Affiliated Ute Citizens v. United States

131 Citing briefs

  1. Brado v. Vocera Communications Inc et al

    MOTION to Certify Class , Appoint Class Representatives, and Approve Class Counsel

    Filed July 15, 2015

    Instead, “[a]ll that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of [their] decision.” Affiliated Ute, 406 U.S. at 153-54; see also Plascencia v. Lending 1st Mortg., 259 F.R.D. 437, 447 (N.D. Cal. 2009) (same). The Affiliated Ute doctrine arises out of the pragmatic reality that “as a practical matter [reliance on an omission] is impossible to prove.”

  2. In Re: Refco Securities Litigation

    MEMORANDUM OF LAW in Opposition re:

    Filed May 21, 2010

    To the extent the uncollectible receivable should have been disclosed, it was Refco itself who should have disclosed it. Lead Plaintiffs have not alleged (nor can they) that Grant Thornton had a “duty to disclose” any information at all (Affiliated Ute, 406 U.S. at 153-54), except to the extent that it had a duty to correct what Lead Plaintiffs say were its affirmatively misleading audit opinions. See, e.g., Sec.

  3. Ronald Siemers v. Wells Fargo & Company et al

    Memorandum in Opposition re MOTION to Dismiss Counts I, II and IV of Plaintiff's Consolidated Amended Class Action Complaint

    Filed May 25, 2006

    17 Where, as here, the class members were mislead into overvaluing a security by deception concerning the legitimacy of anticipated expenditures, “the correct measure of damages . . . is the difference between the fair value of all that the [plaintiff] received and the fair value of what he would have received had there been no fraudulent conduct.” Randall, 478 U.S. at 661-62; Affiliated Ute, 406 U.S. at 155. In other words, damages are measured by “holding the defendant to the bargain by requiring him to pay [out-of-pocket] damages.”

  4. Nicolow v. Hewlett-Packard Company et al

    MOTION to Certify Class

    Filed November 4, 2014

    See Coffman Report ¶¶73-74; Dodona I, LLC v. Goldman, Sachs & Co., 296 F.R.D. 261, 271 (S.D.N.Y. 2014) (“[I]n light of the class-wide methodology for calculation of damages, any necessary individual inquiries are a far cry from the scope of individualized issues of proof that would defeat a finding of predominance . . ..”); Affiliated Ute, 406 U.S. at 155 (adopting the out-of-pocket measure of damages); Rosado v. China N.E. Petroleum Holdings, Ltd. 692 F.3d 34, 38 (2d Cir. 2012) (“damages consist[] of the difference between the price paid and the ‘value’ of the stock when bought”). The Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1435 (2013)—an antitrust case involving four disparate theories of liability and damages—is not to the contrary.

  5. Kranzler v. Intercloud Systems, Inc. et al

    MEMORANDUM in Opposition

    Filed August 2, 2016

    Plaintiff also seeks to invoke the Affiliated Ute presumption of reliance, pursuant to which reliance can be presumed in an omissions case from the materiality of the information not disclosed. Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128, 153-54 (1972). (See Motion at 27, “Defendants’ statements during the Class Period omitted material information, specifically that the articles were promotional advertisements commissioned, controlled, and paid for by Defendants.”)

  6. Kreek v. Wells Fargo & Company et al

    MOTION to Dismiss Amended Complaint; Memorandum of Points and Authorities in Support of Motion

    Filed January 22, 2009

    A federal trusteeship over an Indian tribe had been terminated nd its assets were to be distributed to its “mixed blood” members. 406 U.S. at 135-36. The defendant bankers were charged by the corporation representing the mixed-blood members to purchase shares from any members who chose to sell them early.

  7. In Re: Parmalat Securities Litigation

    MEMORANDUM OF LAW in Support re: 679 MOTION to Certify Class Lead Plaintiffs Notice of Renewed Motion for Class Certification.. Document

    Filed September 21, 2006

    As shown below, however, with respect to all of Parmalat securities involved here – equity and debt publicly offered – reliance is presumed under several independent doctrines. 18 Case 1:04-md-01653-LAK-HBP Document 680 Filed 09/21/06 Page 27 of 38 a. Reliance Is Presumed Under Affiliated Ute Under the doctrine set forth in Affiliated Ute Citizens v. United States, 406 U.S. 128, 153- 154, 92 S. Ct. 1456, 1472 (1972), reliance is presumed where “a plaintiff’s claim is based on a defendant’s failure to disclose material information.” Litton Indus., Inc. v. Lehman Bros.

  8. Menaldi v. Och-Ziff Capital Management Group LLC et al

    MEMORANDUM OF LAW in Support re: 60 MOTION to Certify Class . . Document

    Filed August 9, 2016

    The Affiliated Ute presumption applies only in connection with “claims ‘involving primarily a failure to disclose[.]’ ” In re Smith Barney Transfer Agent Litig., 290 F.R.D. 42, 47 (S.D.N.Y. 2013) (citing Starr v. Georgeson S'holder, Inc., 412 F.3d 103, 109 n. 5 (2d Cir.2005) (quoting Affiliated Ute, 406 U.S. at 153, 92 S.Ct. 1456). Here, reliance may be presumed under Affiliated Ute based on Defendants’ omissions of material information including, inter alia, Och-Ziff’s failure to disclose the existence and risks of ongoing regulatory proceedings, which were likely to have a material impact on its business.

  9. Steginsky v. Xcelera Inc. et al

    Memorandum in Opposition re MOTION to Certify Class

    Filed November 19, 2014

    The only presumption relevant to this matter is the one created by the Supreme Court’s decision in Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153- 54 (1972) (the “Affilated Ute presumption” or the “Ute presumption”), which affords a securities plaintiff a rebuttable presumption of reliance in omissions cases. See Stoneridge, 552 U.S. at 159 (citing Affiliated Ute, 406 U.S. at 153-54).2 Contrary to Plaintiff’s arguments, Affiliated Ute “did not abolish [reliance] as an element of the cause of action.” Lewis v. McGraw, 619 F.2d 192, 195 (2d Cir. 1980).

  10. Allianz Risk Transfer, Inc. et al v. Paramount Pictures Corporation

    REPLY MEMORANDUM OF LAW in Support re: 85 MOTION for Summary Judgment . . Document

    Filed July 25, 2014

    Plaintiffs’ federal securities claims turn on alleged misrepresentations—not omissions. See Affiliated Ute, 406 U.S. at 153; Starr ex rel. Estate of Sampson v. Georgeson S’holder, Inc., 412 F.3d 103, 109 n.5 (2d Cir. 2005) (Affiliated Ute presumption applies only in connection with claims involving primarily a failure to disclose).