Cho v. BlackBerry Ltd., 991 F.3d 155

Background

In 2013 multiple putative securities class actions against BlackBerry over its Z10 release were consolidated; the court appointed Todd Cox and Mary Dinzik as lead plaintiffs with Kahn Swick & Foti as lead counsel.
Yong Cho and Batuhan Ulug joined the consolidated amended complaint as individual ("additional") named plaintiffs, represented by Brower Piven.
The district court dismissed the amended complaint and denied reconsideration/leave to amend; the lead plaintiffs alone filed a notice of appeal.
The Second Circuit affirmed dismissal but remanded for failure to explain denial of leave to amend; on remand plaintiffs were granted leave and filed a second amended complaint adding defendant Steve Zipperstein.
Defendants moved for judgment on the pleadings as to Cho and Ulug, arguing the original dismissal became final as to them because they did not individually appeal; the district court agreed and also dismissed claims against Zipperstein as barred by res judicata.
Cho and Ulug’s motion for reconsideration was denied; they appealed, and the Second Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fed. R. App. P. 3 permits individually named plaintiffs in a putative class action to rely on a lead plaintiffs’ notice of appeal under Rule 3(c)(3) (i.e., no separate joinder or notice required).	Cho/Ulug: Rule 3(c)(3) allows a notice naming a person qualified to represent the class to suffice for all class members, including other named plaintiffs; no individual notice required.	Defendants: Rule 3(c)(1)(A) requires the notice to specify each party taking the appeal; individual named plaintiffs who chose to litigate personally must indicate intent to appeal.	The court held Rule 3(c)(1)(A) requires individual named plaintiffs to indicate their intent to appeal; they could not rely on the lead plaintiffs’ notice, so the earlier dismissal became final as to Cho and Ulug.
Whether claims against newly added defendant Zipperstein are barred despite being added after the prior dismissal.	Cho/Ulug: Claims against Zipperstein are new and should proceed because he was not a defendant in the dismissed complaint.	Defendants: Res judicata bars those claims because they arise from the same transaction/occurrence and Zipperstein is in privity with the original defendants.	The court held the Zipperstein claims are barred by res judicata: same cause of action and Zipperstein was in privity (functionally an agent/proxy).
Whether the district court abused its discretion by denying reconsideration based on an audio recording of oral argument in Cohen.	Cho/Ulug: The audio is new evidence that undermines reliance on Cohen and warrants reconsideration.	Defendants: The recording is not newly discovered, is not controlling, and would not change the outcome.	The court held denial of reconsideration was not an abuse of discretion; the audio was not new or outcome-altering.

Key Cases Cited

Cohen v. UBS Fin. Servs., Inc., 799 F.3d 174 (2d Cir. 2015) (notice of appeal by one named plaintiff did not clearly show other named plaintiffs intended to join appeal)
Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) (strict enforcement of Rule 3 notice requirements)
Billino v. Citibank, N.A., 123 F.3d 723 (2d Cir. 1997) (discussing Rule 3(c)(3) amendment to reduce Torres-based satellite litigation)
Massie v. U.S. Dep’t of Housing & Urban Dev., 620 F.3d 340 (3d Cir. 2010) (class-action notice sufficed where caption used "et al." and later filings reinforced appeal by all named plaintiffs)
Gonzalez v. Thaler, 565 U.S. 134 (2012) (notice requirement prevents parties from "sitting on the fence" about appeals)
Baylis v. Marriott Corp., 906 F.2d 874 (2d Cir. 1990) (notice requirement provides necessary identification of appellants for court and opposing parties)
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) (parties cannot benefit from an appellate reversal procured by others)
L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85 (2d Cir. 1999) (res judicata bars claims arising from same transaction or occurrence)
Sacerdote v. Cammack Larhette Advisors, LLC, 939 F.3d 489 (2d Cir. 2019) (privity may include agents or proxies for purposes of preclusion)
EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621 (2d Cir. 2007) (standards for res judicata elements)