Filed August 9, 2013
But Plaintiff’s conclusory letters, claiming no first-hand knowledge and providing no other support for crediting his unsupported assertions concerning Herbalife, do not provide any basis from which the Court can strongly infer actual knowledge on the part of any of the Defendants concerning Herbalife’s purported fraud. See Lerner, 459 F.3d at 293 (“Although the plaintiffs conclusorily allege that the banks had actual knowledge, we think that they failed to plead facts with the requisite particularity to support that claim.”).
Filed December 7, 2009
Absent such allegations, BMO has failed to plead the actual knowledge element. Case 1:09-cv-07557-GBD -JLC Document 39 Filed 12/07/09 Page 10 of 14 7 B. BMO Fails To Allege that Nordlicht Substantially Assisted Lee’s Fraud Aiding and abetting fraud also requires substantial assistance, see Lerner, 459 F.3d at 292, which in turn requires allegations that the defendant’s actions were “a proximate cause of the primary violation.” Armstrong v. McAlpin, 699 F.2d 79, 92 (2d Cir. 1983).
Filed October 2, 2014
Even Plaintiffs’ favorite case, Lerner, dismissed the negligence claims of non-customers because “banks do not owe non-customers a duty to protect them from the intentional torts of their customers.” 459 F.3d at 286. Plaintiffs also fail to address PNC Bank’s argument – and the cases cited in support of it – that a bank owes no common-law duties to its customers outside of its contracts.
Filed October 23, 2012
It is not enough to allege knowledge of fraud in conclusory fashion; Chevron must allege facts which, if true, will “give rise to the ‘strong inference,’ required by Federal Rule of Civil Procedure 9(b), of actual knowledge” of the alleged fraud. Lerner, 459 F.3d at 293. Chevron has not done so, and cannot credibly do so, certainly with respect to these two men who live and work in the backwaters of the Amazon, but instead has pleaded in broad, conclusory terms that Camacho or Piaguaje “knew or should have known” of the alleged fraud.
Filed July 27, 2012
A claim of aiding and abetting must show actual knowledge of the underlying fraud. See Lerner, 459 F.3d at 292-93; Berman v. Morgan Keegan & Co., No. 10 Civ. 5866, 2011 WL 1002683, at *10 (S.D.N.Y. Mar. 14, 2011) (allegations of constructive knowledge or recklessness are insufficient). As detailed above (see Part I), Plaintiffs fail to plead an underlying fraud and thus, they also fail to plead aiding and abetting liability.
Filed March 9, 2012
To plead commercial bad faith, plaintiffs must allege with particularity that JPMorgan had “actual knowledge” of Madoff’s Ponzi scheme and that JPMorgan became a “participant” in that scheme. See, e.g., Lerner, 459 F.3d at 293; accord Rosner v. Bank of China, 2008 WL 5416380, at *15 (S.D.N.Y. Dec. 18, 2008). As shown, plaintiffs have failed to meet these requirements, and the claim for 36 commercial bad faith must be dismissed under Rule 9(b).
Filed May 4, 2011
The Court noted that “proximate cause under RICO and under New York common law each requires a showing of direct injury.” 459 F.3d at 285 n.6 (internal quotation marks omitted). The Court drew a distinction, relevant here, between the bank’s potential responsibility for the injury suffered by investors with which it had a direct deposit relationship and that suffered by investors who had no such relationship but who claimed that they were harmed by the bank’s failure to take action to stop the fraud.
Filed November 13, 2009
10 NYMEX faces the same heightened pleading requirements under Rule 9(b) in charging Nordlicht with aiding and abetting. See Lerner, 459 F.3d 273 (applying Rule 9(b) and its “strong inference” requirement to claim for aiding and abetting fraud); Armstrong, 699 F.2d at 92-93 (same). 11 See also Ryan v. Hunton & Williams, No. 99-5938, 2000 WL 1375265, at *9 (E.D.N.Y. Sept. 20, 2000); Renner v. Chase Manhattan Bank, No. 98-926, 2000 WL 781081, at *12 (S.D.N.Y. June 16, 2000).
Filed January 5, 2018
“A plaintiff alleging aiding and abetting claims sounding in fraud must also plead the elements of aiding and abetting with particularity.” Berman, 2011 WL 1002683, at *7 (citing Lerner, 459 F.3d at 292-93). PBTV has not done so here.
Filed December 14, 2017
Because JPMorgan owed no fiduciary duty to Peregrine, a fortiori, it could not owe any such duty to Plaintiffs, whose only connection with JPMorgan was that they were Peregrine’s customers. See Lerner, 459 F.3d at 286; Radwill, 2013 Ill. App. (1st) 110912-U at *9; Thompson, 375 F. Supp. 2d at 683-84. D. Plaintiffs Fail To State A Claim Under The Commodity Exchange Act (Claims 1, 5, 16).