Opinion
Plaintiffs in the above-captioned cases are investors who opted out of the class and settlement in In re American International Group, Inc. 2008 Securities Litigation, No. 08-CV-4772 (the “Class Action”) and, at various times, filed individual actions for damages against the Defendants
Like the Class Action, the Individual Actions assert a combination of claims for alleged violations of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b), and Rule 10-b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5; Section 20(a) of the Exchange Act, 15 U.S.C. § 78t — 1; Section 11 of the Securities Act of 1933 (“Securities Act”); Section 12(a)(2) of the Securities Act; Section 15 of the Securities Act; and various state common law causes of action for fraud and unjust enrichment.
Pending before the Court are several motions to dismiss claims asserted in the Individual Actions, including a joint omnibus motion to dismiss (“Omnibus Motion”),
(a) Plaintiffs’ Securities Act claims are wholly barred by the three-year statute of repose established- by Section 13 of the Securities Act;
(b) Plaintiffs’ Exchange Act claims are wholly or partially barred by the five-year statute of repose established by 28 U.S.C. Section 1658(b);
(c) Plaintiffs’ state common law claims are precluded by the Securities Litigation Uniform Reform Act (“SLUSA”); alternatively, such claims are not pleaded with the particularity required by Federal Rule of Civil Procedure 9(b) or fail to state valid claims for relief on state law grounds;
(d) Individual defendants Joseph Cassa-no and Andrew Forster were not the “makers” of certain alleged misstatements, and claims against them based on statements issued by AIG or made’ by other-individuals should be dismissed.
I.
Background
On September 16, 2008, the U.S. federal government announced an $85 billion bailout of AIG, and AIG’s shares dropped 46 percent the following day. On May 21, 2008, a class action complaint was filed against certain of the Defendants on behalf of investors who had purchased or otherwise acquired securities issued by AIG from May 11, 2007 to May 9, 2008. Several other class action complaints followed and on March 20, 2009, this Court issued an order consolidating the AIG securities actions as In re American Securities Group, Inc. Securities Litigation, Master File No. 08 CV 4772(LTS)(KNF), and appointing the lead plaintiff and co-lead counsel. On May 19, 2009, the lead plaintiff in the Class Action filed a Consolidated Class Action Complaint (“CCAC”) on behalf of a putative class of “all persons or entities (a) who purchased AIG common stock or other securities that traded on a U.S. public exchange during the Class Period [March 16, 2006, to September 16, 2008,] or (b) who purchased or acquired securities in or traceable to a public offering by AIG during the Class Period, and who suffered damages as a result.” (CCAC ¶ 72.) Plaintiffs in the Individual Actions, as alleged purchasers of AIG securities from March 16, 2006, to September 16, 2008, were members of the putative class in AIG 2008 Sec. Litig.
On October 7, 2014, this Court provisionally certified the class, for the-purpose of settlement only, and entered an order preliminarily approving the proposed settlement. On March 20, 2015, the Court entered a judgment and order granting final approval of the settlement and certifying a settlement class consisting of all persons (a) who purchased AIG securities on an U.S. public exchange during the settlement class period or (b) who purchased or acquired AIG securities in or traceable to a public offering during the settlement class period. Plaintiffs in the instant actions chose to opt out of the class settlement, and filed individual suits for damages between November 18, 2011 and February 9, 2015.. The following table identifies the date on which each of the Individual Actions was commenced:
Case_Date Filed_
Kuwait_November 18. 2011
Illinois Teachers_Mav 17.2013_
UC Regents_August 6. 2013
GIC_September 16. 2013
Lord Abbett_February 2, 2015
GE Pension_February 9. 2015
As noted above, the complaints in the Individual Actions substantially mirror the allegations in the consolidated Class Action complaint; a brief summary is provided below for the purpose of the instant motions.
