Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`March 28, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`ELLA CLINTON; WILLIAM
`CARRICK; TERRI L. STAUFFER-
`SCHMIDT; JEAN P. WRIGHT;
`MICHAEL A. WEBBER; DONALD P.
`COX; HOWARD ROSEN; WAI HEE
`YUEN; MARTHA MILLER COX,
`
` Plaintiffs - Appellants,
`
`v.
`
`SECURITY BENEFIT LIFE
`INSURANCE COMPANY,
`
` Defendant - Appellee.
`_________________________________
`
`
`
`
`
`
`
`
`
`
`No. 21-3035
`
`Appeal from the United States District Court
`for the District of Kansas
`(D.C. No. 5:20-CV-04038-HLT-KGG)
`_________________________________
`
`Andrew S. Friedman of Bonnett Fairbourn Friedman & Balint PC (Francis J.
`Balint, Jr. of Bonnett Fairbourn Friedman & Balint PC, Phoenix, Arizona;
`Adam M. Moskowitz and Howard H. Bushman of The Moskowitz Law Firm,
`PLLC, Coral Gables, Florida; and Eric D. Barton of Wagstaff & Cartmell, LLP,
`Kansas City, Missouri, with him on the briefs), for Plaintiffs-Appellants.
`
`Robert D. Phillips, Jr. of Alston & Bird LLP (Samuel J. Park and Gillian H.
`Clow of Alston & Bird LLP, Los Angeles, California; Michael A. Valerio of
`Alston & Bird LLP, Washington, District of Columbia; and James D. Oliver,
`Anthony F. Rupp, and Holly Dyer of Foulston Siefkin LLP, Overland Park,
`Kansas, with him on the brief), for Defendant-Appellee.
`_________________________________
`
`
`
`
`
`

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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 2
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`Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.
`_________________________________
`
`ROSSMAN, Circuit Judge.
`_________________________________
`
`Plaintiffs are consumers who sued Defendant Security Benefit Life
`
`Insurance Company under
`
`the Racketeer
`
`Influenced and Corrupt
`
`Organizations Act (“RICO”), 18 U.S.C. § 1962, and state law, alleging Security
`
`Benefit developed a fraudulent scheme to design and market certain annuity
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`products. This appeal requires us to determine whether the district court
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`properly dismissed Plaintiffs’ first amended complaint without prejudice for
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`lack of particularity and plausibility in pleading fraud. Because we conclude
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`Plaintiffs have alleged facially plausible fraud claims with the particularity
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`required under Federal Rule of Civil Procedure 9(b), the district court erred in
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`granting Security Benefit’s motion to dismiss under Federal Rule of Civil
`
`Procedure 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse
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`and remand for further proceedings.
`
`I
`
`Background1
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`This case involves equity-indexed deferred annuities, a type of insurance
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`product marketed and sold to Plaintiffs by Security Benefit. Before turning to
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`
`1 We rely on the complaint’s allegations for our account of this appeal’s
`background.
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`2
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`

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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 3
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`our analysis, we will explain the technical features of this annuity. As we
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`discuss later, the complaint’s principal fraud claims concern these features and
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`the alleged undisclosed effects of their collective operation on Plaintiffs’
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`investments.
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`A. Equity-Indexed Deferred Annuities
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`1. Basic Features
`
`A deferred annuity is a contract between a consumer and an insurance
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`company. A consumer purchases the deferred annuity with a single “up-front
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`payment”—an initial premium—deposited into the consumer’s account for a
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`deferral period. Aplt. App. vol. 1 at 161 ¶ 23. The deferral period is a term of
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`years specified in the annuity contract. The insurance company invests the
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`consumer’s initial premium over the deferral period. A deferred annuity is a
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`long-term investment because an annuity owner often cannot access their
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`initial premium during the deferral period without incurring a financial
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`penalty. An annuity owner may receive a lump sum payment at the end of their
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`deferral period, or a stream of periodic payments.
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`An equity-indexed deferred annuity—at issue here—gives consumers
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`the choice to allocate their initial premium among several crediting options.
