted out or selected alternative products (such as money market funds) if they sought
higher yields. (Doc. 29 at 9–10.) The documents defendants ask the court to consider
emphasize that sweep rates may vary over time and may be zero. (Docs. 29 at 6; 27-15 at
7; 27-27 at 25.)
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D. Claims Alleged
Based on the above facts, plaintiffs assert the following claims:
1. Gehring, Hunt, and Norris allege breach of fiduciary duty against all defendants.
(Doc. 17 at 46.)
2. Gehring, Hunt, and Norris allege breach of contract against all defendants. (Doc. 17
at 47.)
3. Gehring, Hunt, and Norris allege unjust enrichment against all defendants. (Doc. 17
at 48.)
4. Gehring, Hunt, and Norris allege a violation of the IAA, 15 U.S.C. § 80b-1 et seq.,
against APA, Osaic Wealth, and Osaic Institutions.1 (Docs. 17 at 49; 37 at 48.)
II. Legal Standards
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (simplified). This is not a “probability requirement,” but a
requirement that the factual allegations show “more than a sheer possibility that a defendant
has acted unlawfully.” Id. A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim
for relief . . . [is] a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
As to statute-of-limitations arguments, a claim will be dismissed as untimely at the
pleading stage only when the statute-of-limitations violation is apparent on the face of the
complaint. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th
Cir. 2010). Dismissal is only appropriate when it appears beyond doubt that the plaintiff
can prove no set of facts establishing the timeliness of the claim. Supermail Cargo, Inc. v.
United States, 68 F.3d 1204, 1206 (9th Cir. 1995). In other words, for dismissal to occur at
this stage, untimeliness must be obvious and there must be no real possibility a plaintiff
1 The IAA claim against Osaic, Inc. was withdrawn in plaintiffs’ response. (Doc. 37 at 53.)
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could show the claim is timely.
III. Parent Company Liability Against Osaic, Inc.
Plaintiffs apparently seek to hold the parent company Osaic, Inc. liable under
several overlapping theories. First, plaintiffs expressly contend Osaic, Inc.’s subsidiary
companies—Osaic Wealth, Osaic Institutions, and APA—acted as its agents, such that
Osaic, Inc. is vicariously liable for their breaches of contract and fiduciary duty under
principles of respondeat superior. (Doc. 17 at 47–48.) Second, by hinting that Osaic, Inc.
disregarded the corporate separateness of its subsidiaries and therefore should be liable for
any breaches committed by the Osaic Broker-Advisors, plaintiffs’ allegations imply a
broader alter-ego or veil-piercing theory. (See Doc. 17 at 47–48 (alleging Osaic, Inc.
“knowingly encouraged, directed, and participated in” the breaches of the Osaic Broker-
Advisors).) Finally, plaintiffs contend Osaic, Inc. was itself a party to the contracts at issue
by virtue of statements in a cash sweep program brochure allegedly identifying it as one of
the entities controlling the program. (See Docs. 17 at 47–48; 37 at 51–52.) Osaic, Inc.
contests each of these theories. (See generally Doc. 28.)
Plaintiffs do not clearly identify the law governing most of their claims. In cases
filed under the Class Action Fairness Act like this one, a court should ordinarily apply the
forum state’s choice-of-law rules to state-law claims. In re Hyundai & Kia Fuel Econ.
Litig., 926 F.3d 539, 561 (9th Cir. 2019) (en banc). Arizona follows the Restatement’s
“most significant relationship” test for choice-of-law issues. Labertew v. Chartis Prop.
Cas. Co., 363 F. Supp. 3d 1031, 1036 (D. Ariz. 2019); Bates v. Superior Court, 749 P.2d
1367, 1369–70 (Ariz. 1988). Defendants analyze most issues under New York and
Connecticut law, and plaintiffs do not object. Although the court is dubious that New York
or Connecticut law would apply to claims for breach of fiduciary duty and unjust
enrichment against Osaic, Inc., a Maryland company headquartered in Arizona, it appears
the outcome would not differ if Arizona law applied. The court therefore analyzes Osaic,
Inc.’s motion to dismiss under the law the parties cited. See In re Korean Air Lines Disaster
of Sept. 1, 1983, 932 F.2d 1475, 1495 (D.C. Cir. 1991) (“Unlike jurisdictional issues, courts
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need not address choice of law questions sua sponte.”); see also Mont. Power Co. v. Pub.
Util. Dist. No. 2 of Grant Cnty., Wash., 587 F.2d 1019, 1022 (9th Cir. 1978). In any
amended complaint, plaintiffs should make clearer the applicable laws.
