As we have discussed, SLUSA provides, for its part, that no “class action based upon the statutory or common law of any State” alleging that the defendant “used or employed any manipulative or deceptive device or contrivance in connec- tion with the purchase or sale of a covered security” may “be maintained in any State or Federal court.” 15 U.S.C. § 78bb(f)(1). Instead, such actions must be brought under the federal standards of the PSLRA.

The fact that this is a private action styled as a public one does not change the fact that this action's sole purpose is to vindicate the rights of private account holders. Because the claims plaintiffs assert in this action are not brought by a "State or political subdivision on its own behalf" 15 U.S.C. § 78bb(f)(3)(B) (emphasis added), SLUSA's state action savings clause does not bar dismissal of plaintiffs' claims. iv.

’s Mem. 13; 15 U.S.C. § 78bb(f)(3)(A)(ii)(I). Nor is any defendant an “affiliate of the issuer.”

Where the other elements of SLUSA are met (i.e., the action is a covered class action, the claims are state-law claims, and the action involves a covered security), a claim is precluded only if it alleges: (A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or (B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security. 15 U.S.C. § 78bb(f)(1). Defendants contend that all of the Oregon Trust’s claims are precluded under the misrepresentations or omissions prong.

Id. at 880, citing 15 U.S.C. § 78bb(f)(1)(B). For the same reasons, Plaintiff's claim here is precluded by SLUSA and must be dismissed.38 CONCLUSION For the foregoing reasons, Plaintiff's Complaint should be dismissed with prejudice and Plaintiff's Motion To Remand (D.E. 16) should be denied.

12 In addition, both (a) the mutual funds that allegedly paid A.G. Edwards “secret” and “undisclosed” “kickbacks” and (b) the securities that make up the portfolios of the mutual funds, which are purchased and sold by the mutual funds through broker-dealers such as the Defendants, are “covered securities” as that term is defined in SLUSA. “The term ‘covered security’ means a security that satisfies the standards for a covered security specified in paragraph (1) or (2) of section 18(b) of the Securities Act of 1933, at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred ....” 15 U.S.C. § 78bb(f)(5)(E). Section 18(b) of the 1933 Act in turn defines “covered security” to include securities traded on a national exchange (such as the securities owned in the mutual fund portfolios) and securities (such as mutual funds) issued by an investment company that is registered with the Securities and Exchange Commission pursuant to the Investment Company Act of 1940, 15 U.S.C. § 80a-51, et seq.

Case 1:08-cv-11117-TPG Document 846 Filed 01/23/13 Page 16 of 19 11 common law of any State[.]" 15 U.S.C. § 78bb(f)(1).19 Thus, the state law prong of SLUSA preclusion also is satisfied. See, e.g., Lakeview Inv., 2012 WL 4461762, at *2.

Atkinson, 664 F. Supp. 2d at 905 (“Broadly interpreting . . . the first Delaware Carve-Out would . . . contravene the Supreme Court’s holding in Dabit that courts are to read SLUSA’s preclusion provisions broadly”). Furthermore, the first Delaware carve-out applies only to “[t]he purchase or sale of securities by the issuer . . . .” 15 U.S.C. § 78bb (3)(A)(ii)(I). Here, the ARPS were redeemed, not purchased, by the Fund.

Judge Smith reasoned that SLUSA’s “Counting” provision is “not relevant,” because “even if the Trust is ‘treated as one person’ it is still suing ‘on behalf of’ more than 50 others — just as a class representative may be one person, but a class action will still be barred by SLUSA.” Id. at **35 (quoting 15 U.S.C. § 78bb(f)(5)(D)).

The Trustee’s Claims Clearly Allege Fraud “In Connection With” A “Covered Security” A “covered security” includes any security that is listed or authorized for listing on the New York Stock Exchange or another national exchange, as well as securities issued by investment companies registered with the SEC. See 15 U.S.C. §§ 78bb(f)(5)(E), 77r(b). As the Trustee alleges, BLMIS purported to purchase securities within the S&P 100 Index, which are listed and publicly traded on the national exchanges.