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`Consumers may allocate their initial premium to a crediting option that
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`provides a fixed interest rate “not less than a modest minimum guaranteed
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`rate,” or to a crediting option linked to designated stock indices. Id. at 161-62
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`3
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`

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`¶ 24.2 Equity-indexed deferred annuities are usually linked to third-party
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`stock indices like the Standard & Poor’s 500. One key feature of an
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`equity-indexed deferred annuity is its performance is tied to the success of the
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`linked financial market.
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`2. Participation Rates & “Caps”
`
`The index-linked return credited to the investor can vary not only based
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`on the performance of the stock index, but also based on the particular terms
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`of the annuity contract. Participation rates and “caps” are common features of
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`annuity products. A cap is a limit—usually a fixed percentage—on the amount
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`an annuity owner earns from the underlying stock index’s gains. A
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`participation rate is the percentage of the underlying stock index’s
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`performance that the insurance company agrees to pass along to the investor.3
`
`
`2 An equity-indexed deferred annuity “guarantees a minimum return
`to the contract owner if the contract is held to maturity.” Equity Index
`Insurance Products, Securities Act Release No. 7438, Fed. Sec. L. Rep.
`(CCH) ¶ 85,957 (Aug. 20, 1997). In this way equity-indexed deferred
`annuities “combine features of traditional insurance products (guaranteed
`minimum return) and traditional securities (return linked to equity
`markets).” Id.
`
` The district court provides an example: if an annuity’s participation
`rate is 70% and the underlying index increases by 10%, then the annuity
`account is credited with 70% of the index’s increase, or 7%. Aplt. App. vol. 8
`at 1951.
`
`
` 3
`
`4
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`Higher participation rates and higher caps yield a higher rate of interest
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`credited to the annuity holder’s account. Many equity-indexed deferred
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`annuities impose both caps and participation rates.
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`B. Security Benefit’s Equity-Indexed Deferred Annuity Products
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`Shortly after being acquired by a private equity firm in 2010, Security
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`Benefit developed and marketed equity-indexed deferred annuity products. It
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`sold two annuities: the “Secure Income Annuity” and the “Total Value Annuity”
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`(collectively, the “annuity products”). Aplt. App. vol. 1 at 157 ¶ 3. Investors
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`paid fees and charges associated with the annuity products. Plaintiffs allege
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`these annuity products share several features relevant to their fraud claims.
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`1. Proprietary Indices
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`Equity-indexed deferred annuities typically tie their performance to
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`established financial markets like the Standard & Poor’s 500. The annuity
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`products at issue here were associated with proprietary stock indices used by
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`Security Benefit.
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`From 2012 to 2015, Security Benefit used three proprietary indices. Two
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`were linked to the Total Value Annuity product. One was linked to the Secure
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`Income Annuity product.4 Once a consumer bought one of these annuity
`
`
`4 The proprietary indices are called the “5-Year Annuity Linked TV
`Index,” the “Morgan Stanley Dynamic Allocation Index Account,” and the
`“BNP Paribas High Dividend Plus Annual Point to Point Index Account –
`Year 2.” Aplt. App. vol. 1 at 158 ¶ 5. We discuss the individual proprietary
`
`5
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`products, Security Benefit allowed the consumer to allocate some or all their
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`initial premium to the corresponding proprietary index.
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`According to Plaintiffs, Security Benefit’s annuities linked to the
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`proprietary indices “would—by design—produce near-zero returns due to
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`misrepresented and undisclosed features, risks, charges and attributes.” Aplt.
`
`App. vol. 1 at 156-57 ¶ 2. Security Benefit misleadingly marketed the annuity
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`products as attractive investment opportunities—uncapped and with 100%
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`participation rates in the proprietary indices. But Plaintiffs allege the annuity
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`products were, in practice, actually capped, and had less than 100%
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`participation rates. The only information “reasonably available” to consumers
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`about Security Benefit’s proprietary indices, Plaintiffs allege, was in the
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`documents created and provided to them by Security Benefit. Id. at 183-84
`
`¶ 84.
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`2. “Backcasting” Proprietary Indices’ Performance
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`“Backcasting” is a methodology used to assess annuity performance by
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`looking at a selective period of an asset’s past performance to project its future
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`returns. The proprietary indices used by Security Benefit were relatively new,
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`but Security Benefit used backcasted past performance data for periods
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`predating their creation. Security Benefit’s backcasted data allegedly relied on
`
`
`indices as they become relevant in our analysis of Plaintiffs’ allegations and
`the district court’s dismissal order.