A. Analysis
i. Breach of Contract
Osaic, Inc. is the parent company of the Osaic Broker-Advisors. It is undisputed that
Osaic, Inc. was not a signatory to any customer or advisory contract at issue; those contracts
were executed between plaintiffs and the respective subsidiaries. Plaintiffs’ contract-based
claims nonetheless rest on the assertion that Osaic, Inc. was either a party to the customer
contracts or vicariously liable for its subsidiaries’ contractual breaches. Neither theory is
supported by the complaint.
The only document plaintiffs cite connecting Osaic, Inc. directly to their contracts
is the “Sweep Program Disclosure Document.” (Doc. 37 at 51.) That document states:
“Osaic, Inc., through its affiliated Broker-Dealers, Osaic Institutions Inc. and Osaic
Wealth, Inc., (referred to as ‘Broker-Dealer,’ ‘we’, ‘our’, or ‘us’) offers a cash sweep
program (‘Sweep Program’) for [certain] accounts[.]” (Doc. 27-10 at 2.) Plaintiffs contend
that using the word “we” makes Osaic, Inc. a party to the contract. But “we” appears to
refer only to the affiliated broker-dealers Osaic Institutions and Osaic Wealth, the entities
authorized to contract with customers. Nothing in the Sweep Program Disclosure
Document or plaintiffs’ complaint suggests Osaic, Inc. executed, guaranteed, or assumed
any contractual agreements with plaintiffs. See, e.g., MBIA Ins. Corp. v. Royal Bank of
Can., 958 N.Y.S.2d 62, 2010 WL 3294302, at *25 (N.Y. Sup. Ct. 2010) (non-party
business’s name or logo on marketing materials “simply insufficient” to plead breach of
contract); see also Carte Blanche (Singapore) Pte., Ltd. v. Diners Club Int'l, Inc., 2 F.3d
24, 26 (2d Cir. 1993) (“a parent corporation and its subsidiary are [generally] regarded as
legally distinct entities and a contract under the corporate name of one is not treated as that
of both.”).
Even Osaic, Inc. directing or benefiting from its subsidiaries’ contractual
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performance would not establish privity. Under both New York and Connecticut law,
which likely do apply to any breach-of-contract claims, a party may not be held liable for
breach of a contract to which it was not a signatory. See Arroyo v. Cent. Islip UFSD, 103
N.Y.S.3d 512, 514 (N.Y. App. Div. 2019); see also Coburn v. Lenox Homes, Inc., 378 A.2d
599, 601 (Conn. 1977). Under those laws, a parent corporation cannot be liable for a
subsidiary’s contracts merely by virtue of ownership or participation in making policies.
Maki v. Travelers Cos., Inc., 44 N.Y.S.3d 220, 223 (N.Y. App. Div. 2016); Hess v. L.G.
Balfour Co., 822 F. Supp. 84, 86–87 (D. Conn. 1993).
Nor do plaintiffs plausibly allege facts establishing a principal-agent relationship
between Osaic, Inc. and its subsidiaries. To show the existence of an agency relationship,
a plaintiff must demonstrate (1) the principal authorized the agent to act on the principal’s
behalf, (2) the agent agreed to do so, and (3) the principal had the right to direct or control
how the agent carried out that work. See Wesley v. Schaller Subaru, Inc., 893 A.2d 389,
400 (Conn. 2006); see also N. Shipping Funds I, LLC v. Icon Cap. Corp., 921 F. Supp. 2d
94, 103 (S.D.N.Y. 2013). Plaintiffs allege no facts plausibly establishing a principal-agent
relationship, and they cite no authority supporting respondeat superior liability of a parent
for a subsidiary’s conduct. Regardless, New York law does not seem to support such a
theory. See Abdelhamid v. Altria Grp., Inc., 515 F. Supp. 2d 384, 394 (S.D.N.Y. 2007)
(respondeat superior does not render parent company liable for conduct of subsidiary). And
under Connecticut law, a parent may be treated as a principal only where its domination or
interference is so complete that the subsidiary functions as its agent—something not
sufficiently alleged here. See Hess v. L.G. Balfour Co., 822 F. Supp. 84, 85 (D. Conn.
1993). As a result, the agency theory fails. The same result follows if analyzed under
Arizona law. See Ruesga v. Kindred Nursing Ctrs., L.L.C., 161 P.3d 1253, 1261–62 (Ariz.
Ct. App. 2007).
