The opinion of the court was delivered by: SWEET
The Judicial Panel on Multidistrict Litigation ("MDL") consolidated and transferred to this Court on October 10, 1991, a number of actions arising out of the demise of partnerships affiliated with Integrated Resources, Inc. ("Integrated"), which filed for relief under chapter 11 of the bankruptcy code, 11 U.S.C. §§ 101, et seq., in 1990. See In re Integrated Resources, Inc., 135 Bankr. 746, 748 (S.D.N.Y. 1992). Since the transfer of the original actions, several others have been filed in the Southern District of New York or transferred by the Multidistrict Panel to this Court and consolidated with these proceedings ("Later Filed Actions").
In general, the Plaintiffs in each of these actions bought limited partnership interests in ventures sponsored by Integrated or an entity associated with Integrated. The ventures were investment vehicles which bought, owned, operated, and leased residential and commercial real estate and equipment. The offer and sale of these interests was conducted in compliance with the requirements of Regulation D ("Reg. D"), Rules 501-08, 17 C.R.F. 230.501-230.508, of the Securities Act of 1933 ("1933 Act"), 15 U.S.C. §§ 77a, et seq., thereby exempting the transactions from the registration requirements of the 1933 Act. Since these transactions are not registered with the Securities and Exchange Commission, the 1933 Act limits purchasers to those who qualify as "accredited investors."
To qualify as a Reg. D accredited investor, a "natural person" must have "an individual net worth, or joint net worth with that person's spouse, at the time of his purchase [in excess of] $ 1,000,000"; or he must have:
had an individual income in excess of $ 200,000 in each of the two most recent years or joint income with the person's spouse in excess of $ 300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.
The purpose of these requirements is to facilitate and expedite specially designed offerings, while at the same time offsetting the danger posed by the lack of SEC scrutiny of the offer and sale by precluding those from participating in the offering who are inexperienced purchasers of securities and unable to afford professional advice regarding the merits and risks of purchasing the offered securities. Each of the investors in the Integrated partnerships was required to represent in writing that he qualified for Reg. D accredited-investor status and that he met the additional financial criteria set forth in the "Who May Invest" section of the confidential private placement memorandum ("PPM") issued for each partnership.
The investors were also warned in the respective partnership PPMs of various financial risks involved with each partnership investment. The following statement from the first paragraph of the Clovine Associates Limited Partnership PPM is typical:
The tax consequences of an investment in the Partnership, the absence of Cash Flow from such investment for at least the first four years of the operation of the Partnership and the illiquidity of such investment make the purchase of Interests suitable only for investors who have substantial net worth and substantial taxable income, and an Interest should be purchased only as a long-term investment.
Additionally, each PPM contained a section entitled "Risk Factors," in which the various risk factors of the investment were explicated at length, including, for example, restrictions on transferability and the possible lack of a market for the investment interests; the possible unavailability of tax benefits and changes in the tax law; risks arising from the terms and conditions of purchase money notes, mortgages, and leases; the possible inability to refinance the project; the possible lack of available sources of funds for the operating partnership; risks arising from leveraged financing and the ownership of the specific property; the possible inability to sell the project; and the possible adverse effects of technological developments in competing equipment.
The limited partnerships were highly leveraged, and the Plaintiffs allege they were promised considerable tax savings through debt financing and, after the initial debt was paid off, considerable profits from rental income from the buildings and equipment. The Plaintiffs further allege that the investments had no prospects for success from their inception and served no other economic purpose than to provide the Defendants with millions of dollars of profit in sales proceeds, fees, and other commissions.
On February 3, 1992, this Court signed "Pre-Trial Order No. 1" ("Pre-Trial Order") which, among other things, established an initial motion and discovery schedule for all actions subject to the MDL Order. The Pre-Trial Order created four separate global motion categories: (I) statutes of limitations governing the federal securities claims ("Global Motion I"), (II) the legal sufficiency of the federal securities claims ("Global Motion II"), (III) the legal sufficiency of the federal RICO claims ("Global Motion III"), and (IV) all Global Motion I, II, III motions applicable to the Later Filed Actions ("Global Motion IV"). The Pre-Trial Order also consolidated the briefing and hearing schedules for Global Motions I and II and Global Motions III and IV.
The actions subject to the present motion are:
Byrne v. Research Triangle Associates Limited Partnership, 91 Civ. 6966 ("Research Triangle ") (filed January 3, 1991 in the Arizona District, Phoenix Division);
Reagan v. 600 Grant Street Associates Limited Partnership, 91 Civ. 5498 ("600 Grant Street/Reagan ") (filed April 12, 1991 in the Central District of California);
Standefer v. Clovine Associates Limited Partnership, 91 Civ. 6968 ("Clovine/Standefer ") (filed April 9, 1991, in the Southern District of Ohio, Western Division);
Ellingson v. Kanzar Associates, 91 Civ. 6967 ("Clovine/Ellingson ") (filed March 14, 1991, in the Southern District of Ohio, Western Division);
Baird v. EVP Fourth Corp., 91 Civ. 1063 ("West Palm/Baird ") (filed February 12, 1991, in the Southern District of New York);
Coleman v EVP Fourth Corp., 91 Civ. 0678 ("West Palm/Coleman ") (filed January 23, 1991, in the Southern District of New York);
Coolspring Dental Clinic v. EVP Seventh Avenue Corp., 91 Civ. 6905 (" Rittenhouse ") (filed October 15, 1991, in the Southern District of New York);
Martin v. EVP Second Corp., 90 Civ. 7074 ("Lenox Towers ") (filed November 2, 1990, in the Southern District of New York; dismissed with leave to replead to add additional plaintiffs by this Court on August 26, 1992);
Gorman v. Sevzar Associates, 90 Civ. 6979 ("Southern Inns ") (filed October 19, 1990 in the Southern District of New York);
Greene's Ready Mixed Concrete Co. v. Fillmore Pacific Associates Limited Partnership, 91 Civ. 0978 ("Fillmore/Greene's ") (filed February 8, 1991, in the Southern District of New York);
Enviro Corp. v. Fillmore Pacific Associates Limited Partnership, 91 Civ. 1625 ("Fillmore/Enviro ") (filed March 7, 1991, in the Southern District of New York);
White v. Hunter Publishing Limited Partnership, 91 Civ. 2232 ("Hunter Publishing ") (filed April 1, 1991, in the Southern District of New York);
Christian v. Integrated MR Limited Partnership, 91 Civ. 6003 ("Intermobile ") (filed September 5, 1991, in the Southern District of New York).
