FUND LIQUIDATION HOLDINGS LLC, AS ASSIGNEE AND SUCCESSOR-IN-INTEREST TO FRONTPOINT ASIAN EVENT DRIVEN FUND, L.P., ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, SONTERRA CAPITAL MASTER FUND, LTD., Plaintiffs-Appellants, FRONTPOINT ASIAN EVENT DRIVEN FUND, LTD., FRONTPOINT ASIAN EVENT DRIVEN FUND, L.P., Plaintiffs, v. BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A, ROYAL BANK OF SCOTLAND PLC, THE ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES JAPAN LIMITED, UBS AG, UBS SECURITIES JAPAN CO., LTD., ING GROEP N.V., ING BANK N.V., BNP PARIBAS, S.A., BNP PARIBAS NORTH AMERICA, INC., BNP PARIBAS SECURITIES CORP., BNP PARIBAS PRIME BROKERAGE, INC., OVERSEA-CHINESE BANKING CORPORATION LTD., BARCLAYS PLC, BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., DEUTSCHE BANK AG, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, CREDIT AGRICOLE S.A., CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, STANDARD CHARTERED BANK, STANDARD CHARTERED PLC, DBS BANK LTD., DBS GROUP HOLDINGS LTD., DBS VICKERS SECURITIES (USA) INC., UNITED OVERSEAS BANK LIMITED, AUSTRALIA AND NEW ZEALAND BANKING GROUP, LTD., BANK OF TOKYO-MITSUBISHI UFJ, LTD., THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, HSBC BANK USA, N.A., HSBC HOLDINGS PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC USA INC., MACQUARIE BANK LTD., MACQUARIE GROUP LTD., COMMERZBANK AG, ING CAPITAL MARKETS LLC, CREDIT SUISSE INTERNATIONAL, ANZ SECURITIES, INC., UOB GLOBAL CAPITAL, LLC, Defendants-Appellees, CITIBANK, N.A., CITIGROUP INC., JPMORGAN CHASE & CO., JP MORGAN CHASE BANK, N.A., JOHN DOES, Nos. 1-50, Defendants.
No. 19-2719-cv
United States Court of Appeals For the Second Circuit
March 17, 2021
August Term 2020. Argued: September 11, 2020.
Appeal from the United States District Court for the Southern District of New York
No. 16-cv-5263, Alvin K. Hellerstein, Judge.
Before: SULLIVAN, PARK, and NARDINI, Circuit Judges.
In 2016, two Cayman Islands investment funds filed a class action complaint against numerous banks, alleging that the banks had conspired to manipulate certain benchmark interest rates. It was not until a year later that the banks discovered that the two plaintiff funds had been dissolved years earlier, and that the case was actually being prosecuted by a separate entity, Fund Liquidation Holdings LLC, which maintains that it was assigned the dissolved entities’ claims. The district court (Hellerstein, J.) dismissed the case with prejudice for lack of subject-matter jurisdiction, reasoning that, because the action was initiated by non-existent parties, the case was a legal nullity and so could not be salvaged through
On appeal, we are primarily tasked with deciding two issues: (i) whether the dissolved entities possessed Article III standing when the case was initiated, and, if not, (ii) whether Fund Liquidation is nevertheless able to join the action through
VACATED AND REMANDED.
ERIC F. CITRON (Vincent Briganti, Margaret MacLean, Lowey Dannenberg, P.C., White Plains, NY, on the brief), Goldstein & Russell, P.C., Bethesda, MD, for Plaintiffs-Appellants Fund Liquidation Holdings LLC and Sonterra Capital Master Fund, Ltd.
JOEL KURTZBERG (Herbert S. Washer, Elai Katz, Jason M. Hall, Lauren Perlgut, Adam S. Mintz, on the brief), Cahill Gordon & Reindel LLP, New York, NY, for Defendants-Appellees Credit Suisse Group AG, Credit Suisse AG, and Credit Suisse International.
Arthur J. Burke, Paul S. Mishkin, Adam G. Mehes, Davis Polk & Wardwell LLP, New York, NY, for Defendants-Appellees Bank of America Corporation and Bank of America, N.A.
Penny Shane, Corey Omer, Sullivan & Cromwell LLP, New York, NY, for Defendants-Appellees Australia and New Zealand Banking Group Limited and ANZ Securities, Inc.
Christopher M. Viapiano, Elizabeth A. Cassady, Sullivan & Cromwell LLP, Washington, DC, for Defendant-Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd., n/k/a MUFG Bank, Ltd.
Jonathan D. Schiller, Christopher Emmanuel Duffy, Leigh M. Nathanson, Boies Schiller Flexner LLP, New York, NY, for Defendants-Appellees Barclays PLC, Barclays Bank PLC, and Barclays Capital Inc.
Jayant W. Tambe, Stephen J. Obie, Kelly A. Carrero, Jones Day, New York, NY, for Defendants-Appellees BNP Paribas, S.A., BNP Paribas North America, Inc., BNP Paribas Securities Corp., and BNP Paribas Prime Brokerage, Inc.
David R. Gelfand, Mark D. Villaverde, Milbank LLP, New York, NY, for Defendant-Appellee Commerzbank AG.
Andrew Hammon, Kimberly Anne Havlin, White & Case LLP, New York, NY; Darryl S. Lew, White & Case LLP, Washington, DC, for Defendants-Appellees Crédit Agricole Corporate and Investment Bank and Crédit Agricole S.A.
