Adrian Freeman v. Laventhol & Horwath, Bank of the South, N.A.

34 F.3d 333
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 2, 1994
Docket92-6123, 92-6191
StatusPublished
Cited by17 cases

This text of 34 F.3d 333 (Adrian Freeman v. Laventhol & Horwath, Bank of the South, N.A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adrian Freeman v. Laventhol & Horwath, Bank of the South, N.A., 34 F.3d 333 (6th Cir. 1994).

Opinions

GILMORE, Senior District Judge, delivered the opinion of the court in which MILBURN, Circuit Judge, joined. NELSON, Circuit Judge (pp. 344-45), delivered a separate opinion concurring in part and dissenting in part.

GILMORE, Senior District Judge.

The plaintiffs, Adrian Freeman, et al., appeal from an order of the United States District Court for the Eastern District of Kentucky granting judgment on the pleadings under Federal Rule of Civil Procedure 12(c) for defendants on the ground that plaintiffs’ federal securities claims brought pursuant to § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 were time-barred. Defendants, Bank of the South, et al., cross-appeal the district court’s order denying [336]*336their earlier motion for summary judgment based on a statute of limitations defense.

On appeal, the principal issues before this Court include: (1) whether the district court erred in applying the statute of limitations embodied in Kentucky's blue sky law, thereby refusing to apply Kentucky’s borrowing statute, and (2) whether the district court erred in ruling that § 27A of the Securities Exchange Act of 1934 is unconstitutional. For the reasons set out below, we reverse in part and remand this case for further proceedings.

I.

A careful review of the record demonstrates the following facts. In 1983, the City of Florence, Kentucky issued tax-exempt municipal bonds (the “Bonds”) to finance the cost of acquiring and constructing the North River Retirement Center, Inc. (“North River”), a residential facility for the elderly. The Bonds were issued and sold pursuant to an Official Statement dated June 30, 1983.

North River was intended to be a three story facility, consisting of 175 separate residential units. The construction of the North River project was substantially finished, but the project was not successful. In July of 1985, the indenture trustee, Bank South, N.A., declared the project to be in default as not enough units had been sold to service the debt. As a result, the December 1,1985 first scheduled interest payment to bondholders was not made. Thereafter, on December 31, 1986, North River filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101, et seq.

Plaintiffs commenced this federal securities action on December 30, 1987, on behalf of the holders of the $18,230,000.00 of Bonds, alleging a violation of § 10(b) of the Securities Exchange Act of 1934,15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. 240. Defendants comprise the participants in the bond issue, including the directors, feasibility consultants, project manager, project coordinator, marketing agent, and indenture trustee of North River, as well as various underwriters, broker-dealers, accountants and attorneys. Although the five named plaintiffs brought this action as a class action, the district court never certified a class.

On October 3, 1988, defendants moved to dismiss the complaint, or for summary judgment, on the ground that plaintiffs’ § 10(b) claims were time-barred. Defendants argued that the appropriate statute of limitations for § 10(b) claims was the “one year/ three-year” statute of limitations found in the 1934 Act for express causes of action created by the Act — one year after plaintiffs discovered the facts constituting the violation, but in any event not more than three years after the violation. Defendants urged the district court to follow the Third Circuit’s decision which had already determined that this was the correct rule.1

Alternatively, defendants argued that if the district court felt constrained to follow the then-existing precedent of “borrowing” state law to supply the statute of limitations for § 10(b) claims, then the district court was obliged to apply Kentucky’s “borrowing statute,” Ky.Rev.Stat. Ann. § 413.320, as an integral part of Kentucky limitations law.

The district court denied defendants’ motion in an order and opinion dated April 13, 1989. The district court stated that it was obliged by the then-existing precedent to apply “the three year Kentucky blue sky law statute of limitations contained in [Ky.Rev.' Stat. Ann.] § 292.480(3),” and that “under Federal law, [the] statute of limitations begins to run when ‘the fraud is or should have been discovered.’” The district court then determined that a reasonable investor should have been on notice of the potential problems on December 1, 1985 (when North River failed to make the first scheduled interest payment to bondholders), and thus plaintiffs’ complaint filed on December 30,1987 was not untimely under Kentucky’s three year limitations period.

In a separate opinion entered the same day, the district court denied defendants’ motion to dismiss, or for summary judgment, on plaintiffs’ “fraud on the market” claims. The [337]*337district court certified both its statute of limitations and its fraud rulings for interlocutory appeal. This Court granted defendants permission to appeal only the fraud on the market issue. The interlocutory appeal of the fraud on the market issue resulted in the reversal of the district court. This Court ruled that defendants were entitled to judgment as a matter of law on plaintiffs’ fraud on the market claims, and the case was remanded for further proceedings. See Freeman v. Laventhol & Horwath, 915 F.2d 193 (6th Cir.1990).

On June 20, 1991, the United States Supreme Court decided Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). In Lampf, the Court adopted the “one-year/ three-year” limitations period in § 9(e) of the Securities Exchange Act of 1934 as a uniform statute of limitations in § 10(b) actions. Therefore, after Lampf, the limitations period for § 10(b) claims is one year from discovery of the fraud, but in any' event not more than three years from the acts giving rise to the claim. Because the plaintiffs in Lampf had filed their complaints more than three years after the defendant’s alleged misrepresentations, the Court dismissed their claims as untimely.

On the same day, the Supreme Court ruled in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), that a newly announced rule of law that was applied to the litigants before the court must be retroactively applied by the courts to all cases not barred by res judicata or procedural requirements. Because the Supreme Court applied the new limitation period to the litigants in Lampf, Beam required the retroactive application of Lampf’s one-year/three-year limitations period to all pending § 10(b) eases, including the instant case. See, e.g., Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991).

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Bluebook (online)
34 F.3d 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adrian-freeman-v-laventhol-horwath-bank-of-the-south-na-ca6-1994.