The present motions do not apply to any of the Later Filed Actions or to Barron v. Miami Executive Towers Assocs. Ltd. Partnership, 89 Civ. 8569, (RWS) (filed December 18, 1989, in the Southern District of New York), or to Rabin v. Fivzar Assocs., 90 Civ. 4869 (RWS) (filed July 23, 1990, in the Southern District of New York). Nevertheless, the parties should assume that general principles set forth below will be applied to those actions in accordance with Global Motion IV.
Additionally, the Pre-Trial Order stayed the production of documents to the Plaintiffs by various parties pending the disposition of the Global Motions.
The Pre-Trial Order also stayed the depositions of parties, except as to the Plaintiffs' deposition of Landauer Associates, Inc., in Clovine/Ellingson, pending the disposition of the Global Motions and the completion of document discovery.
Pursuant to the schedule established in the Pre-Trial Order, as amended, the "Anderson Kill" and "Integrated" Defendants ("Moving Defendants")
moved for summary judgment dismissing the federal securities claims in the subject actions pursuant to Fed. R. Civ. P., Rules 12(b), 12(c), and 56, (Global Motion I), and for an order dismissing those claims under pursuant to Fed. R. Civ. P., Rules 12(b), 12(c), and 9(b) (Global Motion II), on February 21, 1992. Most of the Individual Defendants joined in these motions and either adopted the reasoning of the Anderson Kill and Integrated Defendants or submitted their own papers.
Additionally, pursuant to Rule 12(b)(6), Fed. R. Civ. P., the Plaintiffs in Lenox Towers moved to dismiss counterclaims made against them by the Anderson Kill and Camhy Karlinsky & Stein Defendants. See supra note 2.
Oral argument on these motions was heard on June 10, 1992. The cross-motion of the Lenox Towers Plaintiffs is considered submitted as of that date. Various supplemental letter briefs were received by the Court through October 30, 1992 and October 2, 1992 on Global Motions I and II, respectively, and the Global Motions are considered submitted as of those dates.
On Global Motion I, the Moving Defendants seek summary judgment dismissing most of the Plaintiffs' federal securities claims on the ground that the claims are untimely under the applicable statutes of limitations. The individual complaints allege claims under either § 10(b) of the Securities Exchange Act of 1934 ("1934 Act"), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, or § 12(2) of the 1933 Act, 15 U.S.C. § 771 (2), or both. For the reasons set forth below, Global Motion I is granted in part and denied in part.
I. The Statute of Limitations for the § 12(2) Claims
Section 13 of the 1933 Act provides that:
No action shall be maintained to enforce any liability created under section 77k or 771(2) [12(2)] of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence. . . . In no event shall any such action be brought to enforce a liability created . . . under section 771(2) of this title more than three years after the sale.
"The three-year time limit in section 13 is an absolute outer limit." Bresson v. Thomson McKinnon Sec., Inc., 641 F. Supp. 338, 343 (S.D.N.Y. 1986). Moreover, because compliance with § 13 is an essential ingredient of a § 12(2) claim, see Morin v. Trupin, 747 F. Supp. 1051, 1063 (S.D.N.Y. 1990) ("Morin I ") (quoting Bresson, 641 F. Supp. at 343), a complaint asserting such a claim must set forth:
(1) the time and circumstances of the discovery of the fraudulent statement;
(2) the reasons why it was not discovered earlier (if more than one year has lapsed since the making of the fraudulent statement); and
(3) the diligent efforts which plaintiff undertook in making or seeking such discovery.
Id. ; see Friedman v. Arizona World Nurseries, Ltd. Partnership, 730 F. Supp. 521, 543-44 (S.D.N.Y. 1990).
Failure to comply with these requirements will subject an individual § 12(2) claim to dismissal. The issues concerning the individual discovery dates are set forth below in the § 10(b) discussion.
II. The Statutes of Limitations for the § 10(b) Claims
Before the Supreme Court's decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, U.S. , 111 S. Ct. 2773 (1991), on June 20, 1991, Congress had never seen it fit to legislate a uniform statute of limitations for the implied right of action arising out of § 10(b). Once the Court announced such a limitations period in Lampf, see U.S. at & n.9, 111 S. Ct. at 2782 & n.9, and directed that it be applied retroactively, see Welch v. Cadre Capital, 946 F.2d 185, 187 (2d Cir. 1991) ("Welch II "); Ahmed v. Trupin, 781 F. Supp. 1017, 1021 (S.D.N.Y. 1992), Congress responded by amending the 1934 Act and inserting a new § 27A:
(a) EFFECT ON PENDING CAUSES OF ACTION. -- The limitation period for any private civil action implied under section 10(b) of this Act that was commenced on or before June 19, 1991, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991.