Erica S. Weisgerber, Debevoise & Plimpton LLP, New York, NY, for Defendants-Appellees DBS Bank Ltd., DBS Group Holdings Ltd., and DBS Vickers Securities (USA) Inc.
Aidan Synnott, Hallie S. Goldblatt, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Defendant-Appellee Deutsche Bank AG.
Christopher M. Paparella, Steptoe & Johnson LLP, New York, NY, for Defendants-Appellees Macquarie Bank Ltd. and Macquarie Group Ltd.
C. Fairley Spillman, Pratik A. Shah, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Defendant-Appellee Oversea-Chinese Banking Corporation Limited.
David S. Lesser, Jamie S. Dycus, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY,
Marc J. Gottridge, Lisa J. Fried, Benjamin A. Fleming, Hogan Lovells US LLP, New York, NY, for Defendants-Appellees Standard Chartered Bank and Standard Chartered plc.
Dale C. Christensen, Jr., Noah Czarny, Seward & Kissel LLP, New York, NY, for Defendants-Appellees United Overseas Bank Limited and UOB Global Capital, LLC.
Nowell D. Bamberger, Cleary Gottlieb Steen & Hamilton LLP, Washington, DC; Charity E. Lee, Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for Defendants-Appellees The Hongkong and Shanghai Banking Corporation Limited, HSBC Bank USA, N.A., HSBC Holdings plc, HSBC North America Holdings Inc., and HSBC USA Inc.
Mark A. Kirsch, Eric J. Stock, Jefferson E. Bell, Gibson, Dunn & Crutcher LLP, New York, NY, for Defendants-Appellees UBS AG and UBS Securities Japan Co., Ltd.
Amanda F. Davidoff, Sullivan & Cromwell LLP, Washington, DC, for Defendants-Appellees ING Groep N.V., ING Bank N.V., and ING Capital Markets LLC.
RICHARD J. SULLIVAN, Circuit Judge:
In 2016, two Cayman Islands investment funds filed a class action complaint against numerous banks (the “Banks“), alleging that the Banks had conspired to manipulate certain Singapore-based benchmark interest rates. It was not until a year later that the Banks discovered that the two plaintiff funds had been dissolved years earlier, and that the case was actually being prosecuted by a separate entity, Fund Liquidation Holdings LLC, which asserts that it was assigned the dissolved entities’ claims. Following that revelation, the district court (Hellerstein, J.) dismissed the case with prejudice for lack of subject-matter jurisdiction, reasoning that, because the action was initiated by non-existent parties, the case was a legal nullity and so could not be salvaged through
On appeal, we are primarily tasked with deciding two issues: (i) whether the dissolved entities possessed Article III standing when the case was initiated, and, if not, (ii) whether Fund Liquidation is nevertheless able to join the action through
I. Background
The global financial system relies on a series of floating benchmark interest rates, many of which reflect the average cost that a bank incurs when borrowing money from one of its peers.1 The most well-known example is the London Interbank Offered Rate, more commonly referred to as “LIBOR.” In recent years, many of the world‘s largest financial institutions have been accused of manipulating
This case concerns an alleged conspiracy by the Banks and others to manipulate two such benchmark rates: the Singapore Interbank Offered Rate (referred to as “SIBOR“) and the Singapore Swap Offered Rate (referred to as “SOR“).2 The two rates are calculated by a trade group, the Association of Banks in Singapore, which is composed of various banks (including some of the defendant banks in this case). Each day, an agent of that association calculates the two rates based, in part, on interest rate quotes submitted by a panel of banks that, again, include several of the defendants in this case (the “Panel“). Between 2007
and 2011, the Banks allegedly worked together to manipulate those two benchmark rates so that they would shift in directions that favored the Banks’ financial positions. “The [alleged] effect of [the Banks‘] conspiratorial price-fixing was to necessarily reduce the amount of interest paid to all holders of SIBOR- and SOR-based financial instruments.” Fund Liquidation Br. at 8. Eventually, this conspiracy was uncovered in 2013 through an investigation spearheaded by the Monetary Authority of Singapore.
Three years later, on July 5, 2016, an initial class action complaint was filed against the Banks (and others) in the names of FrontPoint Asian Event Driven Fund, L.P. and Sonterra Capital Master Fund, Ltd. (together, the “Dissolved Funds“), two Cayman Islands investment funds that claimed to have held financial instruments that relied on the manipulated benchmark rates. Two critical pieces of information were omitted from this initial complaint. First, the complaint failed to disclose that the Dissolved Funds had apparently assigned (or, at least, attempted to assign) the rights to their claims to Fund Liquidation, and that it was really Fund Liquidation that was pulling the strings behind the scenes. Second, and perhaps more importantly, the pleadings failed to reflect that the Dissolved Funds were no longer in existence when the case was initiated – FrontPoint had been dissolved nearly five years earlier, in November 2011, and Sonterra had been dissolved shortly thereafter, in December 2012.