Around 2004, AIG began writing CDSs on complex multi-sector collateralized debt obligations (“CDOs”), which often packaged together 100 or more securities, each backed by pools of mortgages, auto loans, or credit card receivables. During 2005, AIG allegedly ramped up its writing of CDSs and increasingly concentrated its portfolio on U.S. residential mortgage loans, but the Company’s oversight of AIGFP and the CDS business diminished. Under the direction of AIG’s CEO, Defendant Martin Sullivan, many risk controls were allegedly weakened or eliminated.
At the same time, AIGFP President Defendant Joseph Cassano allegedly ran AIGFP so as to insulate it from oversight.
Defendants’ alleged fraud began on March 16, 2006, when AIG represented in its 2005 Form 10-K, with respect to CDS
AIGFP became an operating subsidiary of AIG in 1993.
With the exception of the complaint in Illinois Teachers, the Individual Complaints also allege that Cassano and Forster were part of a group of “Executive Defendants,” who, by virtue of their executive positions and involvement in day to day operations, had. the ability to influence
The complaint in Illinois Teachers alleges, in relevant part, that (1) Cassano excluded an accountant tasked to identify material weaknesses in AIG’s internal controls from valuation of certain CDSs
II.
Discussion
In deciding a motion to dismiss, the Court assumes the truth of the well-pleaded factual allegations contained in the Individual Complaints. See Bell Atl. Corp. v. Twombly,
A. Timeliness of Plaintiffs’ Federal Claims
Section 13 of the Securities Act provides that “[i]n no event shall ... any action be brought to enforce a liability created under section 11 ... more than three years after the security was bona fide offered to the public[.]” 15 U.S.C.S. § 77m (LexisNexis 2012). The Exchange Act provides that “a private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of ... the securities laws ... may be brought not later than the earlier of (1) 2 years after the discovery of facts constituting the violation; or (2) 5 years after such violation.” 28 U.S.C.S. § 1658(b) (LexisNexis 2014).
Defendants, relying principally on the Second Circuit’s decision in Police & Fire Ret: Syst. of Detroit v. IndyMac MBS, Inc.,
Statutes of repose are different from statutes of limitations. The Second Circuit explained iñ IndyMac:
Statutes of limitations limit the availability of remedies and, accordingly, may be subject to equitable considerations, such as tolling, or a discovery rule. In contrast, statutes of repose affect the underlying right, not just the remedy, and thus they run without interruption oncethe necessary triggering event has occurred, even if equitable considerations would warrant tolling or even if the plaintiff has not yet, or could have not yet have, discovered that she has a cause of action.
IndyMac,
At the center of the parties’ respective arguments concerning the effect, if any, of the Class Action on the statutes of repose is disagreement over the applicability of the Supreme Court’s decision in American Pipe & Constr. Co. v. Utah,
1. American Pipe Tolling and Indy-Mac
In American Pipe, the State of Utah brought a putative antitrust class action and the court, while finding most requisites of Federal Rule of Civil Procedure 23 satisfied, denied class certification on the grounds of failure to meet the numerosity requirement.
In IndyMac, the lead plaintiff in a putative securities class action asserted certain claims related to securities it did not purchase on behalf of a putative class that included members who had purchased the securities.
The Second Circuit rejected the argument, specifically addressing the question of whether the American Pipe principle— treating the filing of a class action as an event tolling the running of a statute of limitations — can properly be applied to the statute of repose under Section 13 of the Securities Act. First, the IndyMac Court recognized that a statute of limitations governs the period in which plaintiffs are permitted to pursue their cause of action and is subject to tolling on equitable grounds. Id. at 106. By contrast, the court found that a statute of repose “creates a substantive right in those protected to be free from liability after a legislatively-determined period of time,” and is subject only to “legislatively-created exceptions” and not to equitable tolling. Id. Because the American Pipe Court had discussed both judicial equitable powers and Federal Rule of Civil Procedure 23 in reaching its holding that the filing of the class action tolled the statute of limitations, the Second Circuit addressed the question of whether Rule 23 creates a viable legislative exception to the statute of repose. The IndyMac Court answered this question in the negative, holding that any extension of the statute of repose by virtue of the class action procedural vehicle under the Rule 23 would constitute the “abridge[ment], enlargement], or modification] of a substantive right” — specifically, the right of defendants to be free from suit post the repose period — and would therefore be barred by the Rules Enabling Act, 28 U.S.C. § 2072(b). Id. at 109. Accordingly, the IndyMac Court reached the “straightforward” conclusion that “American Pipe’s tolling rule, whether grounded in equitable authority or on Rule 23, does not extend to the statute of repose in Section 13” of the Securities Act. Id.