(b) EFFECT ON DISMISSED CAUSES OF ACTION. -- Any private civil action implied under section 10(b) of this Act that was commenced on or before June 19, 1991 --
(1) which was dismissed as time barred subsequent to June 19, 1991, and
(2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991,
shall be reinstated on motion by the plaintiff not later than 60 days after the date of enactment of this section.
Federal Deposit Insurance Corporation Improvement Act of 1991, Pub. L. No. 102-242, § 476, 105 Stat. 2236 (codified at Securities Exchange Act of 1934, § 27A, 15 U.S.C. § 78aa-1).
This action includes cases filed after the Supreme Court's decision in Lampf ; cases filed in the Second Circuit before Lampf, but after the November 8, 1990 decision in Ceres Partners v. GEL Assocs., 918 F.2d 349, 364 (2d Cir. 1990) (adopting uniform limitations period § 10(b) actions); cases filed in the Second Circuit before Ceres Partners ; and cased filed in federal district courts outside the Second Circuit.
Such a state of affairs rarely lends itself to simply stated rules, and the present motions are no exception. Rather, myriad issues must be addressed, including the constitutional validity of § 27A; the applicable statute of limitations for each case and, in certain instances, for each plaintiff; whether the limitations period from some other circuit can be applied here; and at what point various Plaintiffs should have discovered the conduct upon which their claims are based.
A. The § 10(b) Statute of Limitations to be Applied to Claims Filed on or after June 20, 1991
In Lampf, the Supreme Court held that private actions under § 10(b) must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. See U.S. at , 111 S. Ct. at 2781-82. In adopting this uniform federal statute of limitations, the Court borrowed from § 9(e) of the 1934 Act, 15 U.S.C. § 78i(e), which provides:
No action shall be maintained to enforce any liability created under this section, unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation.
See U.S. at n.9, 111 S. Ct. at 2781-82.
The Court also noted that the language used in § 9(e) of the 1934 Act varies from that used in the 1933 Act. See id. While § 13 of the 1933 Act imposes a strict three-year limit from the date of "sale," § 9(e) of the 1934 Act imposes such a limit "after the cause of action accrued". Compare 15 U.S.C. § 77m with id. § 78i(e). To the extent this difference has any substantive effect in an individual case will be determined in applying the statute of limitations below.
The Supreme Court decided Lampf on June 20, 1991. Section 27A is directed at only those cases commenced on or before June 19, 1991. Therefore, § 9(e) limitations period will be applied to the § 10(b) claims in the cases commenced on or after June 20, 1991.
B. Section 27A is Not Unconstitutional
This Court fully considered the question of § 27A's constitutionality based on briefs filed by counsel to most of the parties to this litigation in Rabin v. Fivzar Assocs., 801 F. Supp. 1045, 1051-56 (S.D.N.Y. 1992). Additional materials submitted in this matter shed no further light on the decision there that the statute does not violate principles of separation of powers and due process. See id. at 1056; cf. Litton Industries, Inc. v. Lehman Brothers Kuhn Loeb Inc., 967 F.2d 742, 751 n.6 (2d Cir. 1992).
C. The § 10(b) Limitations Period to be Applied to Claims Filed before June 20, 1991, and on or after November 8, 1990
The statute of limitations for § 10(b) in the Second Circuit required that the case be brought within one year of discovery of the fraud and within three years of the fraud some seven months before Lampf was decided. In Ceres, the Second Circuit concluded that the limitations period found in §§ 9 and 18 of the 1934 Act should apply to implied claims brought under § 10(b), the same period selected by the Supreme Court in Lampf. See Ceres, 918 F.2d at 364. Therefore, all those § 10(b) claims filed on or after November 8, 1990, the date Ceres was decided, will be subject to the uniform one-year/three-year period adopted in Ceres and Lampf. See 15 U.S.C. § 78aa-1; Henley v. Slone, 961 F.2d 23, 24 (2d Cir. 1992).
The Integrated lawsuits originally filed in this Court after November 8, 1990 and therefore bound by the statute of limitations laid down in Ceres are West Palm/Baird (filed February 12, 1991), West Palm/Coleman (filed January 23, 1991), Fillmore/Greene's (filed February 8, 1991), Fillmore/Enviro (filed March 7, 1991), Hunter Publishing (filed April 1, 1991).
D. Determining the Applicable § 10(b) Limitations Periods for Claims Filed in Other Jurisdictions
The other three lawsuits were originally filed elsewhere and then transferred to this Court by the Judicial Panel on Multidistrict Litigation. The complaints were filed in Arizona, Phoenix Division (Research Triangle, filed Jan. 3, 1991), the Central District of California (600 Grant Street/Reagan, filed April 2, 1991), and the Southern District of Ohio, Western Division (Clovine/Standefer, filed April 9, 1991, and Clovine/Ellingson, filed March 14, 1991).
In all three, both the Plaintiffs and the Moving Defendants agree that the fraud occurred more than three years before the Plaintiffs brought suit. Since the alleged fraud occurred when the Plaintiffs were induced to purchase their partnership interests, and since in Research Triangle and Clovine/Standefer the latest Plaintiffs purchased in 1986, claims in all three actions are time-barred under Second Circuit law.
The Clovine/Ellingson Plaintiffs contend that the Court must use the § 10(b) statute of limitations of the district in which the action was filed, on the grounds that the transferor state's jurisdiction is the "jurisdiction" meant by § 27A. The Plaintiffs in the other two partnership actions maintain it would be "inequitable" to apply Second Circuit law to these claims.