Finally, to the extent plaintiffs attempt to plead alter-ego, that theory fares no better
because plaintiffs do not allege facts that would justify piercing the corporate veil. Osaic,
Inc. cites Maryland law as governing this question because Osaic, Inc. is a Maryland
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corporation (Doc. 28 at 11), and Arizona’s choice-of-law rules confirm Maryland law
applies. See TFH Props., LLC v. MCM Dev., LLC, No. CV-09-8050-PCT-FJM, 2010 WL
2720843, at *5 (D. Ariz. July 9, 2010). Maryland recognizes several situations where the
subsidiary’s corporate entity will be disregarded. Those situations include where the
corporation is used merely as a shield for the perpetration of fraud, where necessary “to
prevent evasion of legal obligations,” and where the corporation serves merely as an alter-
ego of the parent company (e.g., the parent company fails to observe the corporate entity
and deals with the subsidiary’s “property as if it were [the parent company’s]”). Hildreth
v. Tidewater Equip. Co., 838 A.2d 1204, 1210 (Md. 2003). Here, plaintiffs allege no facts
to justify piercing the corporate veil such as undercapitalization, commingling, or misuse
of the corporate form—they merely allege common ownership and profit sharing. See id.
Those allegations do not meet Maryland’s standard for disregarding corporate separateness
and piercing the corporate veil.
Accordingly, the breach-of-contract claim against Osaic, Inc. fails because plaintiffs
do not allege facts to demonstrate privity, agency, or any basis for veil-piercing.
ii. Fiduciary Duty
Plaintiffs also seek to hold Osaic, Inc. liable for breaches of fiduciary duty, claiming
it “encouraged, directed, and participated in” its subsidiaries’ management of customer
cash and that its disclosures identify it as a participant in the investment program. (Docs.
17 at 47–48; 37 at 52–53.) They argue Osaic, Inc.’s level of control gave rise to a fiduciary
relationship or, alternatively—as raised for the first time in plaintiffs’ response to the
motions to dismiss—that Osaic, Inc. aided and abetted its subsidiaries’ fiduciary breaches.
(Doc. 37 at 52–53.)
Plaintiffs’ allegations are insufficient under either theory. To state a claim for breach
of fiduciary duty under New York and Connecticut law, a plaintiff must allege (1) the
existence of a fiduciary relationship, (2) misconduct by the fiduciary, and (3) resulting
damages. See Litvinoff v. Wright, 54 N.Y.S.3d 22, 24 (N.Y. App. Div. 2017); see also
Chioffi v. Martin, 186 A.3d 15, 33 (Conn. App. Ct. 2018). Here, there is no contractual
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fiduciary relationship between plaintiffs and Osaic, Inc. Bare allegations that Osaic, Inc.
directed or managed the Osaic Broker-Advisors do not establish a fiduciary relationship.
See Marmelstein v. Kehillat New Hempstead, 892 N.E.2d 375, 378 (N.Y. 2008) (general
assertions alone inadequate to establish fiduciary relationship); see also Saint Bernard Sch.
of Montville, Inc. v. Bank of Am., 95 A.3d 1063, 1077–78 (Conn. 2014). Applying Arizona
law produces the same result. See Standard Chartered PLC v. Price Waterhouse, 945 P.2d
317, 335 (Ariz. Ct. App. 1996), as corrected on denial of reconsideration (Jan. 13, 1997).
The complaint also does not establish the elements of aiding and abetting, which
plaintiffs now claim they attempted to plead in the alternative. (See Doc. 37 at 53.) Under
New York law, the claim of aiding and abetting tortious conduct requires three elements:
“(1) a breach by a fiduciary of obligations to another, (2) knowing participation by
defendant in the breach, and (3) damages to plaintiff.” Kolbeck v. LIT Am., Inc., 939 F.
Supp. 240, 245 (S.D.N.Y. 1996), aff’d, 152 F.3d 918 (2d Cir. 1998). Once again, there are
no allegations to show Osaic, Inc. knowingly participated in its subsidiaries’ breaches, so
a claim of aiding and abetting fails. Arizona law leads to the same result. See Wells Fargo
Bank v. Arizona Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund,
38 P.3d 12, 23 (Ariz. 2002), as corrected (Apr. 9, 2002). Accordingly, the breach of
fiduciary duty claim against Osaic, Inc. is dismissed.
iii. Unjust Enrichment
Lastly, plaintiffs allege Osaic, Inc. was unjustly enriched because it received a
portion of the interest collected through the subsidiaries’ cash sweep programs. (Doc. 37
at 53.) Under New York law, an unjust-enrichment claim requires that (1) the defendant
benefited, (2) at the plaintiff’s expense, and (3) equity and good conscience require that
restitution be made. Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J.,
Inc., 448 F.3d 573, 586 (2d Cir. 2006). Connecticut law requires (1) a benefit to the
defendant, (2) for which the defendant unjustly did not pay, (3) to the detriment of the
plaintiff. Vertex, Inc. v. City of Waterbury, 898 A.2d 178, 190 (Conn. 2006). Though
possible Osaic, Inc. benefited from the profits earned by its subsidiaries, plaintiffs’
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allegations fail to demonstrate why equity and good conscience require restitution under
New York law. Nor do plaintiffs plausibly allege that Osaic, Inc. itself received a benefit
from plaintiffs for which it unjustly failed to pay, as required under Connecticut law, and
the same results follow under Arizona law. See Freeman v. Sorchych, 245 P.3d 927, 936
(Ariz. Ct. App. 2011). Accordingly, the unjust-enrichment claim against Osaic, Inc. fails.