IndyMac’s reasoning that the statutes of repose present an absolute bar against suit absent legislatively created exceptions is consistent with Supreme Court precedent concerning the nature and effect of statutes of repose. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, the Supreme Court held that, because the purpose of the statute of repose under Section 13 is “clearly to serve as a cutoff,” it is “inconsistent with tolling.”
Plaintiffs, nonetheless, contend that the statutes of repose do not bar any of their claims because: the IndyMac decision does not preclude American Pipe tolling under the circumstances of this case; In-dyMac was wrongly decided; or they need not resort to tolling at all because their claims were actually asserted in a timely fashion by the Class Action. Plaintiffs’ arguments are unavailing.
Certain of the Plaintiffs argue that they are not invoking a tolling doctrine at all but, rather, relying on Rule 23 for the proposition that the filing of the Class Action serves as the operative date for the commencement of their Individual Actions. Although there is some colorable basis for such an interpretation of the rule in American Pipe, neither that decision nor the Second Circuit’s construction of the Rules Enabling Act permits Plaintiffs to evade the statute of repose in this fashion. In American Pipe, the Supreme Court stated that, where a class action was certified, “the claimed members of the class stood as parties to the suit until and unless they received notice thereof and chose not to continue. Thus, the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs.”
Plaintiffs also essay a constitutional argument, invoking Wal-Mart Stores, Inc. v. Dukes,
Plaintiffs also assert that IndyMac was wrongly decided and that this Court should, like the Tenth Circuit in Joseph v. Wiles, hold that American Pipe tolling was legal in nature and thus not foreclosed by the Lamp/ rule that statutes of repose cannot be equitably tolled. See
2. Computation and Application of the Statute of Repose
Defendants argue that all of Plaintiffs’ Securities Act claims are untimely because all were commenced more than three years after the last relevant securities offerings. Plaintiffs’ response focuses solely on the foregoing arguments regarding American Pipe and IndyMac. As to the Exchange Act claims, Plaintiffs further argue that, even if the statute of repose was running during the pendency of the Class Action, Plaintiffs’ Exchange Act claims should be deemed timely to the extent their actions were commenced within five years (or, if greater, the period provided under an applicable tolling agreement) of September 16, 2008, the date on which the alleged fraud ended. In this regard, Plaintiffs focus on Section 1658(b)’s use of the term “violation” in identifying the point from which the statute of repose runs,
a. Application to Plaintiffs’ Claims Under the Securities Act
Section 13 of the Securities Act provides that “[i]n no event shall ... any action be brought to enforce a liability created under section 11 ... more than three years after the security was bona fide offered to the public[.]” 15 U.S.C.S. § 77m (LexisNexis 2012).
b. Application to Plaintiffs’ Claims Under the Exchange Act
Plaintiffs’ Exchange Act Claims are barred entirely or in part by the five-year statute of repose set forth in 28 U.S.C. Section 1658(b), which provides that “a private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of ... the securities laws ... may be brought not later than the earlier of (1) 2 years after the discovery of facts constituting the violation; or (2) 5 years after such violation.” Id. (LexisNexis 2014); see also Merck,
Defendants assert, and Plaintiffs do not dispute, that the last of the alleged misrepresentations identified in any of the Individual Complaints is a statement made by Steven Bensinger, Executive Vice President and CFO of AIG at the time, during an August 7, 2008 analyst call. (See Pis.’ Omnibus Opp’n 10.) Thus, because the statute of repose runs from the date of each relevant misstatement or omission, the Exchange Act claims asserted in GIC complaint must be dismissed in its entirety and the Exchange Act claims asserted in the remaining Individual Complaints must be dismissed to the extent the claims are based on misstatements or omissions made more than five years before the respective filing dates.
