Stoopler v. Direxion Shares ETF Trust et al

Filing 94

MEMORANDUM OPINION AND ORDER; For the aforementioned reasons, defendants' motion to dismiss the third consolidated amended complaint is DENIED. This action is proceeding as a purported class action of purchasers in FAZ and ERY.The PSLRA stay of discovery is lifted. The parties are directed to appear for an initial pretrial conference on March 16, 2012, at 1:00 p.m. The parties should comply with all of Judge Forrest's Individual Practices for initial pretrial conferences.The Clerk of the Court is directed to terminate defendants' motion to dismiss the TAC (Dkt. No. 89). (Signed by Judge Katherine B. Forrest on 3-6-2012) (jp)

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DOCUMENT
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------­ -----­ X

09 Civ. 8011 (KBF)
IN RE DIREXION SHARES ETF TRUST
MEMORANDUM OPINION &
ORDER

----------------------------------X
KATHERINE B. FORREST, District Judge:

On January 27, 2012, this Court dismissed certain claims in
plaintiffs' Second Amended Complaint, including, inter alia,
claims by purchasers in ERY for failure to plead adequately
compliance with the statute of limitations under section 13 of
the Securities Act, 15 U.S.C.

§

77m. 1

In re Direxion ETF Trust,

No. 09 Civ. 8011, 2012 WL 259384, at *8-9 (S.D.N.Y. Jan. 27,
2012).

The Court granted plaintiffs leave to replead their

statute of limitations allegations.

Id. at *9, 17-18.

On

February 10, 2012, plaintiffs filed the Third Consolidated
Amended Class Action Complaint ("TAC").

(Dkt. No. 87.)

Pursuant to the schedule set by the Court, see 2012 WL 259384,
at *18, defendants' motion to dismiss the TAC for plaintiffs'
failure to plead compliance with section 13 was fully briefed on
March I, 2012.

(See Dkt. Nos. 89, 90, 91.)

Defendants' arguments for dismissal are four-fold:

(a) the

all plaintiffs' statute of limitations allegations are
"impermissibly conclusory"i

(b) plaintiffs have failed to file

1 Proper names and defined terms used herein have the same meaning as in the
Court's opinion on defendants' motion to dismiss the SAC. See In re Direxion
ETF Trust, No. 09 Civ. 8011, 2012 WL 259384 (S.D.N.Y. Jan. 27, 2012).

1

new PSLRA certifications with the TACi

(c) claims related to ERY

are barred by the statute of repose (and thus, cannot be saved
by tolling or relation back) because those claims were dismissed
in the SAC, and the TAC was filed three years after ERY was
first bona fide offered to the publici and (d) the TAC
impermissibly includes claims related to funds other than FAZ
and ERY.

(See generally Mem. of Law in Support of Mot. to

Dismiss TAC ("MTD TAC Mem. ")

(Dkt. No. 90).)

Upon due

consideration of each of those arguments, the Court concludes
that none warrant dismissal of the TAC (except to the extent the
TAC includes claims previously dismissed by the Court in its
January 27! 2012 opinion).2
For the reasons set forth below! defendants! motion to
dismiss the TAC is DENIED.
BACKGROUND
The Court!s SOL Decision on the SAC
Familiarity with the facts underlying this action! and its
procedural history! is assumed.

See 2012 WL 259394! at *1-6.

• Defendants argue that the TAC improperly includes claims on behalf of funds
other than FAZ and ERY such that plaintiffs should be required to urefile a
complaint limited to claims relating" to plaintiffs whose claims are properly
part of this action.
(MTD TAC Mem. at 9-10.)
In its opinion on defendants'
motion to dismiss the SAC, the Court granted plaintiffs leave to replead
their compliance with the statute of limitations only.
2012 WL 259384, at
*18. The TAC complied with the Court's directive--and the Court's prior
opinion on defendants' motion to dismiss the SAC leaves no doubt as to what
claims remained in this action. There is no need to expend the Court's and
parties' time and resources in requiring plaintiffs to file a further amended
complaint.