On October 31, 2016, a first amended complaint was filed, which added additional claims under the Sherman Act, the Racketeer Influenced and Corrupt Organizations Act (“RICO“), and common law. As before, this complaint made no mention of Fund Liquidation and referred to the Dissolved Funds in the present tense as if they were still in existence. See J. App‘x at 137 (“FrontPoint . . . is an investment fund” (emphasis added)); id. at 138 (“Sonterra . . . is an investment fund” (emphasis added)). About one year later, the district court dismissed most of the asserted claims, finding that the court lacked personal jurisdiction over the subset of defendant banks that were foreign entities, that Sonterra failed to demonstrate that it would be an efficient enforcer of the antitrust laws, and that the plaintiffs had failed to plead plausible antitrust, RICO, or common law claims. See generally FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16-cv-5263 (AKH), 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017). The district court refused, however,
So, on September 18, 2017, a second amended complaint was filed.3 It was only in this pleading that, for the first time, the plaintiffs clarified that the Dissolved Funds were no longer in operation. J. App‘x at 312 (“FrontPoint . . . was an investment fund” (emphasis added)); id. at 313 (“Sonterra . . . was an investment fund” (emphasis added)). The Banks responded by filing a new motion to dismiss, which added a fresh set of grounds for dismissal, including the contention that the Dissolved Funds lacked capacity to sue in light of their dissolution. It was not until briefing and oral argument that the plaintiffs eventually explained that the Dissolved Funds had assigned their claims to Fund Liquidation, and that it was Fund Liquidation which was, and had always been, the real plaintiff behind the case. Fund Liquidation then requested to substitute into the action under
Around this time, some of the defendants (who have not appealed) decided to settle with Fund Liquidation. Those parties eventually executed binding term sheets and notified the district court.
On October 4, 2018, within weeks of those agreements being signed, the district court dismissed with prejudice the RICO claims and the antitrust claims asserted against certain defendants, but again permitted the plaintiffs to proceed on the common law claims and antitrust claims brought against those defendants who were members of the Panel. See FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16-cv-5263 (AKH), 2018 WL 4830087, at *11–12 (S.D.N.Y. Oct. 4, 2018). The district court also concluded that Fund Liquidation had received a full assignment of rights from FrontPoint and, as a result, granted leave for Fund Liquidation to submit a Third Amended Complaint under
A few weeks later, on October 26, 2018, Fund Liquidation filed a third amended complaint, naming as plaintiff “Fund Liquidation Holdings LLC, as assignee and successor-in-interest to FrontPoint.”4 See J. App‘x at 603. The substantive allegations in this complaint were effectively identical to those in the second amended complaint, with the exception that Fund Liquidation added additional facts concerning the pre-suit assignment it received from FrontPoint.
While Fund Liquidation contested both arguments on the merits, it indicated that it would seek to moot the issues by filing a proposed fourth amended complaint. In that proposed complaint, Fund Liquidation sought to join
two new class representatives, Moon Capital Partners Master Fund, Ltd. and Moon Capital Master Fund, Ltd. (together, the “Moon Funds“), which had transacted directly with the Banks and claimed to have been injured by the same scheme. According to Fund Liquidation, the Moon Funds would be ideal class representatives as they were not open to the same arguments concerning assignment and capacity that had thus far plagued Fund Liquidation. Separately, Fund Liquidation also sought preliminary approval of the settlement agreements that it had signed with some of the defendants.
On July 26, 2019, the district court adopted the Banks’ nullity argument and dismissed the third amended complaint with prejudice on the grounds that the court had lacked subject-matter jurisdiction over the action from its outset, something, the district court concluded, that could not be cured. According to the district court: “[b]ecause [the Dissolved Funds] lacked capacity to sue, there was no real ‘case or controversy’ before the court and, consequently, no subject-matter jurisdiction.” Fund Liquidation Holdings LLC v. Citibank, N.A., 399 F. Supp. 3d 94, 103 (S.D.N.Y. 2019). For similar reasons, the court refused to approve the two settlement agreements that Fund Liquidation had signed with several of the defendants. Id. at 104. The district court also walked back its prior determination
and concluded that FrontPoint had not effectively assigned its claims to Fund Liquidation, meaning that even if Fund Liquidation could join the case through
This appeal followed.
II. Appellate Jurisdiction
As an initial matter, we must decide whether we have jurisdiction over Sonterra‘s claims. The Banks argue that we do not because, as they see it, Fund Liquidation‘s notice of appeal was effective only as to FrontPoint‘s claims. Specifically, the Banks point out that the caption to the notice of appeal identifies only one plaintiff, “Fund Liquidation Holdings LLC, as assignee and successor-in-interest to FrontPoint,” and that the body of the notice states simply that “Plaintiff” is appealing various orders. J. App‘x at 926. Taken together, the Banks say that the notice of appeal failed to make clear that Fund Liquidation was appealing the dismissal of Sonterra‘s claims, which the Banks argue merits dismissal of that portion of the appeal.
Here, Fund Liquidation technically complied with the letter of
the appeal was being taken (the Second Circuit). That is all that the text of
But even if Fund Liquidation‘s failure to expressly identify Sonterra in its notice of appeal did run afoul of
argument that the case was not a nullity precisely because of Sonterra‘s claims. Fund Liquidation Holdings, 399 F. Supp. 3d at 104.
