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Stern v. Legent Clearing LLC

July 28, 2009

PHILLIP L. STERN, RECEIVER FOR ENTERPRISE TRUST CO., PLAINTIFF,
v.
LEGENT CLEARING LLC, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

In March 2008, the U.S. Securities and Exchange Commission filed an action against Enterprise Trust Co. ("Enterprise") and two of its principals. On September 23, 2008, I issued an order authorizing the court-appointed receiver "to bring such lawsuits or other actions, in this proceeding or elsewhere, on behalf of Enterprise and its clients, against others who may have engaged in unlawful conduct or may otherwise be liable to Enterprise or to Enterprise's clients." Thereafter, on February 9, 2009, the receiver filed a seven-count complaint against Legent, alleging liability for Legent's conduct "in connection with Enterprise's trading and fraudulent use of its client's assets to provide collateral for highly speculative trading strategies that were contrary to the instructions of certain of Enterprise's clients, were detrimental to their interests, and which were not fully disclosed to Enterprise's clients." According to the allegations in the complaint, Legent worked with Enterprise to transfer approximately $49 million in customer mutual funds from Advisory Financial Services Corporation ("AFC") to Enterprise's account at Legent. Legent knew that the mutual funds were contained in IRA and 403(b) accounts that could not properly be used for margin, and yet Legent orchestrated the transfer of these individual customer funds into Enterprise's omnibus account to support margin trading. Further, the complaint alleges that Legent enabled the transfer even though it knew that the paperwork signed by the individual account holders did not permit the use of their assets for margin trading.

Legent now moves to dismiss the complaint pursuant to Rule 12(b)(1) on the basis that the receiver lacks standing because the receiver's claims are duplicative of investors' claims in other jurisdictions. Alternatively, Legent moves to dismiss pursuant to Rule 12(b)(6) for failure to state a claim.

I. Standard of Review

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. In ruling on such a motion, I accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To state a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). That said, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what... the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation and citation omitted). The "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

The same standard applies to a motion to dismiss based on standing under Rule 12(b)(1). Freiburger v. Emery Air Charter, Inc., 795 F. Supp. 253, 256-57 (N.D. Ill. 1992) (citations omitted). The plaintiff bears the burden of establishing that it meets the requirements of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

II. Discussion

A. The Receiver Has Standing

In support of its argument that the receiver lacks standing, Legent relies on a "promise" made by the receiver in its response to objections filed by Enterprise clients to the receiver's Proposed Plan for the Allocation of Assets. In that response, the receiver stated:

The Receiver will not pursue any litigation if the Receiver determines that potential litigation is not viable, unlikely to merit the cost associated with pursuit of the claim, or believes that his efforts would be duplicative of any actions that may be brought by government agencies or private litigants.

In approving the Plan, I noted that the amount of funds held back by the receiver in order to fund ongoing investigation and potential litigation against third parties "is not so large as to encourage the Receiver to pursue inappropriate claims which the Receiver correctly defines as litigation which 'is not viable, unlikely to merit the cost associated with pursuit of the claim... or duplicative of any action that may be brought by government agencies or private litigants.'"

Legent is currently party to five separate proceedings brought by former clients of Enterprise, including four arbitrations administered by the Financial Industry Regulatory Authority ("FINRA").*fn1 Legent maintains that the claims asserted in the receiver's complaint are improper because they are entirely duplicative of the claims already being pursued by private claimants in the four arbitrations that were pending against Legent at the time this case was filed.

Legent argues that both the receiver and the private claimant allege that Legent is liable under the same basic factual predicate (the allegedly improper allowance of margin trading using collateral that was either unauthorized or unsuitable), rely on the same or parallel legal theories (failure to prevent and/or aiding and abetting the conduct of Enterprise), and demand substantially overlapping damages (the private claimants allege losses of approximately $9.2 million while the receiver alleges losses of between $2 and $11 million).

First, certain claims asserted by the receiver have not been asserted by individual claimants and are thus not duplicative of those individual actions. Those include the receiver's claims against Legent for violation of the Illinois Consumer Fraud Act (Count II), violation of the Illinois Fiduciary Obligations Act (Count IV), for aiding and ...


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