Opinion
Case No. 05-81016-CIV.
May 10, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIS CAUSE comes before the Court pursuant to Defendant Wachovia Corporation's ("Wachovia") Motion to Dismiss, filed January 25, 2006 [DE 9]. Plaintiff Phyllis Spencer ("Spencer") responded on February 27, 2006 [DE 16]. Wachovia replied on March 16, 2006 [DE 26]. The Court heard oral argument on this Motion on March 29, 2006. This motion is ripe for adjudication.
I. BACKGROUND
Spencer, individually and on behalf of all others similarly situated, brings this action against Wachovia alleging that Wachovia, by investing irrevocable trust assets in Evergreen Investment Funds ("Evergreen Funds") without disclosing that such funds were affiliated with Wachovia, and by charging undisclosed advisory and management fees against the trust assets in relation to these funds, engaged in self-dealing in breach of its duty of loyalty to trust beneficiaries.
Wachovia manages in excess of $300 billion in trust assets, including monies contained in irrevocable trusts for which Wachovia acts as trustee. (Compl. ¶ 1.) Spencer is a beneficiary of an irrevocable trust managed and controlled by Wachovia. (Compl. ¶ 2.) Evergreen Investment is a wholly owned subsidiary of Wachovia Bank, N.A., which is wholly owned by Wachovia of Alabama, Inc., which is wholly owned by Defendant Wachovia. Evergreen Investment manages all fiduciary assets invested in the Evergreen Fund family. (Compl. ¶ 35.)
Spencer alleges that Wachovia devised a scheme to maximize its profits by forcing the irrevocable trusts to invest in the Evergreen Funds whether or not such investments were in the best interests of the trusts or their beneficiaries. (Compl. ¶ 37.) Spencer also claims that Wachovia profited by charging beneficiaries fees at both the mutual fund and trust level for managing the same assets. (Compl. ¶ 44.) The only disclosure of these "other expenses" is found in Wachovia's prospectuses, which the beneficiaries did not receive. (Compl. ¶ 45.)
Spencer brings a six-count Complaint against Wachovia. Counts I and II allege that Wachovia breached its fiduciary duty toward the beneficiaries by placing trust assets into the Evergreen Funds and by charging against the trust assets for the "other expenses." Counts III through VI, causes of action for unjust enrichment and money had and received, allege that Wachovia has improperly retained monies resulting from the placement of the assets into the Evergreen Funds and charging the "other expenses." Spencer seeks class certification, asserting that those similarly situated are "so numerous and geographically diverse that joinder of all of them is impracticable." (Compl. ¶ 10.) Spencer also seeks compensatory damages, pre and post judgment interest, attorneys' fees and costs and any other relief, including injunctive relief, that the Court deems just and proper. Wachovia has moved to dismiss the Complaint with prejudice on grounds of federal preemption and failure to state a claim.
II. LEGAL STANDARD ON MOTIONS TO DISMISS
Rule 8(a) of the Federal Rules of Civil Procedure requires a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests." When examining a motion to dismiss, this Court considers whether the plaintiff has alleged facts sufficient to state a claim for relief. A motion to dismiss should not be granted unless the plaintiff can prove no set of facts in support of its claim entitling it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "When considering a motion to dismiss, all facts set forth in the plaintiffs complaint `are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)).III. DISCUSSION
1995's Private Securities Litigation Reform Act ("PSLRA") was intended to curb abuses of federal securities laws, particularly the bringing of "strike suits." See Riley v. Merrill Lynch, Pierce, Fenner Smith, Inc., 292 F.3d 1334, 1340-41 (11th Cir. 2002). The PSLRA established heightened pleading requirements for class action securities fraud actions. See 15 U.S.C. § 78u-4. By 1998, however, Congress realized that plaintiffs were frustrating the goals of the PSLRA by bringing securities class actions in state court under state statutory or common law theories. See Riley, 292 F.3d at 1341. Congress enacted the Securities Litigation Uniform Standards Act ("SLUSA") "to prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives of the [PSLRA]." SLUSA, Pub.L. No. 105-353, 2, 112 Stat. 3227, 3227. SLUSA provides for the removal of state class actions alleging fraud in the sale of "covered securities" to federal court and requires immediate dismissal of such "covered lawsuits." Id. Pursuant to 15 U.S.C. § 77p(c):
Any covered class action brought in any State court involving a covered security, as set forth in subsection (b), shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b).15 U.S.C. § 77p(b), in turn, provides as follows:
No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging —
(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or
(2) that the defendant used or employed any manipulative or deceptive device in connection with the purchase or sale of a covered security.