Fund Liquidation‘s notice of appeal therefore not only complied with the text of
III. Standard of Review
On appeal following a dismissal of a complaint for either lack of subject-matter jurisdiction under
Separately, we review denials of motions for leave to amend, to substitute into an action under
for abuse of discretion. See Klein ex rel. Qlik Techs., Inc. v. Qlik Techs., Inc., 906 F.3d 215, 226 (2d Cir. 2018) (motion to substitute); Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Care, L.L.C., 504 F.3d 229, 246 (2d Cir. 2007) (approval of class action settlement); Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (leave to amend). But where, as here, such denials were based on decisions of pure law, they are functionally reviewed de novo, as a decision premised on a legal error is necessarily an abuse of discretion. See Klein, 906 F.3d at 226; Gelboim v. Bank of Am. Corp., 823 F.3d 759, 769 (2d Cir. 2016).
IV. Discussion
This case requires us to engage in a two-step inquiry. First, we must determine whether the Dissolved Funds had Article III standing when the case was initiated in their names. If so, then that would seem to end the matter in Fund Liquidation‘s favor. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20–21 (2d Cir. 1997) (indicating that courts have the power to permit a real party in interest to join an action under
A. The Dissolved Funds Lacked Article III Standing at the Case‘s Initiation
The Banks argue that the Dissolved Funds lacked standing when the original complaint was filed because, by that time, the Dissolved Funds had already (i) “disavowed any interest” in the case, having assigned their claims to Fund Liquidation, Banks Br. at 34, and (ii) been dissolved under Cayman Islands law and so had no legal existence. We address each argument in turn.
1. A Pre-Suit Assignment Does Not Extinguish Article III Standing
There is little merit to the Banks’ initial argument that the Dissolved Funds’ pre-filing assignment of their claims stripped the Dissolved Funds of Article III standing. As several of our sister circuits have explained, there is a distinction between having standing to pursue a claim and being a real party in interest with respect to that claim, only the latter of which is implicated by an assignment. See First Am. Title Ins. Co. v. Nw. Title Ins. Agency, 906 F.3d 884, 890 (10th Cir. 2018); Norris v. Causey, 869 F.3d 360, 366–67 (5th Cir. 2017); Cranpark, Inc. v. Rogers Grp., Inc., 821 F.3d 723, 730 (6th Cir. 2016) (holding that “one who sells his interest in a cause of action is not deprived of Article III standing, but . . . is [instead] susceptible to a real-party-in-interest challenge“); Dunn v. Advanced Med. Specialties, Inc., 556 F. App‘x 785, 789–90 (11th Cir. 2014); Whelan v. Abell, 953 F.2d 663, 671–72 (D.C. Cir. 1992); Apter v. Richardson, 510 F.2d 351, 353 (7th Cir. 1975); see also 6A Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1542 (3d ed.) (hereinafter, “Wright & Miller“) (explaining the differences between possessing standing and being a real party in interest);
Redressability, Sprint explains, focuses “on whether the injury that a plaintiff alleges is likely to be redressed through the litigation,” id. at 287, not on whether the plaintiff itself is “entitled to the relief sought,” Cranpark, 821 F.3d at 731 (internal quotation marks omitted). Here, the Dissolved Funds’ alleged injury is no less redressable through an award of damages simply because legal title to their claims is now owned by someone else.
To be sure, our Circuit‘s pronouncements on this issue are a bit of a mixed bag. For instance, both Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 125 (2d Cir. 1984), and Valdin Investments Corp. v. Oxbridge Capital Management, LLC, 651 F. App‘x 5, 7 (2d Cir. 2016), held that assignment can result in a loss of standing. But Aaron Ferer predates Sprint, and Valdin is a non-precedential summary order, so neither case is binding on us. See Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016) (explaining that we are no longer bound by a prior panel‘s opinion when an intervening Supreme Court decision has “broken the link on which . . . [the] prior decision [was premised] or undermined an assumption of that decision” (internal citations, quotation marks, and alterations omitted)); 2d Cir. R. 32.1.1(a) (“Rulings by summary order [lack] precedential effect.“).5
A closer question, however, is posed in the wake of W.R. Huff Asset Management Co. v. Deloitte & Touche LLP, 549 F.3d 100 (2d Cir. 2008). There, we held that ”Sprint makes clear that the minimum requirement for an injury-in-fact is that the plaintiff have legal title to, or a proprietary interest in, the claim.” Id. at 108 (emphasis added). Taken at face value, that statement would seem to suggest that retaining legal title to a claim is a constitutional requirement of standing. But there is good reason not to read W.R. Huff so literally. First, the case concerned whether a party has standing to assert another
In short, then, we conclude that the Dissolved Funds’ pre-suit assignment of their claims does not pose a constitutional roadblock after Sprint. So that leaves only their pre-suit dissolution.
2. The Dissolved Funds’ Pre-Suit Dissolution Extinguished Both Their Legal Existence and Their Article III Standing
Corporate dissolution implicates two potentially distinct legal concepts: capacity to sue and legal existence. We agree with Fund Liquidation that the former is non-jurisdictional in nature. Capacity to sue addresses only whether a person or company that possesses an enforceable right may act as a litigant. See Horowitz v. 148 S. Emerson Assocs. LLC, 888 F.3d 13, 19 n.4 (2d Cir. 2018). And although it is “allied with . . . the question of standing,” capacity is “conceptually distinct.” 59 Am. Jur. 2d Parties § 26; see also Allan Applestein TTEE FBO D.C.A. v. Province of Buenos Aires, 415 F.3d 242, 245 (2d Cir. 2005) (demonstrating that a lack of capacity is non-jurisdictional by permitting the defense to be waived); E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 935–36 (2d Cir. 1998) (same); Am. Sports Radio Network, Inc. v. Krause (In re Krause), 546 F.3d 1070, 1072 n.2 (9th Cir. 2008) (“[W]e note that it is capacity, not standing, which is at issue.“).
