Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

OTTO v. VARIABLE ANNUITY LIFE INS. CO.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


December 4, 1992

BEVERLY OTTO, Individually and on behalf of all others similarly situated, et al., Plaintiffs,
v.
VARIABLE ANNUITY LIFE INSURANCE COMPANY, et al., Defendants.

The opinion of the court was delivered by: MARVIN E. ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, District Judge:

 Pursuant to § 27A of the Securities Exchange Act of 1934, enacted on December 19, 1991, plaintiff Beverly Otto has filed a motion to reconsider our ruling dated November 8, 1991, seeking reinstatement of her claims brought under § 10(b) of the 1934 Act. In that order, this court held that "those claims by class members who purchased and subsequently withdrew their interest in [defendants'] fixed annuity prior to August 2, 1979, are barred by the three-year limitations period adopted by [the United States Supreme Court in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991)]. Otto v. Variable Annuity Life Ins. Co., 1991 U.S. Dist. LEXIS 67892 (N.D. Ill. Nov. 18, 1991); see also Otto v. Variable Annuity Life Ins. Co., 1991 U.S. Dist. LEXIS 18095 (N.D. Ill. Dec. 18, 1992) (reiterating that reinvestments of interest constitute "purchases" capable of supporting separate and independent violations of § 10(b) and Rule 10b-5). For the reasons set forth below, we deny Otto's motion for reconsideration.

 Section 27A of the 1934 Act provides:

 (a) EFFECT ON PENDING CAUSES OF ACTION.--The limitation period for any private civil action implied under section 10(b) of this Act that was commenced on or before June 19, 1991, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991.

 (b) EFFECT ON DISMISSED CAUSES OF ACTION.--Any private civil action implied under section 10(b) of this act that was commenced on or before June 19, 1991--(1) which was dismissed as time barred subsequent to June 19, 1991, and (2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991, shall be reinstated on motion by the plaintiff not later than 60 days after the date of enactment of this section.

 Federal Deposit Insurance Corporation Improvement Act of 1991, Pub. L. 102-242, 105 Stat. 2387 (1991). The motivating force behind this statutory amendment was to limit the 1-and-3-year limitations period adopted in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991), to prospective application. Under the amendment, this court must look to the state of Seventh Circuit law as it existed on June 19, 1991, one day prior to the decision date in both Lampf and James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2882, 115 L. Ed. 2d 1048 (1991). Ironically, as of June 19, 1991, the Seventh Circuit had already held that the 1-and-3-year limitations period of § 13, 15 U.S.C. § 77m, applies to actions brought under § 10(b) and Rule 10b-5. Short v. Belleville Shoe Manufacturing Co., 908 F.2d 1385, 1389 (7th Cir. 1990), cert. denied, 111 S. Ct. 2887, 115 L. Ed. 2d 1052 (1991); see also Pommer v. Medtest Corp., 961 F.2d 620, 627 (7th Cir. 1992) ("The rule in this circuit on June 19 was the federal period . . . established by Short in 1990."). Accordingly, whether Otto's claims must be reinstated under the new amendment turns on whether Short should be applied retroactively.

 Prior to addressing the retroactivity issue, however, we pause to note that Otto's motion to reconsider has been filed approximately eleven months after the enactment of § 27A. As such, defendants argue that Otto's current motion must be denied as untimely. Pointing to § 27A(b), defendants maintain that Otto's motion should have been brought by February 18, 1992, sixty days after the date of enactment of § 27A. Whether Otto's motion is in fact overdue depends on whether subsection (b) of § 27A applies to this cause rather than subsection (a), i.e., whether her claims were "dismissed" as time barred subsequent to June 19, 1991. Otto attempts to invoke subsection (a), claiming that the impact of our November 18, 1992 order was merely to "limit pending causes of action." This argument is not well taken. That this court construed each "purchase" as supporting a separate and independent cause of action, if not clearly discernable from the November 18, 1991 ruling, was explicitly stated in our order dated December 18, 1991. Otto, 1991 U.S. Dist. LEXIS 18095, at *1 ("later reinvestments of interest constitute "purchases" capable of supporting separate and independent violations of § 10(b) and Rule 10b-5"). Further, that multiple causes of action were embodied in a single count does not alter the fact that those separate causes of action arising prior to August 2, 1979 were in fact "dismissed," as that term is used in § 27A(b) of the 1934 Act. Accordingly, Otto's window to file a motion to reinstate those claims dismissed as a result of our November 18, 1991 order expired on February 18, 1992 and, hence, her motion to reconsider must be denied as untimely.

 In any event, as a substantive matter, Otto cannot prevail on her motion because Short applies retroactively to her claims. Recently, in McCool v. Strata Oil Co., 972 F.2d 1452, 1459 (7th Cir. 1992), the Seventh Circuit for the first time addressed the question of Short's retroactive application. The McCool court found that "the controlling precedent on June 19, 1991 was Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971)," noting that "Chevron Oil requires a case-by-case balancing of three factors to decide whether a new rule will be applied to the parties before the court. McCool, 972 F.2d at 1459. In essence, the Chevron Oil balancing test requires retroactive application of new statutes of limitation unless "the plaintiff can demonstrate reliance on the old limitations period." Id. As this court explained in Lewis v. Hermann, 1992 U.S. Dist. LEXIS 3547, at *3 (N.D. Ill. Mar. 19, 1992):

 The issue of reliance arises as an exception to retroactive application in those rare cases where "a plaintiff learned of a claim within the three-year period, but, relying on existing law providing for a longer limitations period, elected to wait until after the three-year period before filing suit."

 There is no dispute that Otto did not elect to belatedly file suit in reliance on the Illinois blue-sky statute. Indeed, Otto concedes that, under this court's interpretation of Chevron Oil, Short must be applied retroactively. Otto, however, attempts to circumvent this result by urging the court to blindly adopt the "law of the case" as it existed in January of 1990. Otto reasons that because defendants' previously did not assert Short as a bar to plaintiff's claims, defendants are estopped from now relying on the three-year limitation period and are bound by our pre-Short ruling, dated January 19, 1990. We disagree. Section 27A requires this court to determine the state of the law applicable in this jurisdiction on June 19, 1991, "including principles of retroactivity." This analysis, mandated by statute, is unyielding. Otto cannot at once embrace the statute in attempt to avoid the three-year limitations period and, at the same time, disavow its impact based on ill-conceived notions of estoppel.

 At root, Otto has failed to establish reliance in any form. Accordingly, we will apply Short retroactively to the instant case, and Otto's motion to reconsider is denied. It is so ordered.

 MARVIN E. ASPEN

 United States District Judge

 Dated 12/4/92

19921204

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.