The definition of "jurisdiction," however, is not quite as clear cut as the Clovine/Ellingson Plaintiffs make it out to be. Prior to the statute's enactment, the crazy-quilt of statutes of limitations employed in § 10(b) actions was well known. See Ceres, 918 F.2d at 353-60. At the most, § 27A has done nothing more than codify this procedural morass in place.
1. Second Circuit Law Before "Ceres"
Prior to Ceres, courts within the Second Circuit traditionally applied the forum state's most analogous statute of limitations to claims under § 10(b). See Welch v. Cadre Capital, 923 F.2d 989, 993 (2d Cir.) ("Welch I "), vacated and remanded sub nom. Northwest Sav. Bank, PaSa v. Welch, 115 L. Ed. 2d 1048, U.S. , 111 S. Ct. 2882, aff'd, 946 F.2d 185 (2d Cir. 1991); Armstrong v. McAlpin, 699 F.2d 79, 86-87 (2d Cir. 1983). In the Southern District of New York, that statute of limitations is contained in both the State's statute of limitations for common-law fraud actions and its "borrowing statute". See Armstrong, 699 F.2d at 87; Arneil v. Ramsey, 550 F.2d 774, 779 (2d Cir. 1977); Morin v. Trupin, 799 F. Supp. 342, 345 (S.D.N.Y. 1992) ("Morin III ").
In the case of plaintiffs who were residents of New York State at the time of the injury, the former period set forth in N.Y. Civ. Prac. L. &. R. § 213(8) (McKinney 1990 Supp.) applies: The action must be commenced within six years of the commission of the alleged fraud or two years from the time the alleged wrongdoing was, or with reasonable diligence should have been, discovered. See Armstrong, 699 F.2d at 87; Morin III, 799 F. Supp. at 345. In those cases where the plaintiffs were nonresidents at the time the cause of action accrued, N.Y. Civ. Prac. L. & R. § 202 (McKinney 1990) applies.
As this Court recently noted:
Although federal courts look to state law for the applicable limitations period, they look to federal law for guidance as to the appropriate accrual and equitable tolling principles. See ITT v. Cornfeld, 619 F.2d 909, 929 (2d Cir. 1980) (period commences to run "when the plaintiff has actual knowledge of the alleged fraud or knowledge of facts which the exercise of reasonable diligence should have led to actual knowledge"); Baskin v. Hawley, 807 F.2d 1120, 1130-31 (2d Cir. 1986).
A plaintiff must bring a § 10(b) action in federal court. Thus, in applying the rule of "the place without the state where the cause of action accrued" a federal court sitting in New York does not automatically turn to state law but rather must look to the statute of limitations that would be applied by the federal district court where the nonresident plaintiff resided at the time of the injury. See Ceres, 918 F.2d at 353; Ahmed v. Trupin, 781 F. Supp. 1017, 1022-23 (S.D.N.Y. 1992).
Morin III, 799 F. Supp. at 347. Therefore, the Court must look to the relevant states for statutes of limitations governing the § 10(b) actions filed before Ceres. In the matter at hand, this applies to the actions filed in Lenox Towers and Southern Inns.
2. Retroactivity as Determined by Chevron
Although the Ceres court explicitly refused to address the retroactive effect of its ruling, see Ceres, 918 F.2d at 364, the Second Circuit resolved that question in Welch I, 923 F.2d at 993-95. Welch I established that the retroactive application of Ceres must be determined on a case-by-case basis according to a three-part test laid out in Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). Only then should the court return to the Second Circuit's prior practice of applying the most analogous state statute of limitations. The three parts of the test hinge on 1) whether the new rule was "clearly foreshadowed" at the time the relevant complaint were filed, 2) whether retroactive application of the statute of limitations would serve the purpose of the new rule, and 3) whether the equities weighed in favor of nonretroactivity. See Chevron, 404 U.S. at 106-7; Welch I, 923 F.2d at 993-95; Rabin, 801 F. Supp. at 1049.
The argument offered by the Plaintiffs in Research Triangle and Clovine/Standefer -- that this Court's failure to apply the law of the transferor state would work harsh inequities -- is only one part of the test, not a determination of the whole. Whether retroactive application of the law was foreseeable and whether it serves the purpose of the law is more significant here: "As for the third Chevron factor, the courts have held that the retroactive application of Ceres does not produce substantial inequitable results when the statute of limitations is unchanged by retroactive application," as it is for cases filed after November 8, 1990. In re Chaus Sec. Litig., 801 F. Supp. 1257, 1269 (S.D.N.Y. 1992) (applying Ceres statute of limitations to case transferred pursuant to 28 U.S.C. § 1407). The law of the jurisdiction is Second Circuit law.
The second prong of the Chevron test -- that retroactive application will further the new rule -- does warrant retrospective application under Ceres. In the context of a transferred class action, the traditional method of looking to the state of each nonresident class plaintiff to determine whether each claim would be time-barred could result in the claims of some plaintiffs being time-barred while the claims of others would not be. This result would be at least as inequitable as the result envisioned by the Plaintiffs if Ceres were applied to their claims in Clovine/Standefer and Research Triangle. See Chaus, 801 F. Supp. at 1269.
The uniform application of Ceres in this context does further the rule because here the rule is not, strictly speaking, retroactive. All four Complaints were filed in their respective jurisdictions after November 8, 1990: Research Triangle on January 3, 1991; Clovine/Ellingson on March 14, 1991, Clovine/Standefer on April 9, 1991; and 600 Grant Street/Reagan on April 12, 1991. If the Plaintiffs could avoid the application of Second Circuit law merely by filing their claim in an inconvenient forum which had a longer statute of limitations, and then take that statute of limitations with them when their case was transferred, they could make an end run around the rule laid down by Ceres. Although this is now impossible for all claims filed after June 19, 1991, due to the Supreme Court's decision in Lampf, the eight-month lag between Ceres and Lampf creates an apparent window of opportunity which the Plaintiffs should not be allowed to exploit.