B. Conclusion
Plaintiffs have not provided a plausible basis to conclude Osaic, Inc. is a proper
defendant for any of the claims alleged. The claims against Osaic, Inc. are therefore
dismissed.
IV. Claims Against APA, Osaic Institutions, and Osaic Wealth
Once again, plaintiffs do not identify the law governing each claim. Gehring’s
breach-of-contract claims against APA appear subject to a choice-of-law provision. (Doc.
27-16 at 6.) The parties otherwise assume New York law governs Gehring’s claims against
APA and Osaic Wealth and Connecticut law governs Norris and Hunt’s claims against
Osaic Institutions. Because the parties do not dispute these choices of law, the court
assumes they are correct. See In re Korean Air, 932 F.2d at 1495; see also Montana Power,
587 F.2d at 1022.
A. Breach of Contract
Gehring had an advisory account with APA and a non-advisory brokerage account
with Osaic Wealth. Hunt and Norris maintained non-advisory accounts with Osaic
Institutions. Plaintiffs allege the account agreements incorporated sweep disclosures
requiring periodic rate-setting and review, while defendants contend the disclosures are
non-contractual and they complied by paying the disclosed rates.
i. Statute of Limitations
The statute of limitations for breach of contract under New York and Connecticut
law is six years. N.Y. C.P.L.R. § 213(2); Conn. Gen. Stat. § 52-576(a). A claim accrues
when the breach occurs, even if the plaintiff is unaware of it at the time. ACE Sec. Corp. v.
DB Structured Prods., Inc., 36 N.E.3d 623, 628 (N.Y. 2015); Bouchard v. State Emps. Ret.
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Comm’n, 178 A.3d 1023, 1037 (Conn. 2018). However, under New York and Connecticut
law, when a contract requires continued performance over a period of time, each breach
gives rise to a new statute-of-limitations period. Guilbert v. Gardner, 480 F.3d 140, 150
(2d Cir. 2007); Bouchard, 178 A.3d at 1039 n.14.
The Osaic Broker-Advisors contend the claims accrued when plaintiffs opened their
accounts or entered the relevant agreements (Docs. 29 at 11–13; 30 at 12–15), but plaintiffs
allege the governing agreements required ongoing performance in the form of periodic
rate-setting and review, and that the Osaic Broker-Advisors underpaid interest with each
sweep cycle—breaches that are still “ongoing” (Docs. 17 at 5, 47–48; 37 at 19–20). Under
the continuing-performance doctrine recognized in New York and Connecticut, each
alleged underpayment may constitute a separate breach triggering a new limitations period.
Guilbert, 480 F.3d at 150; see also Bouchard, 178 A.3d at 1039 n.14. At the pleading stage,
plaintiffs plausibly allege actionable breaches within the limitations window, so dismissal
on timeliness grounds is not warranted.
ii. Merits
Under New York and Connecticut law, a claim for breach of contract lies where a
plaintiff alleges (1) the existence of a contract; (2) plaintiff’s performance under the
contract; (3) defendant’s breach of the contract; and (4) damages. See Berman v. Sugo LLC,
580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008); see also Prysmian Cables & Sys. USA LLC v.
ADT Com. LLC, 665 F. Supp. 3d 236, 244 (D. Conn. 2023).
Here, the parties agree valid contracts govern the accounts, but dispute whether
plaintiffs plausibly allege a breach. Plaintiffs point to various disclosures, program
descriptions, and account-opening materials that—according to them—collectively form
the governing agreements and contain rate-setting and review commitments, including
“reasonable” rate language and commitments to periodic review and adjustment. (Docs. 17
at 16–20; 37 at 13–16, 23–24.) The Osaic Broker-Advisors argue these materials are not
contractual and only the client agreements themselves are enforceable. (Doc. 39 at 10.)
