Criterium Capital Funds B.V. et al v. Madoff et al

MEMORANDUM OF LAW in Opposition re: 90 MOTION to Dismiss the Amended Consolidated Class Action Complaint., 73 MOTION to Dismiss Notice of Motion to Dismiss the Amended Complaint., 79 MOTION to Dismiss., 101 MOTION to Dismiss., 85 MOTION to Dismiss The Amended Consolidated Class Action Complaint., 66 MOTION to Dismiss the Amended Consolidated Class Action Complaint w/ Prejudice., 98 MOTION to Dismiss for Lack of Jurisdiction.. Document

157 Cited authorities

Ashcroft v. Iqbal
556 U.S. 662 (2009) Cited 260,142 times 281 Legal Analyses
Holding court need not credit "mere conclusory statements" in complaint
Bell Atl. Corp. v. Twombly
550 U.S. 544 (2007) Cited 273,590 times 368 Legal Analyses
Holding that allegations of conduct that are merely consistent with wrongdoing do not state a claim unless "placed in a context that raises a suggestion of" such wrongdoing
Neitzke v. Williams
490 U.S. 319 (1989) Cited 56,955 times
Holding that "an in forma pauperis pro se complaint may only be dismissed as frivolous ... when the petitioner cannot make any claim with a rational or arguable basis in law or in fact"
Lujan v. Defs. of Wildlife
504 U.S. 555 (1992) Cited 28,570 times 141 Legal Analyses
Holding that the elements of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof"
Burger King Corp. v. Rudzewicz
471 U.S. 462 (1985) Cited 17,086 times 46 Legal Analyses
Holding that a defendant has "fair warning" if he purposefully directs his activities at residents of the forum and if the litigation results from alleged injuries arising out of or relating to those activities.
World-Wide Volkswagen Corp. v. Woodson
444 U.S. 286 (1980) Cited 10,957 times 32 Legal Analyses
Holding that an Oklahoma court could not exercise personal jurisdiction over a car retailer when the retailer's only connection to Oklahoma was the fact that a car sold in New York became involved in an accident in Oklahoma
Morrison v. National Australia Bank Ltd.
561 U.S. 247 (2010) Cited 1,490 times 177 Legal Analyses
Holding extraterritorial application of a statute is a merits question, not a question of subject matter jurisdiction
Medtronic, Inc. v. Lohr
518 U.S. 470 (1996) Cited 2,439 times 35 Legal Analyses
Holding that the presence of a state-law damages remedy for violations of FDA requirements does not impose an additional requirement upon medical device manufacturers but "merely provides another reason for manufacturers to comply with . . . federal law"
Int'l Shoe Co. v. Washington
326 U.S. 310 (1945) Cited 22,892 times 110 Legal Analyses
Holding that states may exercise personal jurisdiction over out-of-state defendants with "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’ " (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) )
ATSI Communications, Inc. v. Shaar Fund, Ltd.
493 F.3d 87 (2d Cir. 2007) Cited 3,947 times 6 Legal Analyses
Holding that because "a plaintiff must show . . . a primary violation by the controlled person" in order to "establish a prima facie case of control[-]person liability," a plaintiff who "fails to allege any primary violation . . . cannot establish control[-]person liability"
Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Fed. R. Civ. P. 12 Cited 354,229 times 943 Legal Analyses
Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss
Rule 8 - General Rules of Pleading
Fed. R. Civ. P. 8 Cited 160,289 times 196 Legal Analyses
Holding that "[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . ."
Rule 9 - Pleading Special Matters
Fed. R. Civ. P. 9 Cited 39,551 times 328 Legal Analyses
Requiring that fraud be pleaded with particularity
Section 78j - Manipulative and deceptive devices
15 U.S.C. § 78j Cited 12,638 times 166 Legal Analyses
Granting SEC power to establish rules to further statute forbidding manipulative or deceptive devices in connection with purchase or sale of securities
Section 302 - Personal jurisdiction by acts of non-domiciliaries
N.Y. C.P.L.R. § 302 Cited 4,286 times 5 Legal Analyses
Holding that service may be made "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by ... mailing the summons to the person to be served at his or her last known residence"
Section 78bb - Effect on existing law
15 U.S.C. § 78bb Cited 907 times 30 Legal Analyses
Adopting definition of "covered security" found in paragraphs and of section 18(b) of the Securities Act of 1933
Section 352 - Investigation by attorney-general
N.Y. Gen. Bus. Law § 352 Cited 221 times 9 Legal Analyses
Observing that in such situations "a witness subpoenaed to appear * * * has no constitutional right to * * * counsel" [supra, at 65]
Section 77r - Exemption from State regulation of securities offerings
15 U.S.C. § 77r Cited 203 times 9 Legal Analyses
Recognizing state authority to regulate offerings of securities that are completely intra-state

Criterium Capital Funds B.V. et al v. Madoff et al

157 Cited authorities

Holding court need not credit "mere conclusory statements" in complaint

Holding that allegations of conduct that are merely consistent with wrongdoing do not state a claim unless "placed in a context that raises a suggestion of" such wrongdoing

Holding that "an in forma pauperis pro se complaint may only be dismissed as frivolous ... when the petitioner cannot make any claim with a rational or arguable basis in law or in fact"

Holding that the elements of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof"

Holding that a defendant has "fair warning" if he purposefully directs his activities at residents of the forum and if the litigation results from alleged injuries arising out of or relating to those activities.

Holding that an Oklahoma court could not exercise personal jurisdiction over a car retailer when the retailer's only connection to Oklahoma was the fact that a car sold in New York became involved in an accident in Oklahoma

Holding extraterritorial application of a statute is a merits question, not a question of subject matter jurisdiction

Holding that the presence of a state-law damages remedy for violations of FDA requirements does not impose an additional requirement upon medical device manufacturers but "merely provides another reason for manufacturers to comply with . . . federal law"

Holding that because "a plaintiff must show . . . a primary violation by the controlled person" in order to "establish a prima facie case of control[-]person liability," a plaintiff who "fails to allege any primary violation . . . cannot establish control[-]person liability"

Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

Holding that "[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . ."

Requiring that fraud be pleaded with particularity

Granting SEC power to establish rules to further statute forbidding manipulative or deceptive devices in connection with purchase or sale of securities

Holding that service may be made "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by ... mailing the summons to the person to be served at his or her last known residence"

Adopting definition of "covered security" found in paragraphs and of section 18(b) of the Securities Act of 1933

Observing that in such situations "a witness subpoenaed to appear * * * has no constitutional right to * * * counsel" [supra, at 65]

Recognizing state authority to regulate offerings of securities that are completely intra-state