Kux-Kardos v. Vimpelcom, Ltd. et al

Filing 155

ORDER denying without prejudice 132 Motion for Judgment on the Pleadings. Accordingly, Defendants' motion for judgment on the pleadings is DENIED without prejudice and Plaintiff Westway's second amended complaint is due April 14, 2020. This terminated ECF No. 132. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/31/2020) (va)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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3/31/20

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1:15-cv-08672 (ALC)
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ORDER
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ANDREW L. CARTER, JR., United States District: Judge:
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On September 17, 2019, I granted in part and denied in part Defendants’ motion to dismiss. See
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IN RE VEON LTD. SECURITIES
LITIGATION,

In re Veon Ltd. Sec. Litig., No. 15-cv-08672 (ALC), 2017 WL 4162342 (S.D.N.Y. Sept. 19,

2017). On December 3, 2018, Defendants filed a letter requesting a pre-motion conference in
anticipation of their proposed motion for judgment on the pleadings under Rule 12(c). (ECF No.
125). On the same day, Westway requested a pre-motion conference in anticipation of its
proposed motion for leave to file a Second Amended Complaint, which would add three new
named plaintiffs. (ECF No. 126). The parties opposed one another’s requests (ECF Nos. 127,
128).
The Court denied both requests for a pre-motion conference and set a briefing schedule.
On February 9, 2018, VEON answered the amended complaint, (ECF No. 87), and on May 17,
2019, VEON filed its instant motion for judgment on the pleadings. (ECF No. 132). Defendants
argued that the Court’s September 2019 Order altered the class period to only those investors
who purchased shares in VEON between June 30, 2011 and November 3, 2015 and held those
shares until at least March 12, 2014. Additionally, the Order provided that Defendants’ earliest
actionable alleged misstatements occurred in June 2011, before Lead Plaintiff Westway
purchased VEON ADRs. Accordingly, Defendants argued, Westway could not have been injured
as a result of VEON’s misstatements, and thus, lacks standing to bring this suit as Lead Plaintiff.

In its opposition brief, Westway does not dispute that the Order found the first actionable

misstatement to have occurred in June 2011, however, Westway argues that Defendants made
actionable omissions earlier, and thus, the Court’s Order did not constrain the Class Period as
VEON asserts. Specifically, Westway asserts that prior to June 2011, Defendants had a duty to
disclose information about its knowing lack of adequate Company controls to the public, but
failed to, leading to actionable omissions, sufficient for an Article III standing injury. (ECF No.
138).
As Defendants correctly note, Westway did not allege these omissions or a duty to
disclose in its first amended complaint. (ECF No. 140). Raising arguments based on allegations
not alleged in the operative complaint is highly disfavored. However, in the interest of deciding
this case on the merits, I think it appropriate to allow Plaintiff Westway the opportunity to amend
its complaint to add these omissions allegations.
Accordingly, Defendants’ motion for judgment on the pleadings is DENIED without
prejudice and Plaintiff Westway’s second amended complaint is due April 14, 2020. This
terminates ECF No. 132.

SO ORDERED.
Dated: March 31, 2020

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New York, New York

ANDREW L. CARTER, JR.
United States District Judge

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