Similar cash sweep cases have treated disclosure statements like the ones relied on here as
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part of the contractual relationship. See Mehlman v. Ameriprise Fin., Inc., No. CV 24-3018
(JRT/DLM), 2025 WL 2403252, at *2 (D. Minn. Aug. 19, 2025). Because the complaint
relies on the documents plaintiffs identify as part of the agreements and both sides rely on
the same materials without disputing their authenticity, the court considers them under the
incorporation-by-reference doctrine. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d
988, 998, 1002–03 (9th Cir. 2018).
Assuming these materials are part of the contracts, they plausibly impose
obligations extending beyond simply paying whatever rate defendants chose to disclose.
The documents describe rate-setting and periodic-review responsibilities, and commit to
managing cash sweeps in accord with the Osaic Broker-Advisors’ advisory duties. (Docs.
17 at 18, 26, 28; 27-10 at 6.) At this stage, the agreements do not clearly foreclose plaintiffs’
interpretation that the Broker-Advisors had a contractual duty to periodically reconsider or
adjust sweep rates in accordance with the criteria described in the governing documents.
Plaintiffs also plead facts supporting a plausible inference the Broker-Advisors did not
perform the promised rate-setting and review. While benchmark rates and market
conditions changed substantially, defendants’ sweep rates remained largely static, and
defendants retained the increased spread as revenue. (Docs. 37 at 17–18; 17 at 31–35.)
Those allegations plausibly support an inference that the Broker-Advisors failed to
undertake the rate-setting and review process in the manner plaintiffs allege the agreements
required. See Liberty Cap. Grp. v. Oppenheimer Holdings Inc., 802 F. Supp. 3d 701, 712–
14 (S.D.N.Y. 2025); see also In re Wells Fargo Cash Sweep Litig., No. 24-CV-04616-VC,
2025 WL 1785315, at *2 (N.D. Cal. June 27, 2025).
At this stage, the court need not definitively interpret the contracts or decide whether
the rates were “reasonable.” The question is whether plaintiffs plausibly allege that the
governing agreements imposed ongoing obligations regarding sweep-rate setting and that
defendants breached those obligations. Plaintiffs have done so. Accordingly, the breach-
of-contract claims survive to the extent they are based on alleged failures to adjust or
reconsider sweep rates in accordance with the governing agreements.
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B. Breach of Fiduciary Duty
Plaintiffs allege the Osaic Broker-Advisors owed them fiduciary duties and
breached those duties by setting sweep-account interest rates in a manner that placed the
Broker-Advisors’ financial interests over those of their customers.
i. Statute of Limitations
Under New York law, fiduciary-duty claims seeking monetary damages are subject
to a three-year limitations period. Liberty Cap., 802 F. Supp. 3d at 711 n.6. Such claims
generally accrue upon the alleged breach or, if the fiduciary relationship continues, when
the fiduciary openly repudiates its obligations. See Westchester Religious Inst. v.
Kamerman, 691 N.Y.S.2d 502, 503 (N.Y. App. Div. 1999). Connecticut law also imposes
a three-year limitations period. Conn. Gen. Stat. § 52-577; Flannery v. Singer Asset Fin.
Co., LLC, 17 A.3d 509, 513 (Conn. App. Ct. 2011), aff’d, 94 A.3d 553 (2014).
The Osaic Broker-Advisors argue any fiduciary-duty claims accrued when plaintiffs
first received any allegedly-inadequate sweep. (Doc. 39 at 14–15.) But plaintiffs allege an
ongoing fiduciary relationship period extending through the relevant period and repeated
failures by the Osaic Broker-Advisors to act in plaintiffs’ best interest with each cash sweep
and each determination of interest rates. (Doc. 17 at 11–13.) The complaint does not clearly
establish that any of the Osaic Broker-Advisors openly repudiated any fiduciary obligations
more than three years before this lawsuit was filed. As with the contract claims, plaintiffs
plausibly allege actionable breaches within the limitations period. See Miller v. Metro. Life
Ins. Co., 979 F.3d 118, 122 (2d Cir. 2020) (each breach of continuing duty may extend
statute of limitations); see also Tunick v. Tunick, 242 A.3d 1011, 1027–28 (Conn. App. Ct.
2020). The fiduciary-duty claims therefore are timely at least as to conduct within three
years of filing.
ii. Merits
Whether the Osaic Broker-Advisors owed plaintiffs a fiduciary duty depends on
whether the subject accounts were advisory or non-advisory. Investment advisors owe their
clients a duty to act in the client’s best interests and to avoid conflicts of interest. SEC v.
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Cap. Gains Rsch. Bureau, Inc., 375 U.S. 180, 194 (1963). Discretionary authority to trade
without prior client approval can support a fiduciary relationship even with a non-advisor.
See de Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293, 1302 (2d Cir. 2002); Press v.
