Levine v. Metal Recovery Technologies, Inc.

182 F.R.D. 112, 1998 U.S. Dist. LEXIS 21713, 1998 WL 557555
District Court, D. Delaware·Decided June 30, 1998·No. No. Civ.A. 96-525-JJF·Published·Cited by 1 cases

Opinion

MEMORANDUM OPINION

FARNAN, Chief Judge.

Presently before the Court is Defendant Barron Chase Securities, Inc.’s Motion To Dismiss (D.I. 81) pursuant to Federal Rules of Civil Procedure (“FRCP”) 9(b) and 12(b). The Amended Complaint alleges that Defendants engaged in a scheme and conspiracy to defraud that involved three basic components:

(1) certain Defendants issued statements regarding Malvy Technology, Inc.’s (“Mal-vy”) 1 stage of development, principal product, and prospects which misrepresented and omitted material facts and had no factual basis;

(2) Defendant Salter in conspiracy with other Defendants bribed securities brokers and traders, including four identified persons at Barron Chase, to induce them to sell Malvy stock aggressively to unsuspecting members of the investing public, which thereby, inflated the market price for Malvy stock; and

(3) Defendants laundered large amounts of unregistered stock into the United States market, in large part through Salter’s accounts, thereby reaping substantial personal profits. (D.I. 65). Specific to Barron Chase,2 the Amended Complaint alleges that it actively and directly participated in the latter two aspects of this fraud. The Amended Complaint alleges that Barron Chase had knowledge of its employees’ acceptance of illegal payments and participation in an illegal scheme to defraud. (D.I. 84 at 2-3).

A. Statute of Limitations

In its Motion to Dismiss, Barron Chase contends that Plaintiffs Section 10(b) claims against it are time-barred, arguing that the claims were filed more than one year after Plaintiff was on notice of the relevant facts. A claim under Section 10(b) of the Securities Exchange Act must be commenced within one year after discovery or notice of the facts constituting the violation and within three years after such violation. Westinghouse Electric Corp. v. Franklin, 993 F.2d 349, 352 (3d Cir.1993). Specifically, Barron Chase contends that Plaintiff was first put on notice of the alleged wrongdoing on or about May 24, 1995 when the company filed its annual report on Form 10-K. (D.I. 82 at 8). Barron Chase asserts that Plaintiff received further notice when on June 30, 1995, Malvy announced that it had changed its business emphasis and curtailed its Malvy operations. As a result of this announcement, Malvy’s stock declined and its subsidiaries were soon placed in receivership. (D.I. 82 at 8). Plaintiff commenced this action on October 31, 1996, more than one year after the filing of the Form 10-K and the decline in Malvy’s stock, subsequent to the June 30 announcement. Barron Chase argues that these events should have placed Plaintiff on notice of Barron Chase’s participation in the alleged fraud.

At this juncture of the litigation, the Court concludes that Barron Chase has not conclu[115] sively demonstrated that Plaintiff had reason to suspect Barron Chase’s participation in the alleged Malvy fraud until September 5, 1996, less than two months prior to the filing of the Complaint in this action. In strong contradiction to Barron Chase’s contentions, Plaintiff asserts that there was no indication that Barron Chase had participated in the fraud until September 5, 1996 when articles in The Sun-Sentinel and The New York Times reported that a stock promoter, Gary Salter, had bribed brokers to solicit their clients to purchase various stocks, including Malvy, and that three brokers at Barron Chase had pled guilty to securities fraud for accepting bribes. (D.I. 84 at 6-7).

B. Respondeat Superior and Conspiracy

Barron Chase also argues that neither respondeat superior or conspiracy are viable theories under Section 10(b) since the United States Supreme Court decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, NA, 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). In Central Bank, the Supreme Court determined that Congress did not intend to create aider and abetter liability. 511 U.S. at 184, 114 S.Ct. 1439. Notably, in a dissenting opinion, Justice Stevens opined that imposition of secondary liability under respondeat superior and other common law agency principles “appear unlikely to survive the Court’s decision.” Id. at 200-201 n. 12,114 S.Ct. 1439.

In AT & T Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421 (3d Cir.1994), the Court of Appeals for the Third Circuit considered the impact of Central Bank on claims of respondeat superior under the Lan-ham Act. The Third Circuit in AT & T held that the Central Bank decision did not affect the availability of respondeat superior liability. Id. at 1430-31. The Third Circuit determined that imposition of liability under traditional theories such as respondeat superior does not expand the scope of prohibited conduct. Id. While other circuit courts have rendered decisions inconsistent with AT & T, the Court is compelled to follow AT & T and conclude that respondeat superior liability is still available under securities laws in this circuit.

The Court further concludes that conspiracy liability survives the Central Bank decision. The Court finds In re Towers Financial Corp. Noteholders Litigation, 936 F.Supp. 126 (S.D.N.Y.1996) instructive on this issue. The In re Towers court noted that the aiding and abetting allegations in Central Bank involved only recklessness, not intentional wrongdoing which typically underlies claims of conspiracy. Id. at 130. For the reasons provided in the In re Towers decision, the Court concludes that Plaintiff may maintain a conspiracy claim in this action.

C. FRCP 9(b)

Barron Chase also contends that Plaintiffs Amended Complaint fails to allege fraud as required by FRCP 9(b), which provides that in pleading claims of fraud, “the circumstances constituting fraud ... shall be stated with particularity.” Specifically, Barron Chase argues that Plaintiff failed to allege with particularity the specific acts that are attributable to the fraudulent scheme or that Barron Chase had any knowledge as to the alleged false statements.

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Levine v. Metal Recovery Technologies, Inc., 182 F.R.D. 112, 1998 U.S. Dist. LEXIS 21713, 1998 WL 557555 (D. Del. 1998).

182 F.R.D. 112 (Levine v. Metal Recovery Technologies, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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