MLSMK v. JPMorganChase
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8/6/2019 MLSMK v. JPMorganChase
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MLSMK INVESTMENT COMPANY v. JP MORGAN CHASE & CO.
MLSMK INVESTMENT COMPANY, Plaintiff-Appellant,
v.
JP MORGAN CHASE & CO., JP MORGAN CHASE BANK, NA, Defendants-Appellees.
No. 10-3040-cv.
United States Court of Appeals, Second Circuit.
Argued: May 25, 2011.
Final Submission: June 10, 2011.
Decided: July 7, 2011.
HOWARD KLEINHENDLER, Wachtel & Masyr, LLP (Julian D. Schreibman, SaraG. Spiegelman, of counsel), New York, NY, for Plaintiff-Appellant.
PATRICIA M. HYNES, Allen & Overy LLP (Andrew Rhys Davies, Laura R. Hall, ofcounsel), New York, NY, for Defendants-Appellees.
Before: McLAUGHLIN, POOLER, and SACK, Circuit Judges.
SACK, Circuit Judge.
This case arises out of the massive and now infamous Ponzi
scheme1 perpetrated by Bernard L. Madoff, which culminatedabruptly with his arrest in December 2008 but whoseaftershocks continue.
Between October and December 2008, the plaintiff, MLSMKInvestment Company ("MLSMK"), invested $12.8 million with
Madoff's investment company, Bernard L. Madoff Investment Securities("BMIS"). The defendants, JP Morgan Chase & Co. ("JPMC") and JP MorganChase Bank, N.A. ("Chase Bank"), were, respectively, a trading partner forMadoff's apparently legitimate market-making business and the bank withwhich Madoff maintained the account for BMIS. MLSMK lost its $12.8 millioninvestment when, on December 11, 2008, Madoff was arrested and his assetsseized.
MLSMK subsequently filed this lawsuit in the United States District Court forthe Southern District of New York alleging several New York state-law claimsagainst the defendants. It also asserted a federal claim contending that thedefendants had conspired with Madoff to "fleece" his victims, in violation of theRacketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) and 1964(c). In that connection, MLSMK alleges that by late summer2008, the defendants became suspicious of Madoff's business activities andtherefore undertook a "due diligence" investigation into Madoff's activities, and
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business was a thoroughly fraudulent enterprise. Nevertheless, MLSMK asserts,the defendants eager to continue receiving the substantial fees they derivedfrom Madoff's market-making and banking activity continued to trade withand provide banking services to him. MLSMK asserts that by failing to freezeMadoff's accounts, the defendants became liable for conspiracy to violate RICOby aiding and abetting Madoff's breach of fiduciary duty, commercial bad faith,and negligence.
The district court (Barbara S. Jones, Judge) dismissed the plaintiff'scomplaint in its entirety, concluding that the complaint did not adequately pleadany of the claims purportedly contained therein. We have affirmed that court'sdismissal of the plaintiff's state-law claims for aiding and abetting breach of
fiduciary duty, commercial bad faith, and negligence. See MLSMK Inv. Co. v. JPMorgan Chase & Co. ("MLSMK I"), No. 10-3040-cv, 2011 WL 2176152, 2011U.S. App. LEXIS 11425 (2d Cir. June 6, 2011) (summary order). With regard tothe remaining claim brought under RICO, addressing an issue of first impressionin this Court, we conclude that the claim also must be dismissed, because it isbarred by section 107 of the Private Securities Litigation Reform Act (the"PSLRA"), 18 U.S.C. 1964(c). We therefore affirm that portion of the districtcourt's judgment that remains on appeal.
BACKGROUND
The following statement of facts is drawn from the plaintiff's complaint. As isrequired on appeal from a successful motion to dismiss in the district court, weaccept as true all well-pleaded factual allegations in the complaint and draw allinferences in the plaintiff's favor. See Mortimer Off Shore Servs., Ltd. v. Fed.
Republic of Ger., 615 F.3d 97, 114 (2d Cir. 2010), cert. denied, 131 S.Ct.
1502 (2011); see also Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009)(reciting the Supreme Court's guidance in Bell Atl. Corp. v. Twombly, 550 U.S.544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), that we need notcredit legal conclusions couched as factual statements or "threadbare recitals ofthe elements of a cause of action, supported by mere conclusory statements"(alterations and internal quotation marks omitted)).
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