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Monroe County Emples.' Ret. Sys. v. YPF Sociedad Anonima

United States District Court, S.D. New York

October 8, 2013

MONROE COUNTY EMPLOYEES' RETIREMENT SYSTEM, Plaintiff, -
v.
- YPF SOCIEDAD ANONIMA, et al., Defendants

For Plaintiffs: David Avi Rosenfeld, Esq., Samuel Howard Rudman, Esq., Mario Alba, Jr., Esq., Avital Orly Malina, Esq., Robbins Geller Rudman & Dowd LLP, Melville, NY.

For YPF Sociedad Anonima, Defendant: Thomas Joseph Hall, Esq., Marcelo Marlow Blackburn, Esq., Chadbourne & Parke LLP, New York, NY.

For Morgan Stanley, Goldman Sachs, and Credit Suisse, Defendants: Jonathan Rosenberg, Esq., Edward Nathaniel Moss, Esq., O'Melveny & Myers LLP, New York, NY.

For Repsol, Defendant: James E. Brandt, Esq., Jason Kolbe, Esq., Christopher Harris, Esq., Latham & Watkins LLP, New York, NY.

For Sebastian Eskenazi and Guillermo Reda, Defendants: Roger A. Cooper, Esq., Mitchell A. Lowenthal, Esq., Cleary Gottlieb Steen & Hamilton LLP, New York, NY.

OPINION

Page 488

OPINION AND ORDER

Shira A. Scheindlin, U.S.D.J.

I. INTRODUCTION

On February 5, 2013, plaintiffs filed a putative Class Action Complaint against defendants alleging violations of the Securities Act of 1933 (" Securities Ace). On May 14, 2013, this Court issued an order Consolidating the Actions, Appointing Lead Plaintiff: and Approving Selection of Lead Counsel. On June 6, 2013, plaintiffs filed a Consolidated Amended Complaint asserting claims under the Securities and Exchange Act of 1934 (" Exchange Act" ) but omitting the original Securities Act claims. On July 22, 2013, plaintiffs requested defendants' consent to file a Second Amended Complaint reasserting the Securities Act claims and adding new class representatives. Defendants opposed the request. An exchange of letter briefs and two court conferences followed.

Plaintiffs argue that the initial complaint tolled the statute of limitations as to putative class members, who may now intervene to reassert any claims that were abandoned by the Consolidated Amended Complaint.[1] However, the Second Circuit has not decided whether American Pipe tolling applies where the initial named plaintiff lacked standing, or where claims are dismissed voluntarily. Given the split of authority on both issues, I conclude that American Pipe tolling is available to the putative class members in this case.

II. TOLLING WHERE INITIAL PLAINTIFF LACKED STANDING

Defendants contend that American Pipe tolling does not apply where the original plaintiff lacked standing. As noted, the issue has not been directly addressed or decided by the Second Circuit.[2] Moreover, authority among the district courts is split.[3] Some courts have applied American Pipe ...


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