Second Circuit Affirms Dismissal Of Securities Fraud Suit Based On Statute of Limitations
In a summary order issued on Wednesday, the Second Circuit Court of Appeals affirmed the dismissal of a securities class action based on the application of the statute of limitations. The Court left open the possibility that plaintiffs would amend their complaint, since the district court order was not with prejudice. City of Pontiac General Employees’ Retirement System v. Capone, Case No. 07-1117-cv (2nd Cir. Nov. 12, 2008).
The complaint in this action, brought against MBIA and six current and former officers, claimed that the company violated Sections 10(b) and 20(a) of the Exchange Act by falsifying the financial statements of the company to avoid a huge loss. Specifically, the complaint alleges that in 1998, MBIA improperly booked a series of transactions as reinsurance agreements and the associated proceeds as income to avoid recording a huge loss. At the time, the company issued press releases about the transactions.
Subsequently, in December 2002, a research report about the company discussed the incorrect accounting treatment and its impact. The company issued a press release stating that the company which issued the report was not independent and intended to profit from it. The release went on to state that MBIA stood by its accounting.
The district court dismissed the action as time barred. The court began by noting that Section 804 the Sarbanes Oxley Act extended the statute of limitations for non-time barred securities fraud cases to two years from discovery and five years from the violation. Discovery for purposes of the two-year period takes place when the plaintiff obtains actual knowledge of facts giving rise to the action or notice of the facts which, in the exercise of reasonable diligence, would have led to actual knowledge. The circumstances which give rise to the duty of inquiry are referred to as “storm warnings.”
Under this standard, the date the statute commences begins depends on how the plaintiff responds to the duty of inquiry. “If the investor begins to investigate when the duty arises, knowledge of the fraud will not be imputed, and the limitations period will not begin to run, until that investor ‘in the exercise of reasonable diligence, should have discovered’ the fraud. … On the other hand, ‘If the investor makes no inquiry once the duty arises, knowledge will be imputed as of the date the duty arose.” (citations omitted).
Here, the court concluded that the plaintiff was put on notice and had a duty of inquiry when the December 2002 research report was issued, because that report directly addressed the financial accounting issues on which the case is based. Although the company issued a press release denying any impropriety after the report was issued, it “did not even specify the 1998 transactions, let alone address the particular concerns raised by” the research report or “identify any steps to relieve those concerns.” A blanket denial is not sufficient to relieve investors of their obligation. In reaching its conclusion, the court distinguished cases where the company issued denials that were “designed to specifically address the concerns raised in'” the report.
Since the complaint was filed more than two years after the research report, it was properly dismissed as time barred, the Circuit Court concluded. Since the district court did not state that the dismissal was with prejudice, the Court of Appeals remanded the case to the district court.
The decision in this case is based on one of the tests used by the circuit courts in applying the two-year prong of the statute of limitations in securities fraud cases. The Supreme Court has been asked to resolve a split among the circuits on this issue as discussed here.