Finally, the first prong of the Chevron test -- that the rule changes the practice in this Circuit -- is met for cases filed here, and for cases transferred here but not transferred as part of MDL litigation. The precedents for MDL cases are not as clear-cut as for cases filed under other statutes, because the special concerns inherent in MDL litigation have been reflected in the case law.
3. Multidistrict Litigation
The multidistrict transfer statute, 28 U.S.C. § 1407, attempts to provide for the "just and efficient conduct" of related cases scattered throughout the federal courts by consolidating such cases before one court. See 18 U.S.C. § 1407(a). One of the key means by which this goal is achieved is through the establishment of a single body of law for the unified proceedings. See generally In re Korean Air Lines Disaster, 265 U.S. App. D.C. 39, 829 F.2d 1171, 1176-84 (D.C. Cir. 1987) (Ginsburg, J., concurring), aff'd on other grounds sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 104 L. Ed. 2d 113, 109 S. Ct. 1676 (1989); see also In re Pan American Corp., 950 F.2d 839, 847 (2d Cir. 1991) (adopting Korean Air Lines). Without such a mechanism, "the conduct of multidistrict litigation, which is invariably time consuming as it is, will grind to a standstill while transferee judges read separate briefs, each based on the case law of a transferor circuit, on a single issue of federal law." Pan Am, 950 F.2d at 847. In most cases such an effort should be futile, since it must be presumed that the Supreme Court will eventually resolve any pertinent split among the circuits and set down a uniform federal law. See, e.g., Chan, 490 U.S. at 124-25, 135 (resolving the split at issue in Korean Airlines).
The Clovine/Ellingson Plaintiffs argue that under Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964),
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), and Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), this Court must apply the statute of limitations that each transferor court would have applied to these actions. See Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 406 (2d Cir. 1975); H.L. Green Co. v. MacMahon, 312 F.2d 650, 653 (2d Cir. 1962), cert. denied, 372 U.S. 928, 83 S. Ct. 876, 9 L. Ed. 2d 736 (1963); In re Plumbing Fixtures Litig., 342 F. Supp. 756, 758 (J.P.M.L. 1972) (per curiam).
Although this argument finds support within Erie's progeny, see Walker v. Armco Steel Corp., 446 U.S. 740, 752-53, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980); Guaranty Trust Co. v. York, 326 U.S. 99, 110-12, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945), it ignores the fundamental difference between those cases and the present litigation, just as the Clovine/Ellingson Plaintiffs' reliance on New York law ignores the fact that this cause of action can only be tried in a federal court. Jurisdiction here is based on a federal question. As such, Erie's familiar concerns over state law are inapplicable here. See West v. Conrail, 481 U.S. 35, 39, 95 L. Ed. 2d 32, 107 S. Ct. 1538 n.4 (1987); Isaac v. Life Inv. Ins. Co., 749 F. Supp. 855, 863 (E.D. Tenn. 1990); see also Richard L. Marcus, Conflicts Among the Circuits and Transfers Within the Federal Judicial System, 93 Yale L.J. 677, 679 (1984) ("Erie is simply irrelevant where federal claims are involved").
The reasoning in the cases relied on by the Clovine/Ellingson Plaintiffs in making this argument has been subsequently rejected. The line of authority holding that a transferee court should apply the law of the transferor court in federal claims transferred pursuant to § 1407 finds its genesis in Plumbing Fixtures, 342 F. Supp. at 758 ("It is clear that the substantive law of the transferor forum will apply after transfer," citing Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964)). This language has, however, been expressly withdrawn by the Multidistrict Panel:
Any suggestion to the contrary in dictum found in Plumbing Fixtures is withdrawn. Indeed, the dictum in Plumbing Fixtures is itself questionable given that Plumbing Fixtures was a litigation arising under the federal courts' federal question jurisdiction and Van Dusen, on which the Panel relied in support of its dictum, was an action arising under the federal courts' diversity jurisdiction.
In re General Motors Class E Stock Buyout Sec. Litig., 696 F. Supp. 1546, 1547 n.1 (J.P.M.L. 1988). The other cases these Plaintiffs have cited in support of this argument principally rely on Plumbing Fixtures. See, e.g., Berry Petroleum, 518 F.2d at 408 n.7; In re Haven Industries, Inc., 462 F. Supp. 172, 179 (S.D.N.Y. 1978). To this extent, then, the reasoning of these cases is now called into question.
In its place, the federal courts have adopted two considerations for cases transferred under 28 U.S.C. § 1407: first, that statutes of limitations are either federal or procedural in nature, and second, that the circuits do not need to defer to other circuits' interpretation of federal law if it conflicts with their own.
In the MDL context, the statute of limitations may not be a matter of state law at all, and as such, the limitation period should be decided by a federal transferee court in accordance with its own interpretation of federal law "without deference to any contrary interpretation of a transferor circuit." In re General Dev. Corp. Bond Litig., 800 F. Supp. 1143, 1146 (S.D.N.Y. 1992). Since "the choice of a limitations period for a federal cause of action is itself a question of federal law," Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 159 n. 13, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), the limitations periods for federal causes of action, from wherever derived, are not matters of state law in any meaningful sense and should not, in the transfer context, implicate Van Dusen principles. As the court in General Development noted:
It seems . . . clear that the best reading of the F.D.I.C.'s Improvement Act's phrase "laws applicable in the jurisdiction," as it applies to a complaint . . . filed before the date of the decision in Lampf and transferred here, is that the jurisdiction referred to must be the one in which the federal transferee court sits . . . i.e., the one- and three- year period set forth in Ceres Partners."