While IndyMac squarely foreclosed tolling with respect to Section 13’s statute of repose, there is some division among the courts in this Circuit as to whether the continuing violation doctrine applies in determining what constitutes a violation of Section 10(b) and Rule 10b-5 for purposes computing the statute of repose under Section 1658(b)(2). Compare In re Beacon Assocs. Litig.,
Plaintiffs’ attempts to read the continuing violations doctrine into the applicable statutory language as a way to avoid Lampf and IndyMac are ungrounded. Plaintiffs merely suggest that “violation,” as used in Section 1658(b)(2), should be interpreted to encompass the series of misstatements and omissions made as part of a scheme. This interpretation, however, is unsupported by the plain language of the statute. Indeed, cases that have applied the continuing violations doctrine in the context of a statute of repose have not rested on interpretation of the language of Section 1658(b)(2).
Thus, all Exchange Act claims based on misstatements and/or omissions prior to the repose date listed in the chart below are dismissed as untimely under Section 1658(b)(2) in each of the Individual Actions as follows:
Case_Date Filed_Repose Date_
Kuwait_November 18.2011 November 18.2006
Illinois Teachers May 17, 2013_May 17, 2008_
UC Regents_August 6, 2013_August 6, 2008
GIC_September 16, 2013 September 16,2008
Lord Abbett_February 2, 2015 February 8, 200831
GE Pension_February 9, 2015 May 26.200732
B. Motions of Defendants Cassano .and Forster to Dismiss Federal Claims Against Them
Individual defendants Joseph Cassano and Andrew Forster move separately to dismiss the Individual Complaints as against them, arguing that Plaintiffs’ federal claims are untimely in whole or in part and that, under the principles enunciated by the Supreme Court in Janus Capital Group, Inc. v. First Derivative Traders,
As explained above, Defendants’ statute of repose arguments are well taken; Plaintiffs’ complaints are dismissed against all Defendants to the extent their federal claims are untimely. The Court, accordingly, addresses Defendants’ argument that Cassano and Forster cannot be held liable for any timely claims that are based on statements that they did not make directly. For the reasons that follow, the remaining timely federal claims asserted against Forster and Cassano in the Individual Complaints will be dismissed in part.
Cassano and Forster principally argue that they are officers of AIG’s subsidiary, AIGFP, and that the Individual Complaints fail to state claims against them based on statements issued by AIG because they do not allege facts indicating that Cassano and Forster had ultimate authority over the content of AIG’s allegedly fraudulent financial and corporate statements. Cassano and Forster point to Janus Capital, in which the Supreme Court, upholding the dismissal of a complaint, held that a limited liability company that was the adviser and administrator of a separately-owned and established mutual investment fund could not be held primarily liable for alleged misstatements and omissions in the disclosures issued by the fund. In so doing, the Court stated that:
For purposes of Rule 10b-5, the maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it. Without control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right. One who prepares or publishes a statement on behalf of another is not its maker.
A broader reading of ‘make,’ including persons or entities without ultimate control over the content of a statement, would substantially undermine Central Bank. If persons or entities without control over the content of a statement could be considered primary violators who ‘made’ the statement, then aidors and abettors would be almost nonexistent.
Janus Capital,
While not disputing that they would ultimately have to demonstrate that Cassano and Forster played controlling roles in any AIG statements for which Plaintiffs seek to hold them liable, Plaintiffs invoke the group pleading doctrine to defend the sufficiency of the Individual Complaints in this regard.