If SLUSA applies, a complaint "must be dealt with in federal court by way of dismissal if only state law claims have been raised." Spielman v. Merrill Lynch, Pierce, Fenner Smith, Inc., 332 F.3d 116, 123 n. 5 (2d Cir. 2003). SLUSA requires dismissal of actions that are: (1) "covered class action[s]," (2) based on state law, (3) concern a "covered security," (4) involve either a "misrepresentation or omission of a material fact," or "any manipulative device or contrivance," and are (5) "in connection with the purchase or sale of a covered security." 15 U.S.C. § 77p(b). Artful pleading is insufficient to overcome the application of SLUSA: when the "gravamen" or "essence" of the Complaint involves an untrue statement or substantive omission of a material fact, and when that conduct coincides with a transaction involving a covered security, SLUSA mandates dismissal. See Dudek v. Prudential Sec., Inc., 295 F.3d 857, 879 (8th Cir. 2002) (affirming district court's dismissal of class action because "gravamen" of action involved untrue statements or omissions in connection with the purchase or sale of covered securities).
Spencer does not contest that the Complaint constitutes a "covered class action" and alleges state law claims. (Response, p. 5.) Thus, Spencer's claims are preempted only if they concern a "covered security" and involve misrepresentations and/or omissions "in connection with" said securities.
Wachovia does not concede that the predominance requirement for class certification can be satisfied here, or any other requirement for class certification under Fed.R.Civ.P. 23.
The Evergreen Funds, a family of mutual funds, are "covered securities" because they are issued by an investment company registered under the Investment Company Act of 1940. See 15 U.S.C. § 77r(b) (2). See also Herndon v. Equitable Life Ins. Co., 352 F.3d 1252, 1254-55 (11th Cir. 2003) (citing Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 999-1000 (C.D. Cal. 2002) (money market mutual funds covered securities under SLUSA)). Spencer does not contest that the securities themselves are covered under SLUSA; her argument THAT THE COMPLAINT DOES NOT CONCERN A COVERED SECURITY IS SIMPLY A RESTATEMENT OF HER ARGUMENT, addressed below, that SLUSA does not apply because her claim is for breach of fiduciary duty.
Central to Spencer's argument in opposition to the motion to dismiss is that her claim is for breach of fiduciary duty and is not predicated on misrepresentations or omissions. Spencer alleges that Wachovia failed to satisfy its fiduciary duties as a trustee by investing the trust monies in Evergreen Funds and collecting the "other expenses." Wachovia agrees that claims for breach of fiduciary duty are a "hallmark of state law" and that such a breach does not constitute a violation of federal securities laws. See Santa Fe Indus. v. Green, 430 U.S. 462, 478, 97 S.Ct. 1292, 1303 (1977). Yet plaintiffs cannot take facts relating to fraud in the connection with the purchase and sale of securities and cast them as claims for breach of fiduciary duty in an attempt to avoid SLUSA preemption.