The same, however, cannot be said for legal existence. Fund Liquidation disagrees, suggesting that “corporate ‘existence’ has no valence apart from the . . . issue of corporate capacity to sue.” Reply Br. at 13. While there has admittedly been some disagreement among district courts on this issue,6 we conclude that Fund Liquidation‘s position is incorrect.
To start, the
Fund Liquidation‘s primary response to this argument is to identify various prior cases in which dissolved corporate entities were not thrown out of court for lack of standing. But a close inspection of those cases reveals that each of the corporate entities in question still had some vestige of legal existence at the action‘s inception, even if they lacked the capacity to sue.
Take, for example, Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Building Corp., 302 U.S. 120 (1937). After finding that the dissolved entity lacked capacity, the Supreme Court reversed the lower court‘s decision rather than vacate it for want of jurisdiction. Id. at 127–30. Under Illinois law, however, the dissolved company still possessed some legal identity when it initiated the reorganization proceedings at issue in the case. Specifically, Illinois law granted corporations the right to wind up business for two years after dissolution, which included the right to prosecute and defend legal claims. Id. at 122–24. If a corporation began a lawsuit (or was sued) during those two years, it could see the case through to completion. Id. at 130 (Cardozo, J., dissenting). And, sure enough, the dissolved entity in Chicago Title & Trust was still litigating a case instituted during that two-year windup period when it filed its petition for reorganization. Id. at 130–31. So even though the company lacked capacity, Illinois law still recognized its legal existence – at least, for certain purposes.
The same is true of the other cases that Fund Liquidation cites on this issue. In each case, the courts indicated that state law granted the dissolved entities continued existence even after dissolution so that they could wind up their affairs, which included seeking liquidation under the bankruptcy code. See Cedar Tide Corp. v. Chandler‘s Cove Inn, Ltd. (In re Cedar Tide Corp.), 859 F.2d 1127, 1131-32 (2d Cir. 1988); In re Superior Boat Works, Inc., 438 B.R. 878, 881-83 (Bankr. N.D. Miss. 2010).
Here, by contrast, the record before us indicates that the Dissolved Funds had neither capacity to sue nor legal existence following their dissolution. According to the affidavit of John Michael Harris (the
While Fund Liquidation submitted its own affidavit on the status of dissolved Cayman Islands entities, see ECF No. 250-4, Dkt. No. 16-cv-5263, that affidavit did not contradict the core components of the Harris affidavit that are relevant here – namely, that the Dissolved Funds have no legal existence. Fund Liquidation‘s affidavit instead focused on the fact that the Dissolved Funds’ assignment survived their dissolution, and that Fund Liquidation, as assignee, has a right to sue in the Dissolved Funds’ names. Id. at 11. But whether Cayman Islands law would allow for an assignment and power of attorney to survive dissolution says little about whether the Dissolved Funds have legal existence for purposes of
And without legal existence, the Dissolved Funds lacked standing to sue. After all, “[t]he most elemental requirement of adversary litigation is that there be two or more parties,” meaning that “[a]bsent a plaintiff with legal existence, there can be no Article III case or controversy.” House v. Mitra QSR KNE LLC, 796 F. App‘x 783, 787 (4th Cir. 2019) (quoting Wright & Miller § 3530); see also LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 943, 953 (9th Cir. 2020) (concluding that it is “obvious” that “the dead lack the capacities that litigants must have to allow for a true Article III case or controversy“); Hernandez v. Smith, 793 F. App‘x 261, 265 (5th Cir. 2019) (plaintiff “did not have standing to sue because she was deceased“); In re 2016 Primary Election, 836 F.3d 584, 587 (6th Cir. 2016) (“[O]ne elemental precondition for meeting the case-or-controversy requirement is a claimant with standing. There is no plaintiff with standing if there is no plaintiff.” (internal citation omitted)); cf. Billino v. Citibank, N.A., 123 F.3d 723, 725 (2d Cir. 1997) (explaining that it was a jurisdictional
Before moving on, one component of this conclusion bears at least some additional discussion. Specifically, Fund Liquidation suggests that, by declaring legal existence under state (or, in this case, foreign) law to be a condition of
Federal law sets the parameters on what is necessary to possess
For instance, state law often defines the legal relationships between people and things, which are necessary to understanding whether a particular plaintiff has suffered an injury in fact. A simple example of this is property ownership, which is both an issue of state law and often a foundational standing requirement in a federal takings case. See Stop the Beach Renourishment, Inc. v. Fla. Dep‘t of Env‘t Prot., 560 U.S. 702, 729 n.10 (2010) (explaining that “the claim here is ripe insofar as Article III standing is concerned, since (accepting petitioner‘s version of Florida law as true) petitioner has been deprived of property“); U.S. Olympic Comm. v. Intelicense Corp., S.A., 737 F.2d 263, 268 (2d Cir. 1984) (holding that “[o]nly the owner of an interest in property at the time of the alleged taking has standing to assert that a taking has occurred“).
