October 16, 2009

No License To Draw Lines

There have been two recent appellate decisions discussing the scope of the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), which pre-empts certain class actions based upon state law that allege a misrepresentation in connection with the purchase or sale of nationally traded securities. The decisions address to what extent the statute requires the dismissal of "claims" as opposed to "actions."

In Proctor v. Vishay Intertechnology Inc., 2009 WL 3260535 (9th Cir. Oct. 9, 2009) the court found that SLUSA only precluded one of the plaintiff's three claims. As to the other two claims, the court (largely following a Third Circuit decision from earlier this year) held that they should not be dismissed but, instead, should be remanded to state court for further proceedings.

But what if the plaintiff does not carefully segregate the claims that may be precluded by SLUSA? In Segal v. Fifth Third Bank, 2009 WL 2958438 (6th Cir. Sept. 17, 2009), the complaint expressly disclaimed that any of its state-law claims were based upon alleged misrepresentations, but the court found that this was just "artful pleading" given the complaint's overall contents. As to the plaintiff's argument that his state-law claims did not "depend upon" any misrepresentations, the court held that even if the misrepresentations were "extraneous" there was no requirement that a misrepresentation be an element of a claim for the claim to be precluded by SLUSA. The court had "no license to draw a line between SLUSA-covered claims that must be dismissed and SLUSA-covered claims that must not be" and dismissed the entire action.

Posted by Lyle Roberts at October 16, 2009 11:39 PM | TrackBack
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