`
`6
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`“cherry-picked” periods when the proprietary
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`indices’ assets showed
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`uncommonly high gains. See Aplt. App. vol. 1 at 174 ¶ 62. According to
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`Plaintiffs, this representation of the proprietary
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`indices’ backcasted
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`performance was misleading, inaccurately representing outsized future
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`returns. Security Benefit also assumed a 100% participation rate over the
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`backcasted period. This assumption was false, Plaintiffs allege, because
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`“hedging costs associated with . . . market conditions would preclude” full
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`participation in the proprietary indices. Id. at 174 ¶ 64. According to the
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`complaint, Security Benefit thus misleadingly suggested Plaintiffs would
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`receive future returns that could not actually be achieved. See id. at 174-75
`
`¶ 65.
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`3. Volatility Control Overlay
`
`A volatility control overlay is a feature designed to prevent price
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`variation in “assets encompassed by [an] index.” Aplt. App. vol. 1 at 168 ¶ 46.
`
`For example, high volatility means a stock’s price moves up and down in wide
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`ranges within a short period of time. Lower volatility means the price changes
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`at a slower, more gradual pace. In preventing price variation, the volatility
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`control overlay is designed to protect investors from losses caused by asset
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`volatility.
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`Plaintiffs claim Security Benefit made misrepresentations and omitted
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`material information about the volatility control overlay feature of its annuity
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`7
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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 8
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`products and how it affected their investments. For example, Security Benefit
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`allegedly misrepresented that the volatility control overlay benefited Plaintiffs
`
`and other consumers who purchased the annuity products. However, Security
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`Benefit’s volatility control overlay offered Plaintiffs no benefit because the
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`annuity products actually had a 0% interest floor. This means the owner never
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`lost his initial investment. Security Benefit also failed to disclose that the
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`volatility control overlay actually reduced Plaintiffs’ investment returns. And
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`the volatility control overlay increased a fee, called an “index cost spread,” that
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`Plaintiffs had to pay Security Benefit. Id. at 186 ¶ 91. According to Plaintiffs,
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`Security Benefit made these misrepresentations and omissions in various
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`documents described in the complaint.
`
`C. Security Benefit’s Misrepresentations & Omissions
`About the Annuity Products
`
`Plaintiffs claim Security Benefit fraudulently induced them to purchase
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`their annuity products using two types of documents. These materials
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`allegedly misrepresented that the annuity products would yield favorable
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`investment returns. What these documents said—or failed to say—about the
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`annuity products is central to Plaintiffs’ claims.
`
`1. Marketing Materials
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`Security Benefit allegedly induced Plaintiffs to purchase annuity
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`products by using misleading marketing materials. According to Plaintiffs,
`
`8
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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 9
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`Security Benefit created backcasted performance data, then used it to
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`hypothetically illustrate the proprietary indices’ performance, and included
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`those hypothetical illustrations, derived from backcasted data, in its
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`marketing materials to represent favorable future returns.
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`The marketing materials also compared the proprietary indices’
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`performance to lower-performing, non-proprietary indices like the Standard &
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`Poor’s 500 and Russell 1000. These comparisons allegedly created a false
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`choice, incentivizing consumers to allocate their premiums to Security
`
`Benefit’s proprietary indices. Plaintiffs claim Security Benefit’s misleading
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`representation that the proprietary indices were uncapped and had a 100%
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`participation rate further heightened the contrast between the proprietary and
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`non-proprietary indices’ performance.
`
`2. Statements of Understanding
`
`A Statement of Understanding is a document Security Benefit provided
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`to the consumer at the time of sale that describes the annuity product and its
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`features. Security Benefit required the purchaser of an annuity product to sign
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`a Statement of Understanding; these documents were also available to
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`consumers online. According to Plaintiffs, the Statements of Understanding
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`made material misrepresentations and omitted material facts about the
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`proprietary indices.
