De La Fuente v. DCI Telecommunications, Inc.
De La Fuente v. DCI Telecommunications, Inc.
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED and the case REMANDED for consideration of the issue of attorneys’ fees incurred on appeal.
The plaintiff, represented by appellants, Federman and Sherwood and Holzer and Holzer, brought a securities fraud class action against the defendants under sections 10(b) and 20(a) of the Securities Exchange Act of 1994 and under Rule 10b-5. The defendants moved to dismiss on the basis of, inter alia, a three-year statute of repose and a one-year statute of limitations. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (holding that section 10(b) and Rule 10b-5 suits must be commenced “within one year after the discovery of the facts constituting the violation and within three years after such violation”). In opposition, the plaintiff made no nonfrivolous answer with respect to whether nine of the claims complied with the statute of repose. Accordingly, the district court dismissed these nine claims. It also dismissed three of the four remaining claims as barred by the one-year statute of limitations. The defendants then moved for sanctions pursuant to the Private Securities Litigation Reform Act (PSLRA), see 15 U.S.C. § 78u-4(c), and Fed.R.Civ.P. 11.
In answering this motion for sanctions, the plaintiff marshaled various arguments for why its position with respect to the statute of limitations was nonfrivolous, but
Accordingly, on the facts and arguments before it, the district court correctly treated the nine repose-barred claims as sanctionable under Fed.R.Civ.P. 11(b)(2). See Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 167 (2d Cir. 1999). It also correctly determined that, under the standard we established in Gurary v. Nu-Tech Bio-Med, Inc., 303 F. 3d 212, 223 (2d Cir. 2002), the remaining four nonfrivolous claims were not of the quality necessary to prevent the appellants’ violation of Fed.R.Civ.P. 11(b)(2) from being “substantial” and thus subject to the PSLRA’s presumption of full sanctions, see 15 U.S.C. § 78u-4(c)(3)(A)(ii). The court went on to hold that the presumption of full sanctions was rebutted with regard to appellant Holzer and Holzer due to its precarious financial situation, but that the presumption was unrebutted with regard to appellant Federman and Sherwood. The court, then, sanctioned Holzer and Holzer in the amount of $40,000 and Federman and Sherwood in the amount of $83,116.91.
On appeal from the imposition of sanctions,
The appellants also argue that the nine repose-barred claims for which they were sanctioned were not claims at all, but were mentioned in the compliant only as “background.” Consequently, they contend, sanctions based on them were unwarranted. But this argument was also raised far too late. It surfaced only after sanctions had been imposed and apportioned when the appellants sought to stay the sanctions order. The district court quite correctly dismissed this argument
We have considered all of the appellants’ arguments and, finding them to be without merit, AFFIRM the decision of the district court. Pursuant to the defendants’ request, we REMAND the case to the district court to determine whether, with regard to appellant Federman & Sherwood, the PSLRA’s presumption of full sanctions encompasses attorneys’ fees incurred on appeal, see Gurary, 303 F.3d at 225-26 & n. 6 (discussing the issue in dicta), and, if it does, the amount of such fees.
. Since a stipulation was reached between the appellants and defendants Schnitzer & Kondub, Richard S. Kondub, and Ross J. Schnitzer, this appeal is limited to defendants-appellees DCI Telecommunications, Inc., Russell B. Hintz, Larry Shatsoff, John Adams, and Joseph J. Murphey.
Reference
- Full Case Name
- Ernie DE LA FUENTE, on behalf of himself and others similarly situated, Federman & Sherwood, Holzer & Holzer v. DCI TELECOMMUNICATIONS, INC., Russell B. Hintz, Larry Shatsoff, John Adams, Joseph J. Murphey, Schnitzer & Kondub, Richard S. Kondub, Ross J. Schnitzer
- Cited By
- 1 case
- Status
- Published