But that‘s just one example; courts rely on state law in a variety of other contexts to assess whether a plaintiff satisfies Article III. See, e.g., Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (looking to Virginia state law to determine whether the state legislature had the authority to litigate on the State‘s behalf); Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1158–60 (2d Cir. 1994) (looking to state law concerning constructive trusts to resolve an issue of standing); Amrhein v. eClinical Works, LLC, 954 F.3d 328, 334 (1st Cir. 2020) (recognizing that “Article III can be satisfied solely by virtue of an invasion of a recognized state-law right” (internal quotation marks omitted)); Scanlan v. Eisenberg, 669 F.3d 838, 842 (7th Cir. 2012) (explaining that “the nature and extent of [the plaintiff‘s] interest[,] . . . and therefore[] whether that interest can form the basis of a federal suit, depend[s] on [state] law” (internal citations omitted)); FMC Corp. v. Boesky, 852 F.2d 981, 993 (7th Cir. 1988) (holding that “[p]roperly pleaded violations of state-created legal rights . . . must suffice to satisfy Article III‘s injury requirement“).
B. Fund Liquidation Nonetheless Satisfied Article III
We hold today that Article III is satisfied so long as a party with standing to prosecute the specific claim in question exists at the time the pleading is filed. If that party (the real party in interest) is not named in the complaint, then it must ratify, join, or be substituted into the action within a reasonable time. Only if the real party in interest either fails to materialize or lacks standing itself should the case be dismissed for want of subject-matter jurisdiction.
Admittedly, this is not a view adopted by many courts. The far more common view is the so-called “nullity doctrine” exemplified by Zurich Insurance Co. v. Logitrans, Inc., 297 F.3d 528 (6th Cir. 2002), which says that a case initiated in the name of a plaintiff that lacks standing is an incurable nullity. But, for the reasons explained below, we conclude that neither Article III nor our Court‘s past precedent requires us to adopt this doctrine. And because “the concerns animating [Article III standing] are absent” where a real party in interest exists and is willing to join an action, Cortlandt St. Recovery Corp. v. Hellas Telecomms. S.à.r.l., 790 F.3d 411, 427 (2d Cir. 2015) (Sack, J., concurring), we conclude that Article III is satisfied in this case.
1. Our Precedent Does Not Require Application of the Nullity Doctrine
Our court has touched on the nullity doctrine in only a few published decisions. The natural starting point is Cortlandt Street Recovery Corp. v. Hellas Telecommunications S.à.r.l., 790 F.3d 411 (2d Cir. 2015). There, the district court determined that an action instituted by a plaintiff that lacked standing was a nullity at inception, and so could not be salvaged through
Despite Cortlandt‘s refusal to decide this issue, subsequent panels have twice cited Cortlandt in support of dicta suggesting that the nullity doctrine is the law of the Circuit. See Klein, 906 F.3d at 227 n.7; DeKalb Cnty. Pension Fund v. Transocean Ltd., 817 F.3d 393, 412 & n.121 (2d Cir. 2016). The explanation for this strange leap in law is simple: each of those opinions mistakenly quotes language from Cortlandt as if it were part of Cortlandt‘s holding, when, in fact, it was merely a summary of the district court‘s reasoning that the panel in Cortlandt expressly refused to adopt. Compare Klein, 906 F.3d at 227 n.7, and DeKalb, 817 F.3d at 412 n.121, with Cortlandt, 790 F.3d at 423, and id. at 425–27 (Sack, J., concurring).9 As a
Interestingly, the closest that we have come to adopting the nullity doctrine appears to have been in Isthmian Lines, Inc. v. Rosling, 360 F.2d 926 (2d Cir. 1966), a case that Cortlandt (and the parties here) did not address. That case was a wrongful death suit brought in the name of a widow, both in her individual capacity and in her capacity as administrator of her husband‘s estate. As it turned out, the widow had herself died before the complaint was filed, and it was her daughter who was actually the administrator of the decedent‘s estate. We ultimately permitted the daughter to amend the complaint to name herself as administrator, but only because the estate (unlike the widow) was “alive” at the time the complaint was filed:
[The pleading] was captioned in the alleged name of the Administratrix of the Estate of Charles Richard Washington as well as herself “individually,” although this latter status was a nullity because of her prior decease. The respondent thus had notice that the “Estate” was suing and notice of the facts upon which the claim was based. Although “a proceeding begun in the name of a deceased plaintiff is a nullity” (Karrick v. Wetmore, 22 App.D.C. 487 [(D.C. Cir. 1903]), the Estate here was not deceased. . . . [T]he situation was that of an Estate suing which did not have a then-appointed administrator.
To be sure, this opinion offers some support for the nullity doctrine. But it is not binding on us: the nullity point was mere dicta because the estate‘s standing to bring the claim independently supported the holding. And when assessed on its own terms, Isthmian Lines is not particularly persuasive as it effectively begins and ends its nullity analysis with a quote from Karrick v. Wetmore, a D.C. Circuit decision from 1903. Karrick, in turn, relied primarily on state court and English court opinions, and the Supreme Court‘s decision in Harter v. Twohig, 158 U.S. 448, 454 (1895), which itself focused on Nebraska state law, not the demands of
Thus, whether to adopt the nullity doctrine is still an open question in our Circuit.