Even if the choice of the limitations period is not itself a question of federal law, there is another reason why a federal limitations period should govern. Federal courts have viewed questions pertaining to the statutes of limitations for federal securities claims as procedural, not substantive, matters, and they are therefore, subject to the federal law of the transferee court. See, e.g., Singer v. Olympia Brewing Co., 878 F.2d 596, 599 (2d Cir. 1989); Duke v. Touche Ross & Co., 765 F. Supp. 69, 73 (S.D.N.Y. 1991).
In short, the Plaintiffs have presented no compelling reason to require the rejection of the holdings of Pan Am and Korean Air Lines. The Second Circuit's rules for determining which statute of limitations to apply to the individual § 10(b) claims therefore govern. See Pan Am, 950 F.2d at 847; Korean Air Lines, 1175-76.
Despite the expectation of some supporters of section 27A that it would routinely apply a more generous state or federal common law limitations period to all suits pending on June 19, 1991, we see no escape from the clear statutory language requiring the application of "the laws applicable in the jurisdiction."
Henley v. Slone, 961 F.2d 23, 25 (2d Cir. 1992) (refusing to apply common-law fraud statute of limitations to securities fraud claim brought in Connecticut).
Finally, the Clovine/Ellingson Plaintiffs contend that a general choice of law clause in their limited partnership materials mandates that New York's six-year statute of limitations for common-law fraud should apply. The clause in question reads:
This Agreement, the Notes, any amendments or replacements hereof and thereof, and the legality, validity and performance of the terms hereof and thereof, shall be governed by and construed in all respects in accordance with the internal laws of the State of New York . . . applicable to contracts, transactions and obligations entered into and to be performed in New York.
Pls.' Mem. in Opp. Ex. A at 3.
This contention fails for two reasons. First, the clause is a generic choice of law clause governing the interpretation of contracts. Such clauses generally do not apply to statutes of limitations; indeed, this clause is silent as to the issue. Absent an express term, the clause does not alter the federal law applicable to this federal claim. See Des Brisay v. Goldfield Corp., 637 F.2d 680, 682 (9th Cir. 1981); Gatto v. Meridian Medical Assocs., Inc., No. Civ. A 87-5076 (JCL), 1989 WL 23125 (D.N.J. Feb. 9, 1989).
Second, if the New York choice of law clause does apply, it would have to be read as requiring the application of the law of a federal court sitting in New York. Section 27 of the 1934 Act grants federal courts with exclusive jurisdiction of federal securities claims. See Ceres, 918 F.2d at 353. A plaintiff must begin a § 10(b) action in federal court. A federal court sitting in New York cannot automatically turn to state law but must first look to the statute of limitations that would be applied by the federal district court in the state where the plaintiff brought his § 10(b) action. Therefore, Second Circuit, not New York, law would apply. See id. ; Ahmed, 781 F. Supp. at 1022; Marlow v. Gold, [1991 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 96,112 (S.D.N.Y. 1991).
F. Determining When Plaintiffs Were Placed on Inquiry Notice
In the Second Circuit, the statute of limitations for securities fraud claims begins to run when the plaintiff has actual knowledge of the alleged fraud or when the plaintiff is placed on inquiry notice, to wit, when the plaintiff has "knowledge of facts which in the exercise of reasonable diligence should have led to actual knowledge." Phillips v. Levie, 593 F.2d 459, 462 (2d Cir. 1979) (quoting Stull v. Bayard, 561 F.2d 429, 432 (2d Cir. 1977), emphasis added).
Thus, the statute is not tolled for a plaintiff's "leisurely discovery of the full details of the alleged scheme." Klein v. Bower, 421 F.2d 338, 343 (2d Cir. 1970). Instead, the period runs from the time at which a plaintiff "should have discovered the general fraudulent scheme." Robertson v. Seidman & Seidman, 609 F.2d 583, 587 (2d Cir. 1979) (quoting Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2d Cir. 1975)).
Kronfeld v. Advest, Inc., 675 F. Supp. 1449, 1458 (S.D.N.Y. 1987); accord Arneil, 550 F.2d at 780.
The Second Circuit has held that the test determining whether a plaintiff was placed on inquiry notice is "objective" in nature.
The means of knowledge are the same thing in effect as knowledge itself. Where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of that fraud will be imputed to him. This rule is fully applicable in cases . . . which involve claims of securities fraud.
To satisfy this test, the knowledge of the alleged fraud imputed to a plaintiff must rise to the level of the probable and not merely of the possible. When inquiry notice is asserted by a defendant as the basis for a summary judgment motion, as is the case here, the defendant has the burden of showing that no genuine issue of material fact exists as to whether the plaintiff, exercising reasonable diligence, would have discovered the fraudulent scheme by the dates identified by the defendant. See Kronfeld, 675 F. Supp. at 1458. The defendant also must establish that the circumstances in question suggested to the plaintiff the probability that he allegedly had been defrauded and not the mere possibility of the alleged fraud to trigger inquiry notice and start the running of the statute of limitations period. See Armstrong, 699 F.2d at 88; see also Zola v. Gordon, 685 F. Supp. 354, 367 n.14 (S.D.N.Y. 1988) ("Zola I ") (rejecting as "incorrect" the proposition in Klein, 470 F.2d at 1347, that inquiry notice is triggered when the imputed knowledge is of the possibility of fraud).