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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 10
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`For example, the Statement of Understanding about the “5-Year Annuity
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`Linked TV Index” (“ALTV Index”) did not disclose how various features of the
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`Total Value Annuity offset the ALTV Index’s below-market returns and
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`negatively affected the ALTV Index’s performance. The ALTV Index Statement
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`of Understanding also did not disclose that the Index was designed using a
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`selective, backcasted performance period. Along with these omissions, the
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`ALTV Index Statement of Understanding allegedly misrepresented the
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`benefits of the volatility control overlay. According to Plaintiffs, the volatility
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`control overlay actually worked to reduce the proprietary indices’ participation
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`rates. Security Benefit further misrepresented investors would benefit from
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`allocating their premiums to the ALTV Index because it was not tied to equity
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`and bond markets—but this actually reduced investors’ returns.5
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`D. Procedural History
`
`In November 2019, Plaintiff Clinton sued Security Benefit on behalf of
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`herself and others similarly situated in federal district court in the Southern
`
`District of Florida. Plaintiff Clinton alleged Security Benefit devised a
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`fraudulent scheme to develop and sell equity-indexed deferred annuities that
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`it knew would produce near-zero returns for consumers and relied on allegedly
`
`
`5 The complaint makes similar allegations about other Statements of
`Understanding
`provided
`to Plaintiffs, which
`also
`contained
`misrepresentations or omissions about the proprietary indices.
`
`10
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`deceptive marketing practices to induce consumers to purchase these annuity
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`products. See generally Class Action Complaint, Clinton v. Sec. Benefit Life Ins.
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`Co., 519 F. Supp. 3d 943 (D. Kan. 2021) (Case No. 5:20-cv-0438-HLT-KGG),
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`ECF No. 1. The company linked the annuities’ performance to recently created,
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`synthetic proprietary indices instead of to traditional markets like the
`
`Standard & Poor’s 500. To fraudulently induce consumers’ purchase of the
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`annuity products, Security Benefit used marketing materials and the
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`Statements of Understanding that contained misrepresentations and
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`omissions about how the proprietary indices operated and were expected to
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`perform. Security Benefit’s alleged conduct, Plaintiff Clinton claimed, violated
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`RICO, 18 U.S.C. § 1962(c) and (d). Plaintiff Clinton alleged the annuity
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`products’ costs, fees, and “performance dampening features” operated
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`collectively to offset the proprietary indices’ returns, and that Security Benefit
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`did not disclose the “collective impact” of these features on consumers’
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`investments. Class Action Complaint, Clinton, 519 F. Supp. 3d 943, ECF No. 1
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`at 23 ¶ 81.
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`In January 2020, Plaintiffs amended their complaint to add additional
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`plaintiffs and claims under RICO, 18 U.S.C. § 1962(c) and (d), along with
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`consumer protection, unfair competition, and common law fraud claims under
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`California, Illinois, Arizona, and Nevada state law. See Aplt. App. vol. 1 at 155.
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`11
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`Security Benefit moved to dismiss, contending the complaint failed to
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`plead plausible fraud claims with particularity.6 Aplt. App. vol. 7 at 1870-78.
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`This action was then transferred to the District of Kansas under 28 U.S.C.
`
`§ 1404.7 In February 2021, the district court dismissed the complaint without
`
`prejudice.8 Aplt. App. vol. 8 at 1972-73. This timely appeal followed.
`
`
`6 Security Benefit also argued in its motion to dismiss that the
`McCarran-Ferguson Act barred Plaintiffs’ RICO claims. The district court
`concluded the McCarran-Ferguson Act did not reverse-preempt Plaintiffs’
`RICO claims. The district court’s ruling on this issue is not before us on
`appeal.
`
` 7
`
` Security Benefit asked to transfer the case to federal district court
`in Kansas, contending that was a more convenient forum. The district court
`granted the motion because the lawsuit could originally have been brought
`in the District of Kansas, for the “convenience of the parties and witnesses”
`and “in the interest of justice.” R. & R. on Def.’s Mot. to Transfer, Clinton,
`519 F. Supp. 3d 943 (Case No. 5:20-cv-0438-HLT-KGG), ECF No. 73 at 3
`(citing 28 U.S.C. § 1404(a)); Order, ECF No. 75 (adopting magistrate judge’s
`report and recommendation to transfer).
`
` 8
`
` In 2019, the district court dismissed an action by a different named
`plaintiff alleging RICO claims against Security Benefit. See Ogles v. Sec.