2

The Court recites only those facts below that have particular
relevance to its decision on the instant motion.
The Court previously found that "simple math"

conclusively

established that lead plaintiff Stoopler's FAZ claims were
timely brought--i.e., he commenced his putative class action on
behalf of FAZ purchasers less than one year after public
disclosure of the misrepresentations and omissions that are the
subject of this action.

Id. at *9.

In other words, even if

plaintiffs could have discovered the misrepresentations the
moment Direxion publicly disclosed them in the November 3
Supplement (and there is no allegation or indication that was
the case), Stoopler's claims, brought on September 18, 2009,
fall within section 13's one-year limitations period.

See id.

Thus, the Court allowed Stoopler to proceed, at least at this
time, in a representative capacity for a putative class of FAZ
purchasers--and that the claims of plaintiffs Remmells, Haas,
and Benhken fell within that class by virtue of American Pipe
tolling.

Id.

The Court found that "neither math nor American

Pipe tolling saves plaintiffs Schwack's or Killmon's ERY claims,
however./I

Id.

Accordingly, this opinion addresses whether plaintiffs
Schwack and Killmon, the only plaintiffs who purportedly made
purchases in ERY (TAC ,,352(d)-(f),

(m)-(o)), have adequately

alleged compliance with the one-year limitations period.

3

Schwack and Killmon's SOL Allegations
Schwack alleges that he purchased shares in ERY on April 1,
2009.

(TAC

~

352(d).)

Upon realizing that "he was losing money

on his investment in ERY," although "not understand [ing] why,"
Schwack allegedly "sought legal advice in connection with [that]
10ss11 on November 24,

2009.

(Id.

~

352(e).)

Schwack alleges

that he "did not know that ERY shares were intended to be bought
and sold during the same trading session" before that date and
"made no [prior] inquiry concerning" that fact.

(Id. )

Schwack

then commenced his individual putative class action on January
Id. ~ 352(f).)

13, 2010.

Killmon made his initial purchase in ERY on November 14,
2008, and a second purchase on March 16, 2009.

Id.

~

352 (m) .)

Killmon alleges that prior to defendants' "materially a1ter[ing]
their disclosures with the filing of the April 10, 2009
prospectus,

[he] did not know, and had no reason to know, that

the shares were intended to be bought and sold during the same
trading period .
27, 2010,

. .

"

Killmon alleges that on October

"he sought legal advice in connection with loss on the

investment," and "first learned that ERY shares were intended to
be bought and sold during the same trading period."
~ 352(n).)

(Id.

Before that date, he alleges that he did not make

any inquiry into "whether ERY shares were intended to be bought
and sold during the same trading period."

4

Id.

Killmon joined

in this action with the filing of the SAC on April 8, 2011, but
asserts that his claims relate back to Schwack's putative class
action on behalf of ERY filed January 13, 2010.

Id. , 352{o).)

DISCUSSION
Standard
Section 13 of the Securities Act states,
No action shall be maintained to enforce any liability
created under section 11 or section 12{a) (2) unless
brought within one year after the discovery of the
untrue statement or the omission, or after such
discovery should have been made by the exercise of
reasonable diligence, or, if the action is to enforce
a liability created under section 77l(a) (1) of this
title, unless brought within one year after the
violation upon which it is based.
In no event shall
any such action be brought to enforce a liability
created under section 77k or 77l(a) (1) of this title
more than three years after the security was bona fide
offered to the public, or under section 77l(a) (2) of
this title more than three years after the sale.
15 U.S.C. § 77m.
The Supreme Court's ruling in Merck & Co. v. Reynolds,

--­

U.S. ---, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010), altered the
standard as to the second clause of the statute's first
sentence--i.e., "after such discovery should have been made by
the exercise of reasonable diligence," known as "inquiry
notice.

II

Prior to Merck, the law in this Circuit provided that

"a plaintiff was on 'inquiry notice' when public information
would lead a reasonable investor to investigate the possibility
of fraud."

Pontiac Gen. Emps.' Ret. Sys. v. MBIA, Inc., 637

5

F.3d 169, 173 (2d Cir. 2011).

Merck overruled that analysis,

holding that "the limitations period begins to run only after 'a
reasonably diligent plaintiff would have discovered the facts
,

constituting the violation . .
S.Ct. at 1798).

II

Id.