2. Deciding Motions for Summary Judgment Based on Inquiry Notice
This Court has noted the care with which a motion for summary judgment based on an assertion of inquiry notice must be decided, because the question of whether a plaintiff exercised reasonable diligence is usually a question of fact for the jury to decide. See Intre Sport, Ltd. v. Kidder, Peabody & Co., 625 F. Supp. 1303, 1310 (S.D.N.Y. 1985), aff'd without opinion, 795 F.2d 1004 (2d Cir. 1986), vacated on other grounds, 482 U.S. 922 (1987). As the Second Circuit stated in Robertson,
issues of due diligence and constructive knowledge depend on inferences drawn from the facts of each particular case -- similar to the type of inferences that must be drawn in determining intent and good faith, [and] when conflicting inferences can be drawn from the facts, . . . summary judgment is inappropriate.
609 F.2d at 591. In light of these considerations, this Court has concluded it is only in "extreme circumstances" that summary judgment is appropriate when the defendants assert that the action was untimely commenced because inquiry notice was triggered more than a year before the action was brought by the plaintiff. Freschi v. Grand Coal Venture, 583 F. Supp. 780, 785 (S.D.N.Y. 1984).
These circumstances do obtain when a court readily can impute knowledge of a probable fraud to the plaintiff from the face of the documents and facts in evidence supporting the motion for summary judgment without having to assume the role of the jury and undertake a detailed deductive analysis of the factual record to justify that imputation of such knowledge to the plaintiff. Thus, in Borden, Inc. v. Spoor Behrins Campbell & Young, Inc., 778 F. Supp. 695, 700 (S.D.N.Y. 1991), Judge Conner stated that,
while defendants spend an inordinate amount of time in their papers trying to prove the essentially factual issue of what plaintiff knew and when plaintiff knew it, this Court is reluctant to engage in the type of fact-finding defendants request on a motion for summary judgment.
Cf. Friedman v. Meyers, 482 F.2d 435, 439 (2d Cir. 1973) (summary judgment is "particularly inappropriate" when inferences which the parties sought to have drawn regarding the discovery of the alleged fraud were questions of motive, intent, and subjective feelings and reactions).
Nonetheless, when these circumstances do obtain, the issues of inquiry notice and the discovery of the alleged fraud may be decided by the court as a matter of law and the court "should not be reluctant to grant summary judgment." Hartford Fire Ins. Co. v. Federated Dep't Stores, Inc., 723 F. Supp. 976, 981 (S.D.N.Y. 1989); see In re General Dev. Corp. Bond Litig., 800 F. Supp. 1128, 1136 (S.D.N.Y. 1992) (because the test of inquiry notice is objective, "a court's determination that the information available to a plaintiff in a given instance should (or should not) have given him reason to consider and investigate the probability of fraud is surely warranted in appropriate cases" in the context of a motion to dismiss); Quantum Overseas, N.V. v. Touche Ross & Co., 663 F. Supp 658, 663-64 (S.D.N.Y. 1987) (quoting Rickel v. Levy, 370 F. Supp. 751, 756 (E.D.N.Y. 1974) and Cook v. Avien, Inc., 573 F.2d 685, 697-98 (1st Cir. 1978), that general suspicions and "storm warnings" in financial data trigger inquiry notice upon which summary judgment may be granted); Kronfeld, 675 F. Supp at 1458 ("the cases are legion in which summary judgment has been granted on the ground that the plaintiff should have discovered his cause of action under the securities law before the statute of limitations had run"); Harner v. Prudential Sec. Inc., 785 F. Supp. 626 (E.D. Mich. 1992) ("where . . . the underlying facts are undisputed, even factually-based issues may be decided as a matter of law").
3. Information Triggering Inquiry Notice
The information that triggers inquiry notice of the probability of an alleged securities fraud is any financial, legal, or other data available to the plaintiffs providing them "with sufficient storm warnings to alert a reasonable person to the [probability] that there were either misleading statements or significant omissions involved in the sale of the [securities].
Quantum Overseas, 663 F. Supp. at 664 (quoting Cook, 573 F.2d at 697-98). Such data may come in the form of the letters and other documents provided to limited partners by the partnership, see Bresson, 641 F. Supp. at 341; Farr, 755 F. Supp. at 1225; Miller v. Grigoli, 712 F. Supp. 1087, 1088 (S.D.N.Y. 1989); Hirschler v. GMD Inv. Ltd. Partnership, [1990-1991 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 95,919 (E.D. Va. Mar. 28, 1991); the offering materials themselves, see Marlow v. Gold, [1991 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 96,112, at 90,633-90,635 (S.D.N.Y. June 6, 1991); Landy v. Mitchell Petro. Tech. Corp., 734 F. Supp. 608, 617 (S.D.N.Y. 1990); Kennedy v. Josephthal & Co., 814 F.2d at 798, 802 (1st Cir. 1987); Hirschler, P 95,919, at 99,564; Bender v. Rocky Mountain Drilling Assocs., 648 F. Supp. 330, 334-35 (D.D.C. 1986); and public disclosures in the media about the financial condition of the defendant and other lawsuits alleging fraud committed by the defendant, see Arneil, 550 F.2d at 781; Zola II, 701 F. Supp. at 70; Korwek v. Hunt, 646 F. Supp. 953, 959 (S.D.N.Y. 1986), aff'd, 827 F.2d 874 (2d Cir. 1987); Bresson, 641 F. Supp. at 345; Gluck v. Amicor, Inc., 487 F. Supp. 608, 613-14 & n.6 (S.D.N.Y. 1980).
