The opinion of the court was delivered by: GEORGE W. LINDBERG
Defendant, Binger, Caminiti & Iatarola (BC&I), has moved for dismissal of the claims made against BC&I in plaintiffs' second amended complaint. This complaint is in six counts. Plaintiffs have withdrawn the claim in Count VI as to BC&I, and have stated that BC&I was inadvertently included in the claim made in Count IV. Therefore, the motion need only be addressed with respect to Counts I, II, III, and V of the second amended complaint.
In Count I of the second amended complaint, plaintiffs allege that BC&I violated Section 10(b) of the Securities Exchange Act of 1934. 15 USC § 78j(b); 17 CFR § 240.10b-5. BC&I contends that this count should be dismissed because, inter alia, it is barred by the applicable statute of limitations.
The United States Supreme Court has stated:
Litigation instituted pursuant to § 10(b) and Rule 10b-5 . . . must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.
Lampf, Pleva, Lipkind, Prupis & Petigrow v Gilbertson, 115 L. Ed. 2d 321, 111 S. Ct. 2773, 2782 (1991). With respect to the three-year period of repose it is therefore necessary to know when the alleged violation occurred.
The "violation" of 10(b) and Rule 10b-5 charged in the Complaint occurred, at the earliest, when the defendants refused to return the investors['] money, as they had promised, on or after March 15, 1989.
This, however, is based upon an incorrect view of what constitutes a Rule 10b-5 violation. Rule 10b-5 states:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
17 CFR § 240.10b-5. Count I's allegations with respect to Rule 10b-5 are that defendants made misrepresentations and/or omissions in violation of the Rule. The refusal of defendants "to return the investors['] money, as they had promised" then was not the violation alleged; only the misrepresentations and/or omissions constituted the violation alleged. This view of what constitutes a Rule 10b-5 violation is supported by the Supreme Court's Lampf case, in which the court said:
As there is no dispute that the earliest of plaintiff-respondents complaints was filed more than three years after petitioner's alleged misrepresentations, plaintiff-respondents claims were untimely.
Lampf, Pleva, Lipkind, Prupis & Petigrow v Gilbertson, 115 L. Ed. 2d 321, 111 S. Ct. 2773, 2782 (1991) (emphasis added).
Among the allegations of the complaint are the following:
34. . . . . On or about March 15, 1989, the Sassoons [Robert and Saul] wire transferred $ 100,000 from London, ...