In Behlen v. Merrill Lynch, 311 F.3d 1087, 1089-90 (11th Cir. 2002), a purchaser of shares in a mutual fund brought suit against his brokerage firm alleging various state law claims, including breach of fiduciary duty, unjust enrichment, and money had and received. The purchaser alleged that the broker misrepresented the fact that the putative class would be sold Class A shares in the fund, when in fact they were sold the more expensive Class B shares. See id. at 1089. Affirming the district court's dismissal under SLUSA, the Eleventh Circuit held that the "crux" of the complaint was that the defendants made misrepresentations or omissions regarding "crucial facts," causing the class to invest in "inappropriate" securities. Id. at 1094. The Eleventh Circuit also affirmed the district court's refusal to remand the action to state court after the purchaser amended his complaint to omit all claims and allegations of misrepresentation. See id. at 1095. Also, in Rowinski v. Salomon Smith Barney, Inc., 398 F.3d 294, 299-300 (3d Cir. 2005), the Third Circuit affirmed the district court's finding that the investor's state law claims against a brokerage firm were preempted by SLUSA because allegations of misrepresentation were central to each claim. The complaint brought counts for breach of contract, violation of a state consumer protection law, unjust enrichment and was "replete with allegations" that defendant was issuing misleading investment research by artificially inflating stock ratings to curry favor with defendant's existing and potential banking clients. See id. Because those allegations were incorporated by reference in every count of the complaint, the court affirmed the district court's conclusion that the misrepresentation requirement of SLUSA was "readily satisf[ied]." Id. at 300. The court rejected plaintiff's argument that because "misrepresentation" is not an element of the claims under state law, the factual allegations of misrepresentation are irrelevant to the SLUSA inquiry. The court reasoned that "allow[ing] artful pleading to undermine SLUSA's goal of uniformity [is] a result manifestly contrary to congressional intent." Id.
Spencer distinguishes Behlen and Rowinski on the basis that each dealt with misrepresentations about the securities themselves. Yet Spencer's attempt to so distinguish these cases flies in the face of the allegations of her Complaint, which are replete with claims of misrepresentation. Each of Spencer's claims hinge on her belief that she and the putative class were wronged when Wachovia invested in Evergreen Funds and charged the "other expenses" without disclosing same to beneficiaries. The Complaint is rife with examples of such allegations:
• Wachovia failed to fully and adequately disclose to trust beneficiaries so-called "other expenses" that are charged against trust assets. These "other expenses" have never been adequately disclosed to trust beneficiaries. . . . (Compl. ¶ 3.)
• Wachovia ordered its trust officers to attempt to conceal the forced investments in Evergreen Funds from trust beneficiaries, implementing a "do not tell" policy. Id.
• Contrary to [Wachovia's] marketing blitz, the reality is that Wachovia's purported trust and fiduciary services are nothing more than an automated and robotic feeder system for Evergreen Funds. (Compl. ¶ 5.)
• Wachovia's Wealth Management Division required fiduciary account assets to be invested in Evergreen Funds and, to the greatest extent possible, kept this "investment strategy" a secret from the beneficiaries. (Compl. 135.)
• Wachovia also covered-up its self-dealing . . . as part of its road show. Specifically, Wachovia taught trust officers how to avoid answering questions posed by trust beneficiaries regarding the "Evergreen Fund" program . . . [and] cautioned its trust officers that disclosing its Evergreen Fund requirement could create an "unintended bad impression." (Compl. ¶ 41.)
• Although Wachovia purports to refund investment management/advisory fees, it is a farce, as Wachovia secretly charges . . . fees in the form of "other expenses." (Compl. ¶ 44.)
• "Other expense" fees charged . . . are in reality the purportedly "rebated" investment management/advisory fees in disguise. (Compl. ¶ 46.)
(Emphasis added.) Significantly, one of the alleged common questions of law and fact upon which Spencer relies centers on lack of disclosure: "Whether Wachovia breached its fiduciary duties by failing to fully and adequately disclose what the so-called `other expenses' were and that they were being charged against trust assets." (Compl. ¶ 12(b)). Although Spencer claims that her Complaint is based on state law, the premise of each of her claims is that Wachovia's nondisclosures about certain aspects of the funds caused her alleged injuries. The gravamen of Spencer's complaint is that Wachovia made misrepresentations about two significant characteristics of the securities in question and that it purchased those securities with her trust assets, thereby triggering her injury.