The group pleading doctrine “permit[s] plaintiffs, for pleading purposes only, to rely on a presumption that statements in prospectuses, registration statements, annual reports, press releases, or other group-published information, are the collective work of those individuals with direct involvement in the everyday business of the company.” In re BISYS Sec. Litig.,
Both the group pleading doctrine and Janus Capital require scrutiny of the level of control a particular defendant had over the entity making the statements. Plaintiffs argue that their complaints are sufficient in this regard because both Cassano and Forster were in charge of the AIG subsidiary that was at the center of the alleged misconduct. However, while the Individual Complaints allege plausibly that Cassano and Forster had control over the business activities of AIGFP and the degree to which information regarding AIGFP was accessible to scrutiny by AIG, their allegations regarding control over statements issued in the name of AIG are conclusory at best. Further undermining any reasonable inference that Cassano and Forster actually exercised control over AIG’s determinations as to what to say and how to say it is Plaintiffs’ practice of lumping the two AIGFP officers together with AIG executives in a group of “Executive” or “Officer” Defendants who allegedly controlled AIG’s statements and information flow.
The group pleading doctrine derives from the notion that those in control of a particular entity are likely to control its speech. See In re BISYS,
Accordingly, the dismissal motions of Cassano and Forster are granted to the extent that they are directed to Plaintiffs’ Exchange Act claims based on statements issued by AIG, for failure to state plausibly a claim that Cassano and Forster were “makers” within the meaning of Section 10(b) and Rule 10b-5 of any allegedly fraudulent statements issued by AIG.
C. Impact of SLUSA on State Common Law Claims
Defendants seek dismissal of the state common law claims asserted in the QIC, UC Regents, and Lord Abbett actions as precluded by the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. §§ 77p and 78bb (“SLUSA”). SLUSA provides in pertinent part:
No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging — (1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or (2) 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.S § 77p(b)(l) (LexisNexis 2012); see also 15 U.S.C.S. § 78bb(f)(l) (Lexis-Nexis 2008). SLUSA thus precludes state-law claims asserted in: (1) a “covered class action;” (2) based on state law; (3) in which the plaintiff alleges either a “misrepresentation or omission of a material fact” or “any manipulative or deceptive device or contrivance;” (4) “in connection with the purchase or sale of a covered security.” See id.; Dacey v. Morgan Stanley Dean Witter & Co.,
Plaintiffs argue that the Individual Actions are not “covered class aetion[s]” within the meaning of SLUSA. For the reasons that follow, the Court finds that SLUSA applies to Plaintiffs’ state common law claims, and Defendants’ motions to dismiss Plaintiffs’ state common law claims are granted.
The only issue disputed here is whether the instant opt-out lawsuits constitute a “covered class action” under the meaning of SLUSA.
In Ventura, the court held that the plaintiffs state law claims were not precluded by SLUSA because the lawsuit was not a “covered class action.”
III.
Conclusion
For the foregoing reasons, Defendants’ motions to dismiss in part are granted. The Clerk of the Court is directed to enter this Opinion on the docket of each of the above-captioned cases. Separate orders with reference to this Opinion will be entered on each relevant docket, specifying the dismissed claims and resolving the relevant docket entries.
Notes
. Defendants in the Individual Actions, as in the Class Action, comprise American International Group, Inc. (“AIG” or the "Company”), various current or former AIG executives, directors ("Individual Defendants”), accountants and underwriters. See In re American Int’l Grp., Inc. 2008 Sec. Litig.,
. The pending Individual Actions are: Kuwait Investment Authority v. AIG, Inc. et al., No. 11-CV-8403 ("Kuwait ”); Teachers Retirement System of the State of Illinois v. AIG, et al., No. 13-CV-3377 ("Illinois Teachers”); GIC Private Ltd. v. AIG, Inc., No. 13-CV-6565 ("GIC”); Regents of the University of California v. AIG, Inc., et al., No.. 14-CV-1270 ("UC Regents ”); General Electric Pension Trust, et al. v. AIG, Inc., et al, - No. 15-CV-957 ("GE Pension ”); Lord Abbett Affiliated Fund, Inc. et al. v. AIG, Inc. et al, No. 15-CV-0774 ("Lord Abbett ”).
. Not every type of claim is asserted in each Individual Action.