Chem. Inv. Servs. Corp., 988 F. Supp. 375, 386 (S.D.N.Y. 1997), aff’d, 166 F.3d 529 (2d
Cir. 1999) (absent discretionary trading authority broker does not owe a general fiduciary
duty).
Plaintiffs allege APA had total discretionary control over the funds in Gehring’s
advisory account and breached its fiduciary duty by steering client funds into sweep
arrangements that maximized firm revenue at the expense of client returns. (Docs. 17 at
11–12; 37 at 35, 37.) Given the level of discretion, the allegations are sufficient to state a
fiduciary-duty claim for Gehring’s APA advisory account. See Liberty Cap., 802 F. Supp.
3d at 716; In re Wells Fargo, 2025 WL 1785315, at *3.2
By contrast, non-advisory services generally do not create fiduciary duties,
particularly in the absence of discretion to trade without approval. See Liberty Cap., 802
F. Supp. 3d at 716–17; In re Wells Fargo, 2025 WL 1785315, at *3; Wells Fargo Advisors,
LLC v. Bongiorno Fam., LLC, No. FSTCV126013831S, 2018 WL 1385252, at *9 (Conn.
Super. Ct. Feb. 16, 2018) (holding broker is not fiduciary if account is non-discretionary).
Gehring’s brokerage IRA with Osaic Wealth and Hunt and Norris’s IRAs with Osaic
Institutions were explicitly classified as non-advisory. (Doc. 17 at 6–7.)
Plaintiffs argue Osaic Wealth and Osaic Institutions exercised “discretionary
management” over the funds over because they selected sweep program terms, set default
enrollment, selected participating banks, and set sweep rates. (Doc. 37 at 34, 42, 44–45.)
But without more, those allegations do not plausibly plead the type of discretion giving rise
to a fiduciary relationship in a brokerage context, which requires discretionary authority to
make individualized investment decisions or execute transactions in the customer’s
account without the customer’s direction. See DeBlasio v. Merrill Lynch & Co., No.
2 The Osaic Broker-Advisors provide documents showing Gehring’s advisory account with
APA was closed on June 21, 2022 (Doc. 27-25 at 2), the day before APA was acquired by
Osaic, Inc. (Doc. 17 at 8). Gehring does not contest that the closure occurred or provide
factual allegations suggesting he had an advisory account with any other defendants.
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07CIV318RJS, 2009 WL 2242605, at *29 (S.D.N.Y. July 27, 2009); de Kwiatkowski, 306
F.3d at 1302–03; Liberty Cap., 802 F. Supp. 3d at 716–17; Bongiorno Fam., 2018 WL
1385252, at *9.
Accordingly, only Gehring’s advisory account through APA gives rise to a fiduciary
duty. The fiduciary-duty claims are dismissed as to all non-advisory accounts.
C. Unjust Enrichment
Plaintiffs allege the Osaic Broker-Advisors were unjustly enriched by retaining the
spread between interest earned from program banks and the rates paid to customers. The
Broker-Advisors argue these claims are barred because written account agreements govern
the very subject matter of the dispute, so any remedy must therefore arise under contract
law and not equity.
i. Statute of Limitations
Under New York law, unjust-enrichment claims carry a six-year limitations period.
N.Y. C.P.L.R. § 213(1). Connecticut’s period is either three years, Conn. Gen. Stat.
§ 52-577, or six years depending on the factual basis for the claim. See Bennett v. Fiorillo,
No. CV166065144S, 2017 WL 3175937, at *2 (Conn. Super. Ct. June 16, 2017) (applying
six-year statute-of-limitations period to unjust-enrichment claim stemming from
contractual agreement).
Here, plaintiffs allege repeated instances in which the Osaic Broker-Advisors may
have unjustly retained sweep revenue or otherwise benefited from setting interest rates at
levels far below what plaintiffs contend was reasonable. (Doc. 17 at 48–49.) Plaintiffs do
not rely on a single, initial decision from years earlier. Instead, they allege discrete acts of
unjust enrichment occurring with each cash-sweep cycle and each month in which the
Broker-Advisors retained allegedly-excessive sweep revenue. (Doc. 37 at 20.) Accepting
these allegations as true, the complaint pleads multiple events occurring within the
applicable limitations periods. Accordingly, the unjust-enrichment claims are timely to the
extent they are based on enrichment occurring within the applicable limitations periods.
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ii. Merits
When a valid and enforceable contract between the parties covers the dispute at
issue, a plaintiff cannot maintain an unjust-enrichment claim. Trustpilot Damages LLC v.