`Benefit Life Ins. Co., 401 F. Supp. 3d 1210 (D. Kan. 2019). There, the district
`court concluded the plaintiff’s “RICO theory alleging the fraudulent design
`of the [Total Value Annuity] is dismissed for failure to state a claim under
`Rule 12(b)(6),” id. at 1213, because the plaintiff had “not pleaded mail and
`wire fraud with sufficient particularity to state a valid RICO claim,” id.
`at 1228 n.21. The plaintiff in Ogles did not appeal the dismissal order.
`
`
`12
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`II
`
`Discussion
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`A. Appellate Jurisdiction
`
`We must first determine whether the dismissal of the complaint
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`without prejudice was a “final decision” over which we have appellate
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`jurisdiction. See 28 U.S.C. § 1291. “Although neither party challenges our
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`appellate jurisdiction, we have an independent duty to examine our own
`
`jurisdiction.” Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th
`
`Cir. 2001) (citation omitted).
`
`“A dismissal of the complaint is ordinarily a non-final, nonappealable
`
`order (since amendment would generally be available), while a dismissal of
`
`the entire action is ordinarily final.” Moya v. Schollenbarger, 465 F.3d 444,
`
`449 (10th Cir. 2006) (citation omitted). We scrutinize complaint dismissals
`
`“to pinpoint those situations wherein, in a practical sense, the district court
`
`by its order has dismissed a plaintiff’s action as well.” Id. (citation omitted).
`
`In doing so, we “look to the substance and objective intent of the district
`
`court’s order, not just its terminology.” Id. (emphasis omitted).
`
`The district court did “not grant leave to amend” and dismissed the
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`complaint “without prejudice.” Aplt. App. vol. 8 at 1972 n.14. It then entered
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`judgment and “closed” the case. Id. at 1974. A dismissal without prejudice
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`is “usually not a final decision.” Amazon, 273 F.3d at 1275. But as Plaintiffs
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`correctly contend, a dismissal without prejudice may be a final decision
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`where the district court dismisses the action as well. See Moya, 465 F.3d
`
`at 449. Here, the district court denied leave to amend, entered judgment for
`
`Security Benefit, and closed the case. Under the circumstances, this
`
`indicates the district court’s objective intent to dismiss the entire action.
`
`See id. at 448-49; accord Lewis v. Clark, 577 F. App’x 786, 792 (10th Cir.
`
`2014) (unpublished) (holding that order dismissing a complaint without
`
`prejudice for failure to state a claim was a final dismissal of the action
`
`because the court did not grant leave to amend and declared “this case is
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`closed”). We thus conclude the order dismissing the complaint without
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`prejudice disposed of the entire action and rendered the decision final under
`
`§ 1291. We have jurisdiction and proceed to the merits.
`
`B. The district court erred in dismissing the complaint.
`
`The district court dismissed Plaintiffs’ complaint on two grounds; both
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`are challenged in this appeal. First, we consider the district court’s
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`conclusion that the complaint did not satisfy Federal Rule of Civil
`
`Procedure 9(b)’s particularity standard. We next consider the district
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`court’s conclusion that Plaintiffs’ claims were implausible under Federal
`
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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 15
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`Rule of Civil Procedure 12(b)(6).9 As we explain, we agree with Plaintiffs
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`that the district court committed reversible error.
`
`1. Standard of Review
`
`We review de novo the dismissal of a complaint under Rule 12(b)(6).
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`Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). “The dismissal of a
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`complaint . . . for failing to satisfy the requirements of Rule 9(b) is treated
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`as a dismissal for failure to state a claim” under Rule 12(b)(6). Seattle-First
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`Nat’l Bank v. Carlstedt, 800 F.2d 1008, 1011 (10th Cir. 1986) (citation
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`omitted).
`
`To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege
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`facts that, if true, “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.