(quoting Merck, 139

Interpreting that holding, the Second Circuit

has found that "a fact is not deemed 'discovered' until a
reasonably diligent plaintiff would have sufficient information
about that fact to adequately plead it in a complaint.
175. 3

1I

Id. at

Thus, to survive the instant motion to dismiss, plaintiffs

must set forth plausible allegations of their purported
"discoveryll of facts sufficient to plead adequately the Section
11 claim at issue here--and that such claims were brought within
three years of the bona fide offering of the relevant
securities.

See 15 U.S.C.

§

77m.

Facial Plausibility of the ERY Plaintiffs' Statute of
Limitations Allegations
Here, Schwack and Killmon allege that the statute of
limitations triggered when they learned from their respective
attorneys that ERY was meant to be bought and sold in the same
trading period, when they sought legal advice in connection with
Although both Merck and Pontiac addressed the statute of limitations in the
Exchange Act context, and although the language of Exchange Act's and
Securities Act's limitations statutes differ slightly, courts in this
District have applied the new standard promulgated in Merck, and interpreted
in Pontiac, to Securities Act claims. See, e.g., In re-Direxion ETF Trust,
2012 WL 2593984, at *8; In re Wachovia Equity Secs. Litig., 753 F. Supp. 2d
326, 370-72 & n. 39 (S.D.N.Y. 2011); Plumbers & Pipefitters' Local No. 562
Supplemental Plan & Trust v. J.P. Morgan Acceptance Corp. I, No. 08 CV 1713,
2012 WL 601448, at *10-11 (E.D.N.Y. Feb. 23, 2012).
3

6

their alleged ERY-investment losses--Schwack on November 24,
2009, and Killmon on October 27, 2010.

(TAC

~~

352 (e),

(n).)

Both plaintiffs allege that they had no way of knowing--and no
reason to know--that defendants intended ERY to be bought and
sold in the same trading period prior to consulting with their
respective attorneys.

(rd.

~~352(e),

(n).)

The Court finds those allegations in tension with the
Supplements' caution that such instruments "should be utilized
only by sophisticated investors who . . . intend to actively
monitor and manage their investments."

(See, e.g., Terris Decl.

(Dkt. No. 63) Ex. C at 1 (Dec. 9 Supplement) i April 10 Supp. at
1.)

The TAC does not allege, as it cannot, the substance of

plaintiffs' respective discussions with their attorneys.

More

importantly, however, the TAC does not allege why plaintiffs,
presumably "sophisticated investors" as the Prospectuses
cautioned Bear Funds' investors should be, needed their
attorneys (and not their investment advisors or other financial
professionals) to inform them of facts sufficient to state a
section 11 violation related to ERY.

Regardless, given the

facts discussed below in relation to both Direxion's ETFs and
certain ETFs issued by ProShares in which Schwack invest, see
infra, and on the findings in its prior opinion and plaintiffs'
allegations (borderline as they may be), the Court finds that
plaintiffs plead facially plausible compliance with the statute

7

of limitations--at least for purposes of this motion. 4 See
Pontiac Gen. Emps.' Ret. Sys., 637 F.3d at 175.
The Court previously found that the April 10 Supplement
disclosed the "magnitude of the risks" associated with holding
the Bear Funds (including ERY) for longer than a single trading
period.

2012 WL 259384, at *10-11.

Although, the TAC is devoid

of allegations as to when either Schwack or Killmon first
realized they sustained losses on their ERY investment, on the
facts alleged in the TAC, the earliest both factors--i.e.,

their

alleged losses and the disclosures in the April 10 Prospectus-­
could have been before them was April 10, 2009.

Those

disclosures coupled with plaintiffs' realization of their
alleged ERY-investment losses would have provided facts that
would have lead to sufficient information about the daily nature
of the funds to adequately plead a facially plausible section 11
violation.

See Pontiac Gen. Emps.' Ret. Sys., 637 F.3d at 175.

Schwack commenced his putative class action for ERY
purchasers on January 13, 2010, and Killmon joined this action
on April 8, 2010.

Even assuming that the April 10 Prospectus

triggered the statute of limitations, plaintiffs' claims were
timely brought.

See 15 U.S.C.

§

77m.