The caselaw Spencer cites in opposition to the motion to dismiss is likewise unhelpful to her. In Norman v. Salomom Smith Barney. Inc., 350 F.Supp.2d 382 (S.D.N.Y. 2004), plaintiff-investors alleged that Salomon breached its fiduciary duty in the management of their Guided Portfolio Management ("GPM") accounts. Salomon advertised that GPM investors received individual portfolio management according to the experience and "breadth and depth" of its research department. See id. at 384. GPM investors paid annual fees based on the market value of their accounts in exchange for this service. See id. Plaintiffs alleged that Salomon privately believed the service was "worthless" and "ridiculous" and doubted the "objectivity" and "integrity" of its research analysts. Id. Plaintiffs alleged that Salomon breached its fiduciary duty by managing their accounts based on these conflicted and unreliable recommendations, placing its own profits above those of its investors. See id. Norman held that SLUSA preemption did not apply, reasoning that the action was a straightforward breach claim for failure to provide the advertised investment services and failure to satisfy fiduciary duties. See id. at 387.Norman is distinguishable because the investors' claims did not rest on misstatements or omissions; indeed, the investors did not claim that they ever read Salomon's analysts' reports. See id. Here, Spencer alleges that Wachovia made misrepresentations about the funds themselves that coincided with its investing trust assets in said funds. Breakaway Solutions, Inc. v. Morgan Stanley Co. Inc., No. Civ.A 19522, 2004 WL 1949300 (Del.Ch.Ct. Aug. 27, 2004) was also a straightforward claim for breach of a service contract. Plaintiff, an issuer of stock, alleged that defendant, an underwriter, mismanaged a contract to provide underwriting services relating to an initial public offering. See id. at *2. The Court rejected a SLUSA preemption argument, also reasoning that the case centered around the failure of a service provider to provide promised services.See id. at *6. The case involved no allegations of fraud in connection with the purchase or sale of any stock subsequent to the issuance of said stock. Id. Gray v. Seaboard Securities, Inc., 241 F.Supp.2d 213 (N.D.N.Y. 2003), on which Spencer relies for the proposition that claims for breach of contract and fraud in the inducement on behalf of a class of plaintiff investors who claimed they paid inflated commission fees for services not provided are not subject to SLUSA preemption, was reversed inGray v. Seaboard Securities, Inc., 126 Fed. Appx. 14, 16-17 (2d Cir. 2005). The Second Circuit held that because the complaint specifically alleged that the misrepresentations about the brokerage advice "were intended to and did cause plaintiffs and the putative class members to pay premium brokerage commissions," and because those commissions accrued in connection with the purchase and sale of securities, the claims were preempted by SLUSA. Id. at 16. The claims related to brokerage commissions are virtually identical to Spencer's claims relating to the "other expenses" and are therefore preempted by SLUSA.
Spencer's claims are also "in connection with" securities transactions. SLUSA does not define the language "in connection with the purchase or sale of a security." The Supreme Court has construed the same language as it appears in § 10(b) and Rule 10b-5. See Riley 292 F.3d at 1342. Because SLUSA was specifically enacted as an amendment to the 1933 and 1934 Acts, the Eleventh Circuit has followed the lead of several circuit courts in presuming that Congress intended the phrase to have the same meaning in SLUSA. See id. at 1343. The Supreme Court construed this language inZandford, which involved a complaint against a stock broker for violating § 10(b) and Rule 10b-5 with regard to investments for a discretionary account. 535 U.S. at 815. Because the broker was authorized to invest in securities for the account without prior investor approval, the broker argued that the alleged fraudulent conduct was not "in connection with the purchase or sale of any security" because it did not induce the investor to purchase or sell any particular security. See id. The district court denied the broker's motion to dismiss, but the Fourth Circuit reversed, holding that the sale of the securities was "merely incidental" to the fraud. Id. at 816-17. The Supreme Court reversed the Fourth Circuit, ruling that the broker's fraud, which involved selling securities from the customer's account and converting the cash for personal use, "coincided" with securities transactions. Id. at 820. Each transaction furthered the broker's scheme: "each was deceptive because it was neither authorized by, nor disclosed to, the [customer]." Id. at 820-21. Significantly, the broker's misrepresentation was not in relation to the value of any particular security. See id. at 820. The complaint "describe[d] a fraudulent scheme in which the securities transactions and breaches of fiduciary duty coincide[d]," thereby bringing the broker's actions within the ambit of § 10(b). Id. at 825. The Court instructed that this element be construed "not technically and restrictively, but flexibly to effectuate its remedial purpose," which is "to achieve a high standard of business ethics in the securities industry." Id. at 819. See also Grippo V. Perazzo, 357 F.3d 1218, 1223-24 (11th Cir. 2004) (irrelevant that defendant-broker running a Ponzi scheme never actually purchased the securities; the transactions were "in connection with" under Zandford because defendant "accepted and deposited [plaintiff's monies as payment for securities");Loftin v. KPMG LLP, misrepresentation need not relate to the value of the security to satisfy the "in connection with" requirement as construed in Zandford.
