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IN RE: Bank of America Corp. Securities, Derivative and Employee Retirement Income Security Act (ERISA) Litigation

MEMORANDUM OF LAW in Support re: 584 MOTION for Summary Judgment.. Document

20 Cited authorities

  1. Celotex Corp. v. Catrett

    477 U.S. 317 (1986)   Cited 217,065 times   40 Legal Analyses
    Holding that a movant's summary judgment motion should be granted "against a [nonmovant] who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"

  2. Boguslavsky v. Kaplan

    159 F.3d 715 (2d Cir. 1998)   Cited 364 times   1 Legal Analyses
    Holding that to bring a claim under § 20, a plaintiff must show, inter alia, "a primary violation by a controlled person"

  3. In re Refco, Inc. Securities Litigation

    503 F. Supp. 2d 611 (S.D.N.Y. 2007)   Cited 193 times
    Holding that Securities Act allegations did not sound in fraud where complaint was "carefully structured so as to draw a clear distinction between negligence and fraud claims"

  4. In re Bank of America Corp. Securities, Derivative

    757 F. Supp. 2d 260 (S.D.N.Y. 2010)   Cited 153 times   1 Legal Analyses
    Holding that Rule 9(b) does not apply to Section 14 claims sounding in negligence

  5. In re Lehman Brothers Securities Erisa Litigation

    799 F. Supp. 2d 258 (S.D.N.Y. 2011)   Cited 93 times   1 Legal Analyses
    Holding that statements regarding compliance with GAAS and GAAP are inherently statements of opinion

  6. Kalin v. Xanboo, Inc.

    526 F. Supp. 2d 392 (S.D.N.Y. 2007)   Cited 48 times
    Holding that a court's analysis under Rule 12(b) "is limited to information contained within the four corners of the complaint" and that "[w]hen material outside the pleadings is presented in response to a motion to dismiss, the court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment"

  7. Ellison v. American Image Motor Co.

    36 F. Supp. 2d 628 (S.D.N.Y. 1999)   Cited 57 times
    Holding that to the extent preceding allegations in the complaint, which unambiguously sound in fraud, are incorporated by reference into the § 12 claim, that claim must be pleaded with particularity

  8. Yamamoto v. Omiya

    564 F.2d 1319 (9th Cir. 1977)   Cited 106 times   1 Legal Analyses
    Holding that Rule 12(f) does not authorize district courts to strike claims for damages because the damages are precluded as a matter of law

  9. Demaria v. Andersen

    153 F. Supp. 2d 300 (S.D.N.Y. 2001)   Cited 26 times
    Discussing absence of Morgan Stanley as a defendant

  10. IBS Financial Corp. v. Seidman & Associates, L.L.C.

    136 F.3d 940 (3d Cir. 1998)   Cited 20 times
    Holding that the board properly exercised its discretion to reject board nominees where the charter was violated and the provision was enforceable because it did not offend public policy and was "reasonable on its face"

  11. Rule 56 - Summary Judgment

    Fed. R. Civ. P. 56   Cited 329,994 times   158 Legal Analyses
    Holding a party may move for summary judgment on any part of any claim or defense in the lawsuit

  12. Section 78t - Liability of controlling persons and persons who aid and abet violations

    15 U.S.C. § 78t   Cited 3,989 times   20 Legal Analyses
    Holding liable any person "who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder"

  13. Section 77k - Civil liabilities on account of false registration statement

    15 U.S.C. § 77k   Cited 2,114 times   86 Legal Analyses
    Holding liable for a false registration statement "every person who was a director of . . . or partner in the issuer" at time of filing

  14. Section 78n - Proxies

    15 U.S.C. § 78n   Cited 1,628 times   19 Legal Analyses
    Incorporating § 78m(d) by reference

  15. Section 77b - Definitions; promotion of efficiency, competition, and capital formation

    15 U.S.C. § 77b   Cited 1,407 times   27 Legal Analyses
    Instructing the SEC to consider, "in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation"

  16. Section 77o - Liability of controlling persons

    15 U.S.C. § 77o   Cited 805 times   8 Legal Analyses
    Imposing liability on persons who "control[] any person liable" under §§ 11 or 12

  17. Section 229.512 - (Item 512) Undertakings

    17 C.F.R. § 229.512   Cited 39 times   1 Legal Analyses
    Stating that the SEC's position is that indemnification to officers and directors for liabilities arising under the Securities Act is against public policy and such indemnification is unenforceable, with the exception for expenses incurred in successful defense of any action