Bissell v. Merrill Lynch & Co.

157 F.3d 138, 1998 WL 665798

Opinion

RALPH K. WINTER, Chief Judge:

Louis Bissell, Jr. appeals from Judge Schwartz’s order denying his motion for class certification and dismissing his complaint for failure to state a claim. See Bissell v. Merrill Lynch & Co., Inc., 937 F.Supp. 237 (S.D.N.Y.1996).

The facts here are identical to those in Levitin v. Painewebber, Inc., 159 F.3d 698, No. 96-7994, 1998 WL 665039 (2d Cir.1998) but for two matters. The first difference is that instead of posting as collateral cash or securities other than those being sold short, Bissell traded “against the box.” In trading “against the box,” the customer posts as collateral shares he owns that are identical to or convertible into those being sold short. The second difference from Levitin is that Bissell was a large trader who was able to negotiate a remittance of the earnings real ized by appellees on the shares he posted as collateral. He alleges, however, that only a portion of those earnings were remitted.

Neither difference is material, and we affirm for the reasons stated in Levitin.