The court rejected this position, stating that "as a matter of law plaintiffs would not be entitled to rely on 'reassuring comments' given them after they received constructive knowledge of the fraud." Id. at 366. The court also rejected the plaintiffs' contention that the defendant's continuing failure to disclose material facts which originally had been misrepresented constituted fraudulent concealment sufficient to further toll the statute of limitations:
The suppression of this information simply is irrelevant to plaintiffs' duty to inquire, which was triggered by receipt of the IRS report. See Hupp v. Gray, 500 F.2d 993,] 997 [(7th Cir. 1974)] ("the fact which would have put a reasonable person on notice of the possibility of fraud . . . was concealed"). . . . Plaintiffs present no facts indicating that they undertook any inquiry whatsoever. The court can only reach one conclusion, that plaintiffs remained narcose.
Zola I, 685 F. Supp. at 368 (footnote omitted). See also Farr, 755 F. Supp. at 1228 ("statements of cautious optimism, reiterations of the goal of providing income to investors, and explanations for past poor performance do not rise to the level of affirmative concealment necessary to excuse a reasonable investor from the duty of inquiry presented by the cold numbers contained in the [reports]"). Thus, once placed on inquiry notice, a limited partner cannot avoid the duty to inquire by relying on reassurances and optimistic statements made by the partnership.
4. Inquiry Notice of Integrated's Demise
This Court has previously noted that sophisticated investors legally may be presumed to know of information in the public domain, such as newspapers and magazine articles. See Hartford Fire Ins., 723 F. Supp. at 976. In Hartford, the plaintiff bondholders claimed that Federated had committed a material omission by failing to disclose the risk that Federated would be the subject of a leveraged buyout and the adverse impact that such a buyout would have on the subject debt instruments. See id. at 981-83, 987.
On the defendants' motion for summary judgment, this Court held that the alleged omissions were not material, and dismissed the plaintiffs' §§ 10(b) and 12(2) claims. See id. at 990. This disposition followed from the fact that the disclosure of the omitted information would not have affected the "total mix" of available information because plaintiffs already should have known of such matters from general publicity accorded Federated in the media. See id. at 988. There, over sixty newspaper articles and financial reports in the general press and financial community had identified Federated as an "attractive" takeover candidate and had outlined the negative effect of takeovers on investment grade securities, such as the notes in which plaintiffs subsequently invested. See id. at 987-88 (citing Business Week and The New York Times articles); see also Seibert v. Sperry Rand Corp., 586 F.2d 949, 952 (2d Cir. 1978) (plaintiff shareholders presumed to know information in public domain); Goldberger v. Baker, 442 F. Supp. 659 (S.D.N.Y. 1977) (allegations of material omissions insufficient where omitted information was a "matter of public knowledge that anyone could acquire by reading a newspaper with an Amex listing").
The Moving Defendants assert that the central allegation raised by the Plaintiffs in their various Complaints, which serves as the unifying thread throughout all of the actions, is the allegation that the Plaintiffs relied on the Defendants' misrepresentations and material omissions regarding the financial stability of Integrated. The Moving Defendants assert further that, in light of the extensive publicity surrounding the collapse of Integrated, the Plaintiffs were placed on inquiry notice of this central aspect of their fraud claim from June 1988.
At oral argument, however, the Plaintiffs denied that reliance on Integrated's financial condition to secure the financial viability of the various limited partnerships is a key unifying feature and one of the common elements of the alleged fraud perpetrated by the Defendants. Rather it was asserted that the only commonality among these cases is that "most of the defendants are Integrated or Integrated-related entities or elements." Tr. at 34. Thus, there are several unique elements of the fraud that relates to Integrated:
It is different for each partnership. . . . Integrated is there because we allege control in some cases, we allege guarantees in some cases, but in each case there is a specific fraud which is unique to that partnership. Or there might be a group of partnerships that have a specific fraud that we are focusing on now.
The Plaintiffs allege "until [they] were advised that the units were not sold out, there was no damage," and contend from this claim that, because only then was each Partnership faced with the need to borrow money to cover the shortfall, "Integrated is not necessarily an integral part of that fraud or the damage." Tr. at 35. The Plaintiffs derive, as a final conclusion from this analysis, the proposition that "until the plaintiffs, the investors, were on notice of the shortfall, they were not on notice of any fraud." Id.
Despite the Plaintiffs' blanket denial of their reliance on Integrated's financial condition in deciding to invest in these Partnerships, the final determination of this issue turns on what the Plaintiffs actually pleaded in their various Complaints regarding the Defendants' allegedly fraudulent scheme. Thus, to the extent that the Plaintiffs allege in their Complaints that the fraud committed by the various limited partnerships was, in whole or in part, tied to misrepresentations or omissions about the financial condition of Integrated, the media reports regarding the financial demise of Integrated placed the Plaintiffs on inquiry notice about the probability the alleged fraud of caused by investing in these Partnerships out of reliance on the financial condition of Integrated and the assumption that Integrated would be in a position to finance any shortfall caused by undersubscription of the offerings.
G. Pleading Compliance with the Statute of Limitations
This Court has directed that plaintiffs asserting securities fraud claims must, inter alia, plead with specificity the date of purchase of the securities at issue. See Morin I, 747 F. Supp. at 1062; Intre Sport, 625 F. Supp. at 1310. "Failure to plead compliance with the statute of limitations requires dismissal without prejudice to replead." Chaus, 801 F. Supp. at 1269; accord Ingenito v. Bermec Corp., 441 F. Supp. 525, 552 (S.D.N.Y. 1977).