Filed May 26, 2011
No federal securities law, including SIPA, imposes upon a brokerage customer a duty to investigate his broker to ensure that the broker is not engaging in fraud.14 As to SIPA in particular, the Court of Appeals for the Second Circuit has rejected the argument that SIPA imposes any diligence obligation. See In re New Times, 371 F.3d at 86-87 (“[A] goal of greater investor vigilance, however, is not emphasized in the legislative history of SIPA. Instead . . . the drafters’ emphasis was on promoting investor confidence in the securities market and protecting broker- dealer customers.”)
Filed December 15, 2014
Servs., Inc., 463 F.3d 125, 129-30 (2d Cir. 2006) (“[T]reating the fictitious paper profits as within the ambit of the customers’ ‘legitimate expectations’ would lead to the absurdity of ‘duped’ investors reaping windfalls as a result of fraudulent promises made on fake securities.”) (citing In re New Times Sec. Servs., Inc., 371 F.3d 68, 87-88 (2d Cir. 2004)). Moreover, in many different liquidation and receivership proceedings, courts have used the Net Investment Method to distribute the remaining assets of a Ponzi scheme.
Filed August 13, 2012
4 It is well established that brokerage customers like Movants have no duty to monitor or supervise their broker. See, e.g., In re New Times Sec. Servs., 371 F.3d 68, 87 (2d Cir. 2004). Case 1:12-mc-00115-JSR Document 295 Filed 08/13/12 Page 9 of 13 6 nydocs1-993133.4 II. THE COMPLAINTS SHOW THAT MOVANTS WERE NET LOSER S, WHO WOULD NOT WILLFULLY BLIND THEMSELVES TO SUFFER HUGE LOSSES; A CONTRARY INFERENCE IS NOT JUST "IMPLAUSIB LE" BUT IS IN FACT ABSURD.
Filed July 25, 2012
16 Net Equity Decision, 654 F.3d at 241. The Second Circuit relied on In re New Times Sec. Servs., Inc., 371 F.3d 68, 71 (2d Cir. 2004), where the court held that “each Claimant’s net equity should be calculated by reference to the amount of money the Claimants originally invested with the Debtors (not including any fictitious interest or dividend reinvestments).” See Net Equity Decision, 654 F.3d at 241.
Filed May 22, 2012
Mem. at 16), In re New Times Securities Services, Inc., 371 F.3d 68, 82 (2d Cir. 2004), simply extends Skidmore deference to a persuasive agency interpretation. It concluded that the interpretation at issue was persuasive because it furthered the statute’s “aims” and followed its “legislative history.”
Filed April 17, 2012
Estate of Landers, 545 F.3d at 108. Indeed, recognizing the unique expertise of the SEC, the Second Circuit has afforded Skidmore deference to a position adopted by the SEC for the first time in an amicus brief before that Court. See In re New Times Secs. Servs., Inc., 371 F.3d 68, 82-83 (2d Cir. 2004). The case for Skidmore deference is far more compelling here, where the SEC guidance stems from a long-standing interpretation and there is a clear need for consistency in application of the statute.
Filed July 11, 2011
Effectively, Defendants‟ position that any antecedent debt is based on the fictitious account statement would create an entitlement to fake profits where there is none. See In re New Times Securities Services, Inc., 371 F.3d 68, 88 (2d Cir. 2004) (court will defer to persuasive analysis of “potential absurdities created by reliance on the entirely artificial numbers contained in fictitious account statements.”) None of the cases cited by the Defendants alter that fact.
Filed February 14, 2013
BNYM also observes that the Second Circuit has afforded Skidmore deference to positions adopted by the SEC in an amicus brief. See In re New Times Sec. Servs., Inc., 371 F.3d 68,82-83 (2d Cir. 2004). But an agency's amicus brief stands on a far different footing than unattributed statements on a website.
Filed July 7, 2011
v. Siegal, 592 F. Supp. 2d 452 (S.D.N.Y. 2008) ....................................................63 In re New Times Sec. Servs., Inc., 371 F.3d 68 (2d Cir. 2004)....................................78, 84 Newman v. Family Mgmt. Corp., No. 08 Civ. 11215, 2010 U.S. Dist. LEXIS 111589 (S.D.N.Y. Oct. 20, 2010) .......................................................................................71, 72 Olsen v. Pratt & Whitney Aircraft, 136 F.3d 273 (2d Cir. 1998) ......................................88 One Beacon Ins. Co. v. Old Williamsburg Candle Corp., 386 F. Supp. 2d 394 (S.D.N.Y. 2005)..........................................................................90 Osofsky v. Zipf, 645 F.2d 107 (2d Cir. 1981).....................................................................63 Panos v. Island Gem Enters., 880 F. Supp. 169 (S.D.N.Y. 1995).....................................63 People v. Ivy Asset Mgmt. LLC, No. 450489/2010 (N.Y. Sup. Ct. May 11, 2010).........................................................41 Perrin & Nissen Ltd. v. SAS Group, Inc., No. 06 Civ. 13089, 2009 WL 855693 (S.D.N.Y. Mar. 27, 2009) ..........................