The Supreme Court held as recently as this spring that SLUSA's "in connection with" language should be construed to include purchasers as well as holders of covered securities. In Merrill Lynch, Pierce, Fenner Smith, Inc. v. Dabit, 547 U.S. ___, ___, 126 S.Ct. 1503, 1507 (2006), a former Merrill Lynch broker filed a class action on behalf of himself and all other former and current Merrill Lynch brokers who, while employed by Merrill Lynch, purchased certain stocks for themselves and their clients. The lead plaintiff brought state law claims against Merrill Lynch for breach of fiduciary duty and breach of the covenant of good faith and fair dealing for propounding overly optimistic research that manipulated stock prices, thereby causing brokers and clients to hold their stocks longer than they would have otherwise. See id. The Supreme Court held that SLUSA preempted the claims of the broker-owners and the client-owners even though the client-owners were not the purchasers of the securities: "it is enough that the fraud alleged `coincide' with a securities transaction — whether by the plaintiff or by someone else." Id. at 1513 (citing United States v. O'Hagan, 521 U.S. 642, 651 (1997)).
Spencer essentially alleges that Wachovia schemed to mislead trust beneficiaries about the funds in which Wachovia intended to invest the trust assets, as well as the fees and expenses associated with those transactions. The Complaint alleges that this scheme was premised on, and furthered by, the purchase of Evergreen Funds. Spencer is not merely a passive holder of the securities; she ties her alleged injury directly to what she sees as the "forced purchase" of the Evergreen Funds with trust assets. (Compl. ¶ 3, 4, 9, 12.) Thus, the alleged breach of fiduciary duty, as well as the claims for unjust enrichment and money had and received, coincide with the scheme to invest trust assets in Evergreen Funds and collect fees related to those investments. Spencer claims entitlement to any investment losses resulting from investment of trust assets in Evergreen Funds, as well as reimbursement of the "other expenses." These damages also "connect" the allegations of misrepresentations about Evergreen Funds and the fees associated with those funds, to transactions in securities. See Behlen, 311 F.3d at 1094 (allegations of "excess fees and commissions" incurred in association with securities transactions a relevant factor in determining whether claims "connected" to securities transactions).
The Court does not address Wachovia's argument that it has satisfied state and federal securities law disclosure requirements, as this argument constitutes an affirmative defense improper for resolution on a motion to dismiss.
Even if Spencer had stated a claim for breach of fiduciary duty, she has not alleged that she suffered any compensable damages. A trustee who commits a breach of trust is chargeable with:
(a) any loss o[r] depreciation in value of the trust estate resulting from the breach of trust; or
(b) any profit made by him through the breach of trust; or
(c) any profit which would have accrued to the trust estate if there had been no breach of trust.Flagship Bank of Orlando v. Reinman, Harrell, Silberhorn, Moule Graham, P.A., 503 So.2d 913, 916 (Fla. 5th DCA 1987) (quoting Restatement (Second) of Trusts § 205 (1959)). Spencer does not allege that there was any loss or depreciation of trust value resulting from Wachovia's investment decisions. Rather, a close reading of the Complaint indicates that the placing of the assets in the Evergreen Funds may actually have garnered funds for the trust. Paragraph 53 of the Complaint alleges the following as to "damages:"
Wachovia's breaches of its fiduciary obligations cannot be remedied by the ultimate performance of the Evergreen Funds, because Wachovia's breaches of those fiduciary obligations occurred when Wachovia acted imprudently to force the irrevocable trusts to invest in Evergreen Funds. In other words, Wachovia cannot avoid its liability for its breach of its fiduciary duties by claiming that the eventual results of the investment of irrevocable trust assets in Evergreen Funds was beneficial.