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`Twombly, 550 U.S. 544, 570 (2007)). We have explained that, when Iqbal
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`speaks of a claim’s facial plausibility, the complaint must plead “factual
`
`content that allows the court to draw the reasonable inference that the
`
`
`9 We have never prescribed an order-of-operations for the analysis of
`fraud-based claims under Rules 9(b) and 12(b)(6), nor would it be prudent
`to do so. But here, where a plaintiff must plead “with particularity the
`circumstances constituting” the predicate acts of mail and wire fraud, see
`Fed. R. Civ. P. 9(b), we first determine if the complaint has satisfied
`Rule 9(b), and if so satisfied, we next consider, on the basis of the
`particularized allegations, whether the complaint alleges a facially
`plausible claim for relief, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
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`defendant is liable for the misconduct alleged.” Hogan v. Winder, 762 F.3d
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`1096, 1104 (10th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
`
`In reviewing an order granting a motion to dismiss, our role is like
`
`the district court’s: we accept the well-pleaded facts alleged as true and view
`
`them in the light most favorable to the plaintiff, see Mayfield v. Bethards,
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`826 F.3d 1252, 1255 (10th Cir. 2016), but need not accept “[t]hreadbare
`
`recitals of the elements of a cause of action [that are] supported by mere
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`conclusory statements,” Iqbal, 556 U.S. at 678 (citation omitted), or
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`allegations plainly contradicted by properly considered documents or
`
`exhibits, Farrell-Cooper Mining Co. v. U.S. Dep’t of the Interior, 728 F.3d
`
`1229, 1237 n.6 (10th Cir. 2013).10 “An allegation is conclusory where it
`
`states an inference without stating underlying facts or is devoid of any
`
`
`10 The dissent appears convinced this case can be decided by
`identifying what it believes to be contradictions between “the contents of
`the sales documents” and the “specific allegations of the complaint.” Dissent
`at 2. We reiterate our agreement, as a general matter, that courts need not
`accept “allegations that contradict a properly considered document.”
`Farrell-Cooper, 728 F.3d at 1237 n.6 (citation omitted). We disagree,
`however, with the dissent’s suggestion this principle is dispositive in this
`case. This is not, for example, Kramer v. Time Warner Inc., 937 F.2d 767
`(2d Cir. 1991), cited as analogous by the dissent at 2. There, the complaint
`alleged that the proposed merger consideration was said to “consist of cash,
`at least in part.” 937 F.2d at 775. However, when reviewing the actual offer
`to purchase, the Second Circuit found the document “stated that the
`consideration would consist of ‘cash or debt or equity securities.’” Id.
`(emphases added). There was thus a plain contradiction between what the
`complaint alleged and what the document said—one we cannot discern in
`this case, as we will explain.
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`factual enhancement.” Brooks v. Mentor Worldwide LLC, 985 F.3d 1272,
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`1281 (10th Cir. 2021) (citation omitted). “The nature and specificity of the
`
`allegations required to state a plausible claim will vary based on context.”
`
`Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)
`
`(citation omitted). Our task is to consider the complaint’s allegations “taken
`
`as a whole.” U.S. ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163,
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`1173 (10th Cir. 2010) (citation omitted); see also Twombly, 550 U.S. at 569
`
`n.14; George v. Urb. Settlement Servs., 833 F.3d 1242, 1257 (10th Cir. 2016);
`
`cf. In re Hain Celestial Group, Inc. Securities Litigation, 20 F.4th 131, 137-
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`38 (2d Cir. 2021) (directing district court to “consider cumulative effect of
`
`the circumstantial allegations” when weighing scienter in securities fraud
`
`case).
`
`And like the district court, we may consider certain documents outside
`
`the four corners of the complaint. See, e.g., Smith v. United States, 561 F.3d
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`1090, 1098 (10th Cir. 2009) (citation omitted). “Generally, a court considers
`
`only the contents of the complaint when ruling on a 12(b)(6) motion,” but
`
`“[e]xceptions to this general rule include the following: documents
`
`incorporated by reference in the complaint; documents referred to in and
`
`central to the complaint, when no party disputes its authenticity; and
`
`17
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`

`

`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 18
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`‘matters of which a court may take judicial notice.’” Berneike v.
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`CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013) (citation omitted).11
`
`“[G]ranting [a] motion to dismiss is a harsh remedy which must be
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`cautiously studied, not only to effectuate the spirit of the liberal rules of
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`pleading but also to protect the interests of justice.” Dias v. City & Cnty. of
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`Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (second alteration in original)
`
`(citation omitted). There is a “low bar for surviving a motion to dismiss,”
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`Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1034 (10th Cir.