. The pending motions are as follows: (1) Defendants’ omnibus motion to dismiss in Kuwait, Illinois Teachers, GIC, and UC Regents; (2) Joseph Cassano and (3) Andrew Forster’s separate motions to dismiss on statute of repose and not “maker” of misstatements grounds in Kuwait, Illinois Teachers and UC Regents; (4) Defendants’ joint motion to dismiss on Securities Litigation Uniform Reform Act (“SLUSA”) and failure to state a claim grounds in UC Regents, Dkt. No. 46; (5) AIG’s motion to dismiss on SLUSA and state law grounds in GIC, Dkt. No. 22; (6) AIG’s motion to dismiss on statute of repose grounds in GE Pension, Dkt. No. 19; (7) Defendants' joint motion to dismiss on statute of repose, SLUSA, and state law grounds in Lord Abbett, Dkt. No. 27; (8) Defendant Forster’s motion to dismiss on statute of repose and not “maker” of misstatements grounds in Lord Abbett, Dkt. No. 33; and (9) Defendant Cassa-no’s motion to dismiss on statute of repose and not "maker” of misstatements grounds in Lord Abbett, Dkt. No. 30.
. The alleged facts are drawn from the Individual Complaints and/or the Plaintiffs' Omni
.See Kuwait Am. Compl. ¶¶ 24, 97, 122-34, 146; UC Regents Compl. ¶¶ 9, 18, 215; Lord Abbett Compl. ¶¶ 8, 18, 114. See also Illinois Teachers Compl. ¶¶ 12, 151, 268.
. See e.g., Kuwait Am. Compl. ¶¶ 24, 122-34, 452; UC Regents, ¶¶ 18, 215, 243, 317, 348; Lord Abbett Compl. ¶¶ 138, 219, 462-63. See also Illinois Teachers Compl. ¶¶ 12, 151, 268.
. See e.g., Kuwait Am. Compl. ¶¶ 25, 97; UC Regents Compl. ¶¶ 9, 243, 317, 348, 425; Lord Abbett Compl. ¶¶ 28, 236, 321, 447.
. See Kuwait Am. Compl. ¶ 369; UC Regents Compl. ¶ 582; Illinois Teachers Compl. ¶ 204; GIC Compl. ¶ 380.
. Kuwait Am. Compl. ¶¶ 5-6; Illinois Teachers Compl. ¶ 69; UC Regents Compl. ¶ 5; Lord Abbett Compl. ¶ 4.
. Kuwait Am. Compl. ¶ 44; Illinois Teachers Compl. ¶ 56; UC Regents Compl. ¶ 39; Lord Abbett Compl. ¶ 41.
. Kuwait Am. Compl. ¶ 96; UC Regents Compl. ¶ 96; Lord Abbett Compl. ¶ 110.
. Kuwait 'Am. Compl. ¶ 45; Illinois Teachers Compl. ¶ 57; UC Regents Compl. ¶ 40; Lord Abbett Compl. ¶ 42.
. Kuwait Am. Compl. ¶¶ 98, 451; UC Regents Compl. ¶¶ 98; Lord Abbett Compl. ¶ 112.
. Kuwait Am. Compl. ¶ 44; Illinois Teachers Compl. ¶¶ 56, 339; UC Regents Compl. ¶ 39; Lord Abbett Compl. ¶ 41.
. Kuwait Am. Compl. ¶ 44; Illinois Teachers Compl. ¶¶ 56, 339; UC Regents Compl. ¶¶ 328, 470; Lord Abbett Compl. ¶ 41.
. See Kuwait Am. Compl. ¶¶ 517-520; UC Regents Compl. ¶¶ 529, 531; Lord Abbett Compl. ¶¶ 531, 533; see also Illinois Teachers Compl. ¶¶ 60, 366.
. See, e.g., Kuwait Am. Compl. ¶¶ 101, 445; UC Regents Compl. ¶¶95, 101, 453, 455; Lord Abbett Compl. ¶ 463.
. See Kuwait Am. Compl. ¶ 452; UC Regents Compl. ¶¶ 439, 460; Lord Abbett Compl. ¶ 468.
