In re Merrill Lynch & Co.
In re Merrill Lynch & Co.
Opinion of the Court
DECISION AND ORDER
Defendants Merrill Lynch & Co., Inc. and its wholly-owned subsidiary Merrill Lynch, Pierce, Fenner & Smith Inc. move to dismiss the First Amended Class Action Complaint (“the Amended Complaint”) for, inter alia, (1) failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and (2) failure to plead fraud with particularity, as required by the Private Securities Litigation Reform Act of 1995 (“Reform Act”) (15 U.S.C. § 78u-4(b)) and Rule 9(b) of the Federal Rules of Civil Procedure. Individual defendant Henry Blodget joins the motion.
On July 17, 2003, defendants moved to dismiss the above captioned action as part of a “phased” approach to administering the volumes of complaints filed against them.
Plaintiffs Amended Complaint fails to remedy any of the deficiencies of its original Complaint. The allegations that plaintiff has added in the Amended Complaint are nearly identical to those that this Court deemed futile in rejecting motions for leave to amend made by other plaintiffs.
Moreover, plaintiff has failed in its Amended Complaint to cure the myriad pleading defects of its original Complaint. Thus, the Amended Complaint also merits and is dismissed with prejudice because it fails to meet the essential pleading requirements of Fed.R.Civ.P. 9(b) and the Reform Act.
So Ordered.
. "Defendants” is used collectively to refer to the corporate and individual defendants together throughout this opinion.
. Originally, the phase denominated Phase 1 by the parties consisted of 12 cases. See Notice of Motion of Defendants, dated July 17, 2003. The plaintiffs in the Rhythms Net Connections action, 02 CV 6913, did not oppose the defendants’ motion to dismiss and were dismissed accordingly. See Order Dismissing Rhythms Net Connections, dated October 7, 2003. Nine of the remaining actions were dismissed in two Orders of this Court on October 29, 2003. The action in Focus Twenty Fund, 02 CV 10221, will be treated separately because plaintiffs will file pursuant to Order of the Court, an amended complaint.
. Plaintiffs in 24/7, Interliant, iVillage, Looks-mart and Quokka Sports moved to amend their complaints to add nearly identical allegations as those included in the instant Amended Complaint. Each of those motions was denied as futile. Plaintiffs here had yet to amend their complaint and, as such, were permitted by Fed.R.Civ.P. 15(a) to amend their complaint as a matter of course, without the necessity of obtaining leave of the Court.
Reference
- Full Case Name
- In re MERRILL LYNCH & CO., INC. Research Reports Securities Litigation
- Status
- Published