2. Article III Does Not Require the Nullity Doctrine
The central conceit of the nullity doctrine is that an action commenced in the name of a plaintiff who lacks Article III standing is rendered an incurable nullity even where a real party in interest both has standing and is willing to join the suit. That foundational view is immediately suspect given its tension with how pleading requirements have evolved over time.
At early common law, courts of law recognized only those plaintiffs whose legal rights had been affected by the act of the defendant, a group into which courts determined assignees did not fall. See Charles E. Clark & Robert M. Hutchins, The Real Party in Interest, 34 Yale L.J. 259, 259–60 (1925) (hereinafter, “Clark, Real Party in Interest“); Wright & Miller § 1545. Perhaps because cases had to be brought in the name of the nominal plaintiff, identifying the party for whose “use” a case was brought was not necessary. See Clarksons v. Doddridge, 55 Va. 42, 46 (1857) (“It is usual, when an action is brought in the name of one person for the use of another, to state the fact . . . . But this is not necessary. The statement is no material part of the pleadings.“); see also United States v. Abeel, 174 F. 12, 19 (5th Cir. 1909) (“[A] suit for the breach can[] be maintained by the United States
Eventually, jurisdictions began to abandon this approach in favor of “code pleading.” Clark, Real Party in Interest at 259. Under this new pleading formulation, cases could “be prosecuted in the name of the real party in interest,” which was defined to be the assignee and not the assignor. Id. at 259, 264. But jurisdictions split on whether proceeding in the name of the assignor was still permitted. In some, only the assignee (that is, the real party interest) could bring suit. Id. at 261 (explaining that the “[t]he express language of the [New York] Code was that [nearly] every action must be prosecuted in the name of the real party in interest” (internal quotation marks and footnote omitted)); id. at 266 (noting that “[t]he real party in interest provision is . . . properly construed in most states as imperative; the assignee and he alone may sue“). In others, it was up to the real party in interest to choose between suing in its own name or in the name of the assignor. Id. at 264–66; see also Carozza v. Boxley, 203 F. 673, 677 (4th Cir. 1913) (noting that “suit may be brought in one of three ways – in the name of the original obligee or payee, in his name for the use of the assignee, or in the name of the assignee alone“); Roland F. Johnson, Equity – Assignment of Choses In Action – Suit In Whose Name, 17 Tex. L. Rev. 183, 185 (1939) (explaining that in Merlin v. Manning, 2 Tex. 351 (1847), the Texas Supreme Court made clear that an “assignee could sue either in his own name or in the name of his assignor” (emphasis added)). In adopting
This evolution of pleading practices suggests two things. First, the rule concerning which party‘s name a case must be prosecuted under (either the nominal plaintiff or the real party in interest) is non-jurisdictional. After all, if it were jurisdictional, it‘s not clear how it could be changed over time without offending the
Second, if we can alter the party in whose name a case must be prosecuted without offending
Sec. Fund. v. Cont‘l Assur. Co., 700 F.2d 889, 893 (2d Cir. 1983) (explaining that
The thornier question is whether a complaint filed in the name of a non-existent entity, on behalf of an unidentified real party in interest, meets the requirement that “the party invoking jurisdiction ha[ve] the requisite stake in the outcome when the suit [i]s filed.” Davis v. FEC, 554 U.S. 724, 734 (2008); see also Lujan, 504 U.S. at 570 n.5 (explaining that “standing is to be determined as of the commencement of suit“). Although it may not seem immediately intuitive, we conclude that the answer is “yes.”
The real party in interest is the party with the legal title to the claim asserted and is the party with the stake in the controversy that is being used to invoke the court‘s jurisdiction. Why, then, should jurisdiction to hear the controversy turn on whether the nominal plaintiff has standing? That would be nonsensical. Indeed, in other jurisdictional contexts, we often ignore nominal plaintiffs and look only to the party with a real interest in the controversy. See, e.g., St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80–81 (2d Cir. 2005) (recognizing that nominal parties are often ignored for diversity purposes and explaining that this rule has a “rough symmetry” to the real-party-in-interest concept embodied by
Further supporting this view is the fact that joining an assignee does not “substitute a new cause of action over which there is subject-matter jurisdiction for one in which there is not.” Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 161 (2d Cir. 1998). Rather, a real party in interest who has been assigned a claim is the functional equivalent of the original plaintiff – an assignee “step[s] into the shoes of the assignor.” Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d 62, 75 n.12 (2d. Cir. 2013) (internal quotation marks omitted). So even though Fund Liquidation is replacing the Dissolved Funds as the named party, it is prosecuting the Dissolved Funds’ claims. See In re Ace Sec. Corp. RMBS Litig., No. 13-cv-1869 (AJN), 2015 WL 1408837, at *7 (S.D.N.Y. Mar. 26, 2015) (“Here, there is neither a new cause of action nor a new party. Nor would the proposed changes . . . cause the amended complaint to have the characteristics of a new lawsuit. The Trustee is the functional equivalent of the Trust for the purpose of conducting this litigation.” (internal quotation marks omitted)).10
Diversity jurisdiction is one such example. Even if complete diversity – and thus jurisdiction – is lacking at a case‘s inception, rather than dismiss the case as a nullity, the court may drop any dispensable parties that are obnoxious to its jurisdiction. See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 574 (2004); see also E.R. Squibb & Sons, Inc. v. Lloyd‘s & Cos., 241 F.3d 154, 163 (2d Cir. 2001) (explaining that “once subject matter jurisdiction is ‘cured’ by an amendment [speaking about a diversity defect], courts regularly have treated the defect as having been eliminated from the outset of the action“). Cases involving
Of course, the cases cited above concerned sub-constitutional jurisdictional problems. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 n.1 (1989) (acknowledging that complete diversity is a statutory, not constitutional, requirement); Mathews, 426 U.S. at 75 (discussing a statutory condition on jurisdiction). And at least one other Circuit has suggested, albeit without explanation, that whether a jurisdictional defect is of constitutional character might be relevant to determining if it can be cured retroactively. See Yan v. ReWalk Robotics Ltd., 973 F.3d 22, 39 n.6 (1st Cir. 2020) (noting that two of the three panel members “limit their joining in this portion of the opinion on the basis that the standing defect in this case may be viewed as a lack of statutory standing“). But there are some examples of true-blue constitutional defects being cured through procedural rules after a complaint was filed.
