655 Fed.Appx. 13 (2nd Cir. 2016), 15-1879, In re Lehman Brothers Securities & Erisa Litigation

Docket Nº:15-1879
Citation:655 Fed.Appx. 13
Party Name:IN RE LEHMAN BROTHERS SECURITIES AND ERISA LITIGATION,
Attorney:FOR APPELLANT: THOMAS C. GOLDSTEIN, Goldstein & Russell, P.C., Bethesda, MD (Joseph D. Daley, Robbins Geller Rudman & Dowd LLP, San Diego, CA; Amanda M. Frame, Robbins Geller Rudman & Dowd LLP, San Francisco, CA, on the brief). FOR APPELLEE: VICTOR L. HOU (Mitchell A. Lowenthal, Roger A. Cooper, ...
Judge Panel:PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges.
Case Date:July 08, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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655 Fed.Appx. 13 (2nd Cir. 2016)

IN RE LEHMAN BROTHERS SECURITIES AND ERISA LITIGATION,

No. 15-1879

United States Court of Appeals, Second Circuit

July 8, 2016

Editorial Note:

This case was not selected for publication in the Federal Reporter and Not to be Cited as Precedent. (See Federal Rule of Appellate Procedure Rule 32.1)

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

Appeal from the United States District Court for the Southern District of New York. (Kaplan, J.).

FOR APPELLANT: THOMAS C. GOLDSTEIN, Goldstein & Russell, P.C., Bethesda, MD (Joseph D. Daley, Robbins Geller Rudman & Dowd LLP, San Diego, CA; Amanda M. Frame, Robbins Geller Rudman & Dowd LLP, San Francisco, CA, on the brief).

FOR APPELLEE: VICTOR L. HOU (Mitchell A. Lowenthal, Roger A. Cooper, Jared Gerber, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New York, NY.

PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the orders of the District Court are AFFIRMED.

The California Public Employees' Retirement System (" CalPERS" ) appeals from two orders of the United States District Court for the Southern District of New York (Kaplan, J. ), which dismissed certain of CalPERS's claims as time-barred by the three-year statute of repose contained in section 13 of the Securities Act of 1933, 15 U.S.C. § 77m. We assume the parties' familiarity with the underlying facts and the procedural history, which we reference only as necessary to explain our conclusions.

The crux of the appeal is whether the Supreme Court's decision to toll statutes of limitation for putative class members--generally referred to as " American Pipe tolling" after the originating case, American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)--also applies to section 13's statute of repose. We have held previously that American Pipe tolling does not affect the statute of repose embodied in section 13. See

Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013). Undaunted, CalPERS urges us to distinguish this case from IndyMac. We are unpersuaded.

CalPERS argues principally that, unlike in IndyMac, the putative class action was commenced by a named plaintiff with proper standing and, therefore, its claims were actually asserted within...

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