If upon development of the factual record in this action, facts corne to
light indicating that plaintiffs have not timely brought their claims, the
Court will entertain the appropriate motion at that time.

4

8

Schwack's ProShares Action
Although the Court found above that Schwack's claims were
timely brought, it finds Schwack allegations that he had no way
of knowing--or no reason to know--of the daily nature of ERY
prior to November 24, 2009, not credible.

Nevertheless, as

discussed below, his claims are timely.
As defendants point out, Schwack has filed another action
related to "similar leveraged inverse ETFs"

i.e., similar to

Direxion's Bear Fund ETFs) in September 2008, that suggests
there was publicly-available information as early as June 11,
2009 that leveraged inverse ETFs were only suitable to be held
for a single trading period. s

(See Compl., Schwack v. ProShares

Trust, et al., 10 Civ. 272 (S.D.N.Y.)

(Dkt. No.1)

"ProShares Compl./)i 6 see also MTD TAC Mem. at 4.)

(the
In his

ProShares complaint, Schwack alleged that the Securities and
Exchange Commission ("SEC"), the Financial Industry Regulatory
Authority ("FINRA/), and others issued a series of warnings
relating to leveraged inverse ETFs like those at issue here and
those at issue in Schwack's ProShares action.
Compl. ~~ 19-31, 74-82.)

See ProShares

The earliest of those is a FINRA

warning flare issued June 11, 2009, in which it "cautioned" that
The Court may take judicial notice of pleadings in other actions pursuant to
Fed. R. Evid. 201(b). Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000).

5

6 Schwack's ProShares action has since been consolidated into In re ProShares
Trust Securities Litigation, 09 Civ. 6935 (S.D.N.Y.).
(See Order, Schwack v.
ProShares (Dkt. No. 19) (Apr. 28, 2010).)
­

9

U'inverse and leveraged ETFs . . . typically are unsuitable for
retail investors who plan to hold them for longer than one
trading session, particularly in volatile markets.'"
Compl.
id.

~

~

ProShares

19 (quoting FINRA Regulatory Notice 09-31) i see also

74.)
In the ProShares complaint, Schwack alleges that FINRA

issued a subsequent warning, among others, on July 13, 2009, via
a podcast on its website which added further color to the
original warning--i.e., that Umost leveraged and inverse ETFs
reset each day and are designed to achieve their stated
objective on a daily basis--but with the effects of compounding
over a longer time frame, results differ significantly."
(ProShares Compl.

~

22; see also id.

~

75.)

According to

Schwack, after various warnings for a number of other sources,
the SEC issued a similar warning on August 18, 2009.
see also id.

~~

Id. ~ 28 i

23-27.)

At the earliest, assuming Schwack had already sustained
losses on his ERY investment, Schwack could have been in
possession of information sufficient to plead a facially
plausible section 11 claim relating to Direxion's ETFs as early
as June 11, 2009, but more likely, as of August 18, 2009, after
the lengthy series of warnings.
74; see also id. ~~ 19-31.)

(See ProShares Compl.

~~

19,

Even with those facts and that

assumption in mind, Schwack filed this action on January 13,

10

2010

(TAC

~

352(f})1 well within the one-year limitations period

triggered by the FINRA warning.

See 15 U.S.C.

either the earlier June 111 2009 date

I

§

77m.

Using

Schwack/s claims on

behalf of a putative class of purchasers in ERY were timely
brought.
Defendants argue

I

without pointing to any source

that

I

Schwack l s "alleged 2008 losses in ProShares l1 should have alerted
him to the "allegedly omitted risks more than a year before
January 2010 filing of this and his ProShares complaints.
TAC Mem. at 4.)

ll

the

(MTD

That argument overlooks not only the above­

discussed events that allegedly triggered the statute of
limitations in Schwack/s ProShares action

l

but also two other

key points.
First, it overlooks caselaw which holds that merely
sustaining losses on an investment, without morel is
insufficient to put a potential plaintiff on notice of the facts
that constituted a violation.
F. Supp. 2d
271 2011)

---I

See Valentini v. CitigrouPI Inc'

2011 WL 6780915

1

at *11-12 (S.D.N.Y. Dec.

