Freidus v. ING Groep, N.V.
Opinion
SUMMARY ORDER
Movant-Appellant Joseph Silliman appeals from the August 16, 2012 and September 14, 2012 orders of the United States District Court for the Southern District of New York (Kaplan, /.), denying Silliman’s request to be appointed lead plaintiff and motion to intervene. At issue in this appeal is whether the district court erred in finding the three-year statute of repose applicable to claims brought under the Securities Act barred Silliman’s requests and motions. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
On June 27, 2013, after Silliman had timely filed his notice of appeal and while it was pending before this panel, this Court decided Police and Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013). Our decision in that case forecloses Silliman’s appeal here. In IndyMac, we explained first that tolling was not available under the statute of repose applicable to Silli-man’s claims. Id. at 109 (“[0]ur conclusion is straightforward: American Pipe’s tolling rule, whether grounded in equitable authority or on Rule 23 [of the Federal Rules of Civil Procedure], does not extend to the statute of repose in Section 13 [of the Securities Act].”). We further held that “the Rule 15(c) [of the Federal Rules of Civil Procedure] ‘relation back’ doctrine does not permit members of a putative class, who are not named parties, to intervene in the class action as named parties in order to revive claims that were dismissed from the class complaint for want of jurisdiction.” Id. at 110. We are not persuaded that Silliman’s claims are so distinct from those in IndyMac that a different result is compelled here. 1
We have considered the rest of Silli-man’s arguments and find them to be without merit. Accordingly, the orders of the district court hereby are AFFIRMED.
. In supplemental briefing, Silliman raises the entirely new argument that under our decision in NECA-IBEW Health and Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012), claims by plaintiffs Marshall Freidus and Ray Ragan conferred class standing, allowing Silliman now to succeed them as putative class representatives even if he would otherwise be barred by the statute of repose from pursuing his own claim independently. We do not entertain this argument because Silliman could have raised it in the district court, or certainly in his initial brief on appeal and failed to do so. See McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005) (declining to address argument first raised in reply brief).
Reference
- Full Case Name
- Marshall FREIDUS and Edward P. Zemprelli, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, Joseph Silliman, Movant-Appellant, v. ING GROEP, N v. ING Financial Holdings Corporation, ING Financial Markets LLC, UBS Securities LLC, Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC, Morgan Stanley & Co. LLC, Banc of America Securities LLC, RBC Capital Markets Corporation, Credit Suisse Securities (USA) LLC, HSBC Securities (USA) Inc., J.P. Morgan Securities Inc., Huib J. Blaisse, Eric F. Boyer De La Giroday, Paul M.L. Frentrop, Alexander H.G. Rinnooy Kan, A.H.J. Risseeuw, Stichting ING Aandelen, J. Hans Van Barneveld, Jan J.M. Veraart, Hans K. Verkoren, Eli P. Leenaars, Tom Regtuijt, Michel J. Tilmant, Cees Maas, Defendants-Appellees, ABN Amro Incorporated, A.G. Edwards & Sons, Inc., Wachovia Corporation, Ernst & Young LLP, Defendants
- Cited By
- 4 cases
- Status
- Unpublished