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`2020), and “a well-pleaded complaint may proceed even if it strikes a savvy
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`judge that actual proof of those facts is improbable, and ‘that a recovery is
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`very remote and unlikely,’” Dias, 567 F.3d at 1178 (quoting Twombly, 550
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`U.S. at 556); see also Woods v. City of Greensboro, 855 F.3d 639, 652
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`(4th Cir. 2017) (“Whether [a plaintiff] will have a difficult time establishing
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`the merits of its claim is of little import now.”).12
`
`
`11 At the request of the parties, the district court took judicial notice
`of certain documents under Federal Rule of Evidence 201 that were
`referenced in the complaint or publicly accessible and of undisputed
`authenticity. We conclude all of the judicially noticed documents considered
`by the district court fall appropriately within the four “exceptions”
`contemplated by Berneike, 708 F.3d at 1146, and the parties have never
`argued otherwise. Accordingly, we will consider the judicially noticed
`materials in our review of the dismissal order.
`
`
`12 Besides acknowledging “the long-established proposition that on a
`motion to dismiss a complaint the court should accept as true all well-
`pleaded factual allegations in the complaint,” the dissent does not engage
`
`18
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`

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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 19
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`2. The district court erred in dismissing the complaint for failing to
`satisfy Rule 9(b)’s particularity standard.
`Plaintiffs allege Security Benefit violated the federal RICO statute,
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`which makes it “unlawful for any person employed by or associated with
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`any enterprise engaged in, or the activities of which affect, interstate or
`
`foreign commerce, to conduct or participate, directly or indirectly, in the
`
`
`with the standards on a motion to dismiss. Dissent at 1. Perhaps this leads
`the dissent to a misimpression about the court’s opinion. For example:
`
` We do not “accept specific allegations of the complaint as
`gospel.” Dissent at 2. In reviewing the motion to dismiss, we do
`accept well-pled allegations as true and draw reasonable
`inferences in favor of the Plaintiffs, as the Federal Rules and
`our precedents command.
`
` We do not accept “Plaintiffs’ allegations . . . that Security
`Benefit’s backcasting was deceptive.” Dissent at 4. We do
`conclude these arguments were advanced with legal sufficiency
`while declining “to weigh potential evidence that the parties
`might present at trial.” Peterson v. Grisham, 594 F.3d 723, 727
`(10th Cir. 2010).
`
` And we do not “endorse[] the complaint’s allegation that
`Security Benefit was deceptive in stating that its investment
`products are not capped.” Dissent at 6. We do find Plaintiffs’
`complaint advanced sufficient “[f]actual allegations . . . to raise
`the right to relief above the speculative level.” Twombly, 550
`U.S. at 555.
`
`The dissent’s disagreement with the disposition appears to rest in good
`measure on conjecture that Plaintiffs will be unable to prove their claims.
`But the ultimate merits of Plaintiffs’ case is not the question before us.
`Rule 9(b) demands “particularity,” not proof. Fed. R. Civ. P. 9(b). And at the
`motion to dismiss stage, we are assessing the complaint only for legal
`sufficiency to state a claim, which means we do not “weigh potential
`evidence that the parties might present at trial.” Smith, 561 F.3d at 1098.
`
`19
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`

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`Appellate Case: 21-3035 Document: 010110833726 Date Filed: 03/28/2023 Page: 20
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`conduct of such enterprise’s affairs through a pattern of racketeering
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`activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).
`
`According to Plaintiffs, Security Benefit committed mail fraud in
`
`violation of 18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. § 1343.
`
`There is no dispute both mail and wire fraud are racketeering activities
`
`under RICO. See 18 U.S.C. § 1961(1)(B) (defining “racketeering activity” to
`
`include violations of 18 U.S.C. §§ 1341 and 1343). Rule 9(b) states: “In
`
`alleging fraud or mistake, a party must state with particularity the
`
`circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “The
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`particularity requirement of Rule 9(b) . . . applies to claims of mail and wire
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`fraud.” Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir. 2006); accord George,
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`833 F.3d at 1254. Therefore, as the district court correctly determined,
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`Plaintiffs must plead “with particularity the circumstances constituting”
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`Security Benefit’s alleged mail and wire fraud. Fed. R. Civ. P. 9(b).
`
`“Rule 9(b)’s purpose is ‘to afford [a] defendant fair notice’ of a
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`plaintiff’s claims and the factual grounds supporting those claims.” George,
`
`833 F.3d at 1255 (alteration in original) (citation omi