689 F. App'x 39
2d Cir.
2017

SUMMARY ORDER

Plaintiffs-Appellants (as captioned above and referred to herein as “Plaintiffs”) appeal the May 18, 2016, Opinion and Order of the United States District Court for the Southern District of New York (Koeltl, /.) dismissing in its entirety their Second Amended Complaint (“SAC”) against Defendants-Appellees JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., JP Morgan Securities LLC, JPMorgan Securities Ltd., John Hogan, and Richard Cas-sa (collectively, “JPMorgan”), which asserted, as relevant here, a control-person claim under Section 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 16 U.S.C. § 78t(a), and a claim under the Federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (the “Federal RICO claim”). We assume the parties’ familiarity, with the underlying facts and the procedural history, which we reference only as necessary to explain our conclusions.

Plaintiffs are former customers of Bernard L. Madoff Investment Securities LLC (“BLMIS”) who are' commonly referred to as “net winners,” having withdrawn more from Bernard Madoffs Ponzi scheme than they put in. More than five years after Madoffs 2008 arrest, Plaintiffs sued JPMorgan under Section 20(a), alleging that JPMorgan, as primary banker to Madoff and BLMIS, is liable for BLMIS’s and Madoffs individual violations of Section 10(b) and Rule 10b-5 of the Exchange Act. Plaintiffs also raised various claims under the federal RICO statute and state law.

The District Court dismissed Plaintiffs’ SAC in its entirety on several independent grounds. As relevant here, the District Court first held that Plaintiffs’ Section *4020(a) control-person claim failed for three reasons. First, the claim was time-barred by the Exchange Act’s five-year statute of repose, which — unless and until the Supreme Court informs us that our decision in Police and Fire Retirement System of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 109-10 (2d Cir. 2013), is erroneous — is not entitled to tolling under American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Further, even if statutes of repose were entitled to American Pipe tolling, such tolling was not available here given the differences between the present claims and parties and those in the class action that Plaintiffs argue paused the clock. Second, even if Plaintiffs’ Section 20(a) claim were timely, the District Court found that Plaintiffs failed to adequately plead that JPMorgan exercised the requisite “control” over BLMIS or the Ponzi scheme under the law of this Circuit. Third, there was no plausible allegation that JPMorgan employees knew or culpably participated in the Ponzi scheme. The District Court then expressly declined to address whether Plaintiffs’ various theories of damages were cognizable under Section 20(a). Finally, the District Court dismissed the Federal RICO claim as barred by the applicable four-year statute of limitations and, in any event, barred by the Private Securities Litigation Reform Act of 1995 (“PSLRA”), which precludes the use of allegations of securities fraud to form the basis for civil RICO liability. See Friedman v. JP Morgan Chase & Co., No. 15-cv-5899, 2016 WL 2903273, at *10, *13, *14 (S.D.N.Y. May 18, 2016),

On appeal, Plaintiffs challenge each of the District Court’s rulings, and, more specifically, each independent basis for dismissal.

With respect to Plaintiffs’ Section 20(a) claim, we agree with the District Court’s conclusion that Plaintiffs failed to adequately plead the control element of their Section 20(a) claim. We therefore need not consider the remainder of Plaintiffs’ arguments as to that claim. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir. 2007) (“To establish a prima facie case of control person liability, a plaintiff must show ... control of the primary violator by the defendant....”).

We have also considered the remainder of Plaintiffs’ arguments as to the dismissal of their Federal RICO claim and find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.

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