(applying Merck and Pontiac in the 10(b) context and

finding that alleged losses sustained by the plaintiffs did not
give them adequate information to infer the defendants

I

scienter) .
Second

l

it also ignores the Court/s inability to resolve

fact-intensive issues relating to the statute of limitations on

11

l

a motion to dismiss.

Cf. LC Capital Partners, LP v. Frontier

Ins. Grp., Inc., 318 F.3d 148, 156 (2d Cir. 2003).

That is

precisely what would be required to determine when Schwack
sustained losses on his ProShares ETF investment.

See id.
--- ---

also ProShares Compl., PI.'s Certification (Dkt. No.1).)

(See
There

is no indication on the face of the ProShares complaint or
Schwack's PSLRA certification annexed thereto--or anything else
before the Court--stating precisely when Schwack sustained
losses on his ProShares investment.
Compl.)

(See generally ProShares

Indeed, Schwack's ProShares PSLRA certification simply

provides the dates of Schwack's purchases and sales.
PI.'s PSLRA Cert

ication.)

(Id. at

In any event, defendants do not

argue why that date should trigger the statute of limitations
with respect to Schwack's Direxion's ERY ETF investment, and the
Court declines to credit the conclusory argument that losses
were sustained in 2008 and 2009.

(See MTD TAC Mem. at 4.)

See

LC Capital Partners, LP, 318 F.3d at 156.
Because there is at least one plaintiff--i.e., Schwack-­
whose ERY claims fall within section 13's limitations period,
claims of other ERY purchasers

(~,

Killmon) were tolled by

the statute of limitations and are included in this action.

See

Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756,
38 L.Ed.2d 713 (1974).
The Statute of Repose

12

In a final attempt to rid this action of plaintiffs' ERY
claims, defendants argue that those claims are barred by the
statute of repose.

Specifically, defendants assert that because

the TAC was filed more than three years after ERY was first bona
fide offered to the public, the ERY claims are barred by section
13's statute of repose, and cannot be salvaged by tolling or
relation back.

(TAC MTD Mem. at 5-9.)

The clause of section 13 known as the "statute of repose"
provides:

"In no event shall any such action be brought to

enforce a liability created under section 77k or 771(a} (I) of
this title more than three years after the security was bona
fide offered to the public

"

15 U.S.C.

§

77m.

Courts in

this District have interpreted that proviso to set an absolute
time period within which a plaintiff "must bring his claim or
else the defendant's liability is extinguished."

Footbridge

Ltd. Trust v. Countrywide Fin. Corp., 770 F. Supp. 2d 618,
622-23 (S.D.N.Y. 2011) i accord In re Lehman Bros. Secs. & ERISA
Litig., 799 F. Supp. 2d 258, 310 (S.D.N.Y. 2011)

i

In re IndyMac

Mortgage-Backed Secs. Litig., 793 F. Supp. 2d 637, 642-43
(S.D.N.Y. 2011)

i

In re Lehman Bros. Secs. & ERISA Litig., 800 F.

Supp. 2d 477, 481-83 (S.D.N.Y. 2011).

The "absolute" nature of

the statute of repose has been interpreted such that neither
tolling (American Pipe or otherwise) nor relation back under
Fed. R. Civ. P. 15(c) stops the repose clock.

13

Footbridge Ltd.

Trust, 770 F. Supp. 2d at 624-27; In re Lehman Bros. Secs. &
ERISA Litig., 799 F. Supp. 2d at 310; In re IndyMac Mortgage­
Backed Secs. Litig., 793 F. Supp. 2d at 643; In re Lehman Bros.
Secs. & ERISA Litig., 800 F. Supp. 2d at 482-83.
Simply comparing dates on a calendar, there is no question
that the TAC (filed February 10, 2012) brings claims related to
ERY three-years after those securities were first bona fide
offered to the public (i.e., on November 8, 2008).

But, as

plaintiffs assert, simply using the dates alone "treats the TAC
as if it were the original complaint--rather than the amended
complaint--filed by any of the ERY plaintiffs, effectively
erasing more than two years of litigation."

(PIs.' Mem. of Law

in Opp'n to Defs.' Mot. to Dismiss the TAC ("PIs. Opp'n")
No. 91) at 6.)

(Dkt.