This paragraph not only fails to allege that Spencer has lost any money as a result of the investment, but also leaves open the possibility that Wachovia's management of the trust funds may have caused them to grow. That the trust may have performed better had it been invested elsewhere is speculative and therefore not a proper basis for a damages claim. See McQueen v. Jersani, 909 So.2d 491, 495 (Fla. 5th DCA 2005) ("[D]amages cannot be based on mere guesswork or speculation but must have an evidentiary basis.") (citing Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989)). As to the "other expenses," Spencer does not allege that Wachovia actually profited from administering the trust. Nor has Spencer alleged that any profit would have accrued to the trust but for the alleged breach of duty. Whereas Spencer has failed to plead any entitlement to damages proximately caused by the breach, her claims must be dismissed pursuant to Rule 12(b)(6). See Bankers Trust Realty. Inc. v. Kluger, 672 So.2d 897, 898-99 (Fla. 3d DCA 1996) ("[A]lthough the defendant compiled a list of alleged breaches, there are no allegations as to what injury the defendant sustained as a result of those alleged breaches, nor how the injury is causally related to the alleged breaches."); Himes v. Brown Co. Securities Corp., 518 So.2d 937 (Fla. 3d DCA 1987) (investor's petition against securities firm for, inter alia, breach of fiduciary duty, which failed to demonstrate any actual proximate damage suffered as result of the alleged false advertising, failed to state cause of action.).
Spencer's claims for unjust enrichment and money had and received are also subject to dismissal. Spencer alleges that by paying Wachovia fees and "other expenses" for services Wachovia never provided, she conferred a benefit upon Wachovia that unjustly enriched Wachovia at her expense. In Florida, causes of action for money had and received and unjust enrichment are virtually interchangeable. Unjust enrichment is the modern version of the common law action for money had and received.See Hall v. Humana Hosp. Daytona Beach, 686 So. 2d 653, 656 (Fla. 5th DCA 1996); Moore Handley, Inc. v. Major Realty Corp., 340 So. 2d 1238, 1239 (Fla. 4th DCA 1976).
An action for money had and received "is founded upon the equitable principle that no one ought to be unjustly enriched at the expense of another." Sharp v. Bowling, 511 So. 2d 363, 365 (Fla. 5th DCA 1987). A claim for unjust enrichment requires a showing that: "(1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So. 2d 1222, 1227 (Fla. 1st DCA 2005) (internal quotation marks omitted). "To properly plead a claim for unjust enrichment, a party must allege that no adequate legal remedy exists." American Honda Motor Co. v. Motorcycle Information Network, Inc., 390 F.Supp.2d 1170, 1178 (M.D. Fla. 2005); Martinez v. Weyerhauser Mort. Co., 959 F.Supp. 1511, 1518 (S.D. Fla. 1996). Spencer seeks monetary damages and fails to allege that an adequate legal remedy was available to her. Therefore, Wachovia has not been unjustly enriched at Spencer's expense. Accordingly, Counts III-VI are dismissed pursuant to Rule 12(b)(6).
The Court declines to address Wachovia's argument that its alleged actions with regard to the trust were permitted under the trust instrument and Florida law, as these are affirmative defenses improper for resolution of aq motion to dismiss.
Although SLUSA preemption prevents Spencer from bringing these claims as a class, it does not foreclose her from bringing individual state law claims. See Dabit, 547 U.S. at ___, 126 S.Ct. at 1514 (recognizing that SLUSA prevents plaintiffs from bringing designated claims as class actions but "does not deny any individual plaintiff, or indeed an group of fewer than 50 plaintiffs, the right to enforce any state law cause of action that may exist."). Spencer brings her claims on her own behalf and on behalf of the class of alleged similarly situated persons. Spencer's class-wide claims are dismissed with prejudice. Spencer's claims, insofar as she has alleged them as an individual, are dismissed without prejudice with leave provided to amend.
IV. CONCLUSION
THE COURT, being fully advised and having considered the pertinent portions of the record, hereby
ORDERS AND ADJUDGES that Wachovia's Motion to Dismiss, filed January 25, 2006 [DE 9] is GRANTED. Spencer's class-wide claims are DISMISSED WITH PREJUDICE. Spencer's individual claims are DISMISSED WITHOUT PREJUDICE with leave provided to amend. Spencer shall file an Amended Complaint within fifteen (15) days of the date of this Order.
DONE AND ORDERED.