Trustpilot, Inc., No. 21 Civ. 432, 2021 WL 2667029, at *9–10 (S.D.N.Y. June 29, 2021);
Meaney v. Connecticut Hosp. Ass’n, Inc., 735 A.2d 813, 823 (Conn. 1999). Unjust
enrichment may be pleaded in the alternative only where there is genuine doubt as to the
existence or scope of a contract. Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 263
(2d Cir. 1999); Standard Petroleum Co. v. Faugno Acquisition, LLC, 191 A.3d 147, 161
(Conn. 2018).
Here, the parties do not dispute that valid contracts governed the advisory and non-
advisory accounts. But the parties do dispute the scope of the contracts, particularly
whether the contracts required the Broker-Advisors to periodically review and set
“reasonable” sweep payment rates. Therefore, because the scope of the contract is at issue,
unjust enrichment may be pleaded in the alternative.
But plaintiffs fail to allege facts to support unjust-enrichment claims. Specifically,
they fail to show why equity and good conscience require restitution be made, see Beth
Israel, 448 F.3d at 586, or why the Broker-Advisors unjustly did not pay to the detriment
of plaintiffs. See Vertex, Inc., 898 A.2d at 190. Plaintiffs make several short and conclusory
allegations to support their unjust-enrichment theory (Docs. 17 at 48–49; 37 at 49), but
these allegations are insufficient under New York and Connecticut law. See DeBlasio, 2009
WL 2242605, at *40; see also Caires v. JP Morgan Chase Bank, N.A., 880 F. Supp. 2d
288, 310–11 (D. Conn. 2012). Accordingly, the unjust-enrichment claims are dismissed.
D. Investment Advisers Act
Plaintiffs argue the Osaic Broker-Advisors violated the IAA and seek rescission of
their account agreements and restitution for consideration given pursuant to the terms of
those agreements, citing 15 U.S.C. § 80b-6 and § 80b-15.3 (Docs. 17 at 49; 37 at 45–46,
48.)
3 The parties regularly refer to §§ 206 and 215 of the IAA. These sections are codified at
15 U.S.C. § 80b-6 and 15 U.S.C. § 80b-15, respectively.
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The IAA itself does not designate a statute of limitations. Claims under § 80b-15
are likely limited by the earlier of actual knowledge of the violation (one-year limitation)
or notice of facts that would lead to knowledge with reasonable diligence (three-year
limitation). See Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030, 1042 (2d Cir.
1992). An § 80b-15 claim accrues upon execution of the agreement. See id. Here, plaintiffs’
agreements were executed at least nine years ago. Plaintiffs do not identify any new or
independent § 80b-15 violations (such as a newly-added contractual term) within three
years of filing. Therefore, the § 80b-15 rescission claims are untimely.
Although plaintiffs also make arguments under § 80b-6, the IAA confers no private
causes of action other than voiding an investment advisor’s contract under § 80b-15.
Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 11–12 (1979);
NexPoint Diversified Real Est. Tr. v. Acis Cap. Mgmt., L.P., 80 F.4th 413, 418 (2d Cir.
2023); see also In re LPL Fin. Cash Sweep Litig., 789 F. Supp. 3d 961, 988 (S.D. Cal.
2025) (dismissing similar IAA claims in a cash sweep action). Because the alleged
violations under § 80b-15 are untimely and no other private causes of action exist under
the IAA, all IAA claims are dismissed.
V. Leave to Amend
A court should freely grant leave to amend unless the pleading could not possibly
be cured by alleging other facts. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000);
Fed. R. Civ. P. 15(a)(2). Here, the allegation of other facts could possibly cure the claims
against Osaic, Inc. and the fiduciary-duty claims against Osaic Wealth and Osaic
Institutions and the unjust-enrichment claims. These claims are therefore dismissed with
leave to amend. Out of an abundance of caution, the IAA claims are also dismissed with
leave to amend on the chance plaintiffs can identify new contractual terms affecting the
sweep program structure that were added within the limitations period.
VI. Case Management Report
Plaintiffs have stated plausible claims for relief such that the parties must confer and
prepare a Rule 26(f) Joint Case Management Report. Discovery will commence on those
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claims not dismissed by this order, even if plaintiffs choose to file an amended complaint.
Accordingly,
IT IS ORDERED the Motion to Dismiss (Doc. 28) is GRANTED.
IT IS FURTHER ORDERED the Motions to Dismiss (Docs. 29, 30) are
GRANTED IN PART and DENIED IN PART as set forth above.
IT IS FURTHER ORDERED if plaintiffs wish to file an amended complaint they
must file their amended complaint no later than February 16, 2026. If no amended
complaint is filed, defendants shall answer the current complaint no later than February
20, 2026. If an amended complaint is filed, defendants shall respond by the deadline
established by Rule 12.