The first pleading to assert claims on behalf of

ERY purchasers was filed on November 23, 2010 (Dkt. No. 46)-­
i.e., within the three-year statute repose (which closed claims
first filed after November 8, 2011).

See 15 U.S.C.

§

77m.

In addition, using dates alone ignores the rule (of which
defendants are clearly aware) that "when a complaint is filed
within the statute of limitations but is subsequently dismissed
without prejudice in an order containing conditions for
reinstatement within a specified period of time, the statute of
limitations is tolled provided that the plaintiff meets those
conditions."

Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir.

14

2005)

(quoted in TAC MTD Mem. at 6).

That is precisely the case

here--i.e., the Court dismissed the ERY claims in the SAC
subject to reinstatement upon adequately alleging compliance
with the statute of limitations.

See 2012 WL 259384, at *9.

Thus, the argument that the ERY claims are barred by the
statute of repose has no place in the Court's analysis of the
timeliness of Schwack's and Killmon's claims.
Failure to File New Certifications
Relying on In re Eaton Vance Corp. Securities Litigation,
219 F.R.D. 38 (D. Mass. 2003), defendants (again) seek to have
plaintiffs dismissed from this action for failure to file new
PSLRA certificates with the TAC.

(TAC MTD Mem. at 9-10; see

also Defs. Mem. in Support of Mot. to Dismiss SAC (Dkt. No. 65)
at 20-21.)

Given the current posture of this action, on the

particular circumstances here, that omission does not require
dismissal.
In re Eaton Vance dismissed the claims of a newly-added
plaintiff who had failed to provide any PSLRA certification with
his complaint.

219 F.R.D. at 42.

named in the TAC is newly-added.
~~ 68-73.)

Here, none of plaintiffs
(Compare TAC

~~

68-73 with SAC

As this Court found in considering this same

argument on defendants' motion to dismiss the SAC, all named
plaintiffs have filed PSLRA certifications (timely or otherwise)
and plaintiffs' counsel's representations at oral argument cured

15

any deficiencies in those certifications.
ETF Trust, 2012 WL 259384, at *12.

In re Direxion Shares

The Court found that

defendants suffered no prejudice from belated filings of PSLRA
certifications, and declined to dismiss the action on those
grounds.

Id.

Although compliance with the PSLRA advances

Congress' "important policy goals," In re Eaton Vance, 219
F.R.D. at 42, which is important in its own right, dismissal for
failure to file new certifications where, as here, the operative
pleading states a facially plausible securities law violation
would defeat the equally-important policy goal of the
"efficiency and economy of litigation," Am. Pipe, 414 U.S. at
553.

See In re Atlas Worldwide Holdings, Inc. Secs. Litig., 324

F. Supp. 2d 474, 500 (S.D.N.Y. 2004)

(finding that requiring "a

class representative [to] file a new certification each time his
attorney makes an amendment to the complaint" "would be a
useless burden"i denying a motion to strike for failure to file
a new PSLRA certification with an amended pleading) .
However, given that the TAC contains new allegations that
are critical to the maintenance of this action, and given that
discovery will commence promptly, all named plaintiffs are
directed to file and serve new PSLRA certifications for the TAC
no later than March 20, 2012.

As the Court previously found

with respect to the SAC certifications, defendants will not

16

suffer prejudice with plaintiffs' filing of PSLRA certifications
for the TAC after they filed the TAC.
The Court finds that Schwack and Killmon have alleged
adequately compliance with the one-year statute of limitations,
and nothing else requires dismissal of those claims.

Purchasers

of ERY are now included in this action.
CONCLUSION
For the aforementioned reasons, defendants' motion to
dismiss the third consolidated amended complaint is DENIED.
This action is proceeding as a purported class action of
purchasers in FAZ and ERY.
The PSLRA stay of discovery is lifted.

The parties are

directed to appear for an initial pretrial conference on March
16, 2012, at 1:00 p.m.

The parties should comply with all of

Judge Forrest's Individual Practices for initial pretrial
conferences.
The Clerk of the Court is directed to terminate defendants'
motion to dismiss the TAC (Dkt. No. 89).

SO ORDERED:
Dated:

New York, New York
March
2012

JL,

KATHERINE B. FORREST

United States District Judge

17