. See, e.g., Kuwait Am. Compl. ¶¶ 24-25, 97, 122-34, 146; UC Regents Compl. ¶¶ 18, 95, 97, 215, 439, 454; Lord Abbett Compl. ¶¶ 462, 465, 463.
. See, e.g., Kuwait Am. Compl. ¶¶ 24, 25, 97, 122-34, 146, 412; UC Regents Compl. ¶¶ 9, 18, 100, 146, 215, 317, 454; Lord Abbett Compl. ¶¶ 8, 18, 133-141, 462.
. See, e.g., Kuwait Am. Compl. ¶¶ 23, 97, 146; UC Regents Compl. ¶¶ 232, 243; Lord Abbett Compl. ¶¶ 8, 18, 219, 447.
. See, e.g., Illinois Teachers Compl. ¶¶ 12, 135, 219, 244, 268-93.
. Illinois Teachers Compl. ¶ 60.
.Id. ¶ 186.
. Two of the Plaintiffs, Lord Abbett and GE Pension, filed their complaints more than five years after September 16, 2008, and thus their Exchange Act claims would not be timely even if the statute of repose had not started running until after the fraud allegedly ended.
. The statute of repose applicable to the Exchange Act claims prohibits the commencement of a private action involving a claim of fraud in contravention of a regulatory requirement concerning the securities laws more than “5 years after such violation.” 28 U.S.C.S. § 1658(b) (LexisNexis 2014).
. The three-year statute of repose likewise applies to bar any claims made pursuant to Section 12 of the Securities Act "more than three years after the sale.” Id.
. Although the complaints in Lord Abbett and GE were filed more than five years after September 16, 2008, the defendants in each case had entered into tolling agreements. See infra pages 808-09 n. 31, 32.
.The court in Kaplan v. S.A.C. Capital Advisors, L.P.,
. The Lord Abbett Plaintiffs entered into a tolling agreement with AIG effective January 10, 2013, which ended on January 4, 2015. Because twenty-nine days passed between the end of the tolling agreement and the filing of the complaint in Lord Abbett, the relevant repose date is February 8, 2008.
. The GE Pension Plaintiffs entered into a tolling agreement with AIG effective March 19, 2012, which ended on March 19, 2014. The parties entered into another tolling agree
. Plaintiffs are not precluded from using the time-barred misstatements and/or omissions as evidentiary support for any timely claims.
. Plaintiffs do not dispute that their claims against Cassano and Forster based on oral statements by other individuals should be dismissed. (See Pis’ Ominibus Memo, of Law in Opp. to Def. Joseph Cassano’s Mot. to Dismiss 12 n. 47.)
. It is undisputed that the Individual Actions and the Class Action seeks relief on behalf of more than 50 persons and that AIG stock is a "covered security.” With the exception of a frail attempt by the plaintiff in UC Regents to demonstrate that an unjust enrichment claim seeking the recovery of stock drop damages occasioned by misrepresentations for which individuals and AIG received allegedly excessive compensation is not a fraud claim, Plaintiffs also do not dispute that they have made state law claims that have alleged misrepresentations and omissions of material facts in connection with the purchase or sale of a covered security. Indeed, Plaintiffs’ state law causes of action expressly incorporate the allegations underlying their federal securities fraud causes of action, which all rest on the alleged misrepresentations Defendants made with respect to AIG’s subprime mortgage risk exposure.
. Kuwait and Illinois Teachers are subject to Case Management Order No. 1, dated January 30, 2013, as amended by the memo-endorsed letter of Robert F. Carangelo, dated May 30, 2013 ("CMO No. 1”). GIC is subject to two separate case management orders, both dated November 25, 2015, which are substantially similar to CMO No. 1. On November 21, 2014, Magistrate Freeman entered Omnibus Case Management Order No. 2 ("CMO No. 2”), which governs all above actions and UC Regents. Lord Abbett is subject to a stipulation and consent order (Dkt. No. 35), which referenced CMO No. 2 and similarly precluded Defendants to move to dismiss on basis previously rejected in the Class Action.