IT IS FURTHER ORDERED as follows:
The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case
Management Report, which must be filed within 4 weeks of the date of this order. It is
the responsibility of plaintiff(s) to initiate the Rule 26(f) meeting and prepare the Joint Case
Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule
26(f) meeting and assist in preparation of the Joint Case Management Report.
The Joint Case Management Report shall contain the following information in
separately-numbered paragraphs.
1. The parties who attended the Rule 26(f) meeting and assisted in developing
the Joint Case Management Report;
2. A list of all parties in the case, including any parent corporations or entities
(for recusal purposes);
3. Any parties that have not been served and an explanation of why they have
not been served, and any parties that have been served but have not answered
or otherwise appeared;
4. A statement of whether any party expects to add additional parties to the case
or otherwise amend pleadings;
5. The names of any parties not subject to the court’s personal (or in rem)
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jurisdiction;
6. A description of the basis for the court’s subject matter jurisdiction, citing
specific jurisdictional statutes. If jurisdiction is based on diversity of
citizenship, the report shall include a statement of the citizenship of every
party and a description of the amount in dispute. See 28 U.S.C. § 1332;
7. A short statement of the nature of the case (no more than three pages),
including a description of each claim, defense, and affirmative defense;
8. A listing of contemplated motions and a statement of the issues to be decided
by those motions;
9. Whether the case is suitable for reassignment to a United States Magistrate
Judge for all purposes or suitable for referral to a United States Magistrate
Judge for a settlement conference;
10. The status of any related cases pending before this or other courts;
11. A discussion of any issues relating to preservation, disclosure, or discovery
of electronically stored information (“ESI”), including the parties’
preservation of ESI and the form or forms in which it will be produced;
12. A discussion of any issues relating to claims of privilege or work product;
13. A discussion of necessary discovery, which should take into account the
December 1, 2015 amendments to Rule 26(b)(1) and should include:
a. The extent, nature, and location of discovery anticipated by the parties
and why it is proportional to the needs of the case;
b. Suggested changes, if any, to the discovery limitations imposed by the
Federal Rules of Civil Procedure;
c. The number of hours permitted for each deposition. The parties also
should consider whether a total number of deposition hours should be
set in the case, such as twenty total hours for plaintiffs and twenty
total hours for defendants. Such overall time limits have the advantage
of providing an incentive for each side to be as efficient as possible in
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each deposition, while also allowing parties to allocate time among
witnesses depending on the importance and complexity of subjects to
be covered with the witnesses;
14. Proposed deadlines for each of the following events. In proposing deadlines,
the parties should keep in mind the Case Management Order will contain
deadlines to govern this case and once the dates have been set the court will
vary them only upon a showing of good cause. A request by counsel for
extension of discovery deadlines in any case that has been pending more than
two years must be accompanied by a certification stating the client is aware
of and approves of the requested extension. The court does not consider
settlement talks or the scheduling of mediations to constitute good cause for
an extension. The parties must propose the following:
a. A deadline for the completion of fact discovery, which will also be
the deadline for pretrial disclosures pursuant to Rule 26(a)(3). This
deadline is the date by which all fact discovery must be completed.
Discovery requests must be served and depositions noticed
sufficiently in advance of this date to ensure reasonable completion
by the deadline, including time to resolve discovery disputes. Absent
extraordinary circumstances, the court will not entertain discovery
disputes after this deadline;
b. Dates for full and complete expert disclosures and rebuttal expert
disclosures, if any;
c. A deadline for completion of all expert depositions;
d. A date by which any Rule 35 physical or mental examination will be
noticed if such an examination is required by any issues in the case;
e. A deadline for filing dispositive motions;
f. Case-specific deadlines and dates, such as the deadline to file a motion
for class certification or a date on which the parties are available for a
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Markman (patent claim construction) hearing;
g. A date by which the parties shall have engaged in face-to-face good
faith settlement talks;
h. Whether a jury trial has been requested and whether the request for a
jury trial is contested, setting forth the reasons if the request is
contested;
i. Any other matters that will aid the court and parties in resolving this
case in a just, speedy, and inexpensive manner as required by Federal
Rule of Civil Procedure 1;
15. A statement indicating whether the parties would prefer that the court hold a
case management conference before issuing a scheduling order—and, if so,
an explanation of why the conference would be helpful.
IT IS FURTHER ORDERED the parties shall file a proposed Case Management
Order containing all the proposed dates at the same time they file the Rule 26(f) Case
Management Report. The proposed Case Management Order must also be emailed in Word
format to Lanham_Chambers@azd.uscourts.gov.
Dated this 30th day of January, 2026.
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