Silliman v. ING , 543 F. App'x 92 ( 2013 )

12-3748-cv
Silliman v. ING
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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 A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
22nd day of November, two thousand thirteen.
Present: ROSEMARY S. POOLER,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________________________
MARSHALL FREIDUS AND EDWARD P. ZEMPRELLI, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
JOSEPH SILLIMAN,
Movant-Appellant,
-v- 12-3748-cv
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.
_____________________________________________________
Appearing for Appellant: Jonathan K. Levine, Girard Gibbs LLP, San Francisco, CA (Daniel
C. Girard, Amanda M. Steiner, on the brief).
Appearing for Appellees: Jared M. Gerber, Cleary Gottlieb Steen & Hamilton LLP, New
York, N.Y. (Mitchell A. Lowenthal, Lewis J. Liman, Boaz S.
Morag, Anthony M. Shults, on the brief), for the ING Defendants-
Appellees; Adam S. Hakki, Shearman & Sterling LLP, New York,
N.Y. (Christopher R. Fenton, on the brief), for the Underwriter
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of New York
(Kaplan, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the orders of said District Court be and it hereby is AFFIRMED.
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,
J.), 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 Systems 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 Silliman’s claims. Id. at 109 (“[O]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
1
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
2
We have considered the rest of Silliman’s arguments and find them to be without merit.
Accordingly, the orders of the district court hereby are AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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).
3