For instance, in Northstar Financial Advisors Inc. v. Schwab Investments, the plaintiff filed a class action lawsuit on behalf of investors without owning any shares in the investment fund that it was suing or having obtained an assignment from those investors, meaning that the plaintiff had not suffered an injury when it
The Banks’ primary authority in favor of the nullity doctrine – the Fourth Circuit‘s unpublished decision in House v. Mitra QSR KNE LLC – brings little to the table. To start, House posits that “[o]nly an actual and live plaintiff can assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions.” 796 F. App‘x at 787 (internal quotation marks and alterations omitted). But that role is filled whenever there is a real party in interest ready and willing to join the action.
Next, House points out that
It should also be noted that the approach we adopt today will not result in unchecked abusive practices by plaintiffs.
So, because “the concerns animating a constitutional principle are absent” where an assignee with standing seeks to join an action under
As a result, we conclude that Article III is satisfied by Fund Liquidation‘s standing to bring suit and willingness to join the action under
C. The Case on Remand
Having concluded that the Dissolved Funds’ lack of standing did not render this action an incurable nullity, we agree with Fund Liquidation that the case should be remanded to the district court for further proceedings. Notably, this does not require us to resolve whether Fund Liquidation received a valid assignment from FrontPoint because the district court already concluded that Fund Liquidation received such an assignment from Sonterra.15 See FrontPoint Asian Event Driven Fund, 2018 WL 4830087, at *11. And although Sonterra‘s claims were separately dismissed based on the fund not being an efficient enforcer of antitrust laws, that is a non-jurisdictional dismissal and so a valid case or controversy still exists.16 See Meijer, Inc. v. Ferring B.V. (In re DDAVP Direct Purchaser Antitrust Litig.), 585 F.3d 677, 688 (2d Cir. 2009) (distinguishing Article III standing from antitrust standing).
On remand, then, the district court should reconsider two issues in light of our opinion. First, now that its jurisdiction over the case is clear, the district court should revisit whether to approve the settlement agreements signed by several of the defendants.
Second, the district court should reconsider Fund Liquidation‘s motion to file its proposed fourth amended complaint, which would add the Moon Funds as new representative plaintiffs. Of course, the district court alternatively held that the Moon Funds’ claims were untimely as they were no longer subject to equitable tolling under American Pipe. See Fund Liquidation Holdings, 399 F. Supp. 3d at 104–05. That conclusion, however, was based on an overly expansive reading of the Supreme Court‘s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018).
In China Agritech, the Supreme Court explained that ”American Pipe tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails.” Id. at 1804. “But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.” Id. While the district court (and the Banks) see that language as fatal to any amendment that would add the Moon Funds as representative plaintiffs, it says nothing of the sort. The Supreme Court focused its analysis on follow-on class actions. Id. Nothing in China Agritech purports to say that equitable tolling does not apply to new class representatives joined within the same class action. Indeed, the Seventh Circuit recently reached this precise conclusion:
[Defendant] would read China Agritech much more broadly to prohibit any addition or substitution of a new class representative within the original class action after the statute of limitations period would have run, but for American Pipe tolling. We see no hint in the China Agritech opinion or its reasoning that would support this proposed extension. American Pipe tolling is intended to promote efficiency and economy in litigation. Prohibiting its use within the original class action to add new class representatives, whether because they would be better representatives, because class definitions are modified, because subclasses are needed, or for any other case-management reason, would arbitrarily – even randomly – undermine those goals of efficiency and economy. . . . Plaintiffs here sought only to rearrange the seating chart within a single, ongoing action. What they proposed amounted to an ordinary pleading amendment governed by
Federal Rule of Civil Procedure 15 .
Carpenters Pension Tr. Fund for N. Cal. v. Allstate Corp. (In re Allstate Corp. Sec. Litig.), 966 F.3d 595, 615–16 (7th Cir. 2020) (internal citations omitted). Accordingly, so long as the amendment to add the Moon Funds as class representatives satisfies the requirements of
For the foregoing reasons, we VACATE the judgment of the district court and REMAND the case for further proceedings. Should any future appeal ensue related to whether Fund Liquidation may file its proposed fourth amended complaint, or whether that fourth amended complaint states a claim on which relief can be granted, any party may restore our jurisdiction pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in which event the appeal will be referred to this panel.