United States District Court, District of Columbia
Wendu Mekbib, Law Offices of Wendu Mekbib, Vienna, VA, for Plaintiff.
Christian R. Bartholomew, Weil, Gotshal & Manges, LLP, Peter Coyne Thomas, Simpson Thacher & Bartlett, LLP, Washington, DC, Evert J. Christensen, Robert F. Carangelo, Weil, Gotshal and Manges, LLP, New York, NY, for Defendant.
RUDOLPH CONTRERAS, District Judge.
Kathryn Lynn Campbell has brought this suit against the American International Group, Inc. (" AIG" ) and its board of directors, on behalf of herself and similarly situated holders of Equity Units issued by AIG. Ms. Campbell alleges that AIG and its directors have breached their covenant of good faith and fair dealing under both Delaware and New York law, and that they have done so in bad faith and unjustly enriched themselves, both in violation of Delaware law. She does not allege a federal cause of action, nor does she argue that this court has diversity jurisdiction over her state law claims.
The defendants have moved to dismiss her suit for lack of subject matter jurisdiction. Ms. Campbell argues that this court has jurisdiction over her state law claims by virtue of 15 U.S.C. §§ 77p and 78bb(f), as well as 28 U.S.C. §§ 1331, 1337, 1367(a), and 1391(b).
In 1995, Congress passed the Private Securities Litigation Reform Act, 109 Stat. 737 (codified at 15 U.S.C. §§ 77z-1 and 78u-4), which " targeted ‘ perceived abuses of the class-action vehicle in litigation involving nationally traded securities,’ and put limits on federal securities class actions." Kircher v. Putnam Funds Trust, 547 U.S. 633, 636, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (quoting Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 81, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006)). That legislation,
had an unintended consequence: It prompted at least some members of the plaintiffs' bar to avoid the federal forum altogether. Rather than face the obstacles set in their path by the Reform Act, plaintiffs and their representatives began bringing class actions under state law, often in state court. The evidence presented to Congress during a 1997 hearing to evaluate the effects of the Reform Act suggested that this phenomenon was a novel one; state-court litigation of class actions involving nationally traded securities had previously been rare. To stem this " shif[t] from Federal to State courts" and " prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives of" the Reform Act, Congress enacted [the Securities Litigation Uniform Standards Act of 1998, 112 Stat. 3227].
Dabit, 547 U.S. at 82, 126 S.Ct. 1503 (quoting Uniform Standards Act, §§ 2(2), (5), 112 Stat. 3227) (citations omitted).
The Uniform Standards Act " amends ‘ in substantially identical ways' both the Securities Act of 1933, 48 Stat. 74, and the Securities Exchange Act of 1934, 48 Stat. 881." Kircher, 547 U.S. at 637 n. 3, 126 S.Ct. 2145 (quoting Dabit, 547 U.S. at 82 n. 6, 126 S.Ct. 1503) (citation omitted). For ease of reference, the court will rely exclusively on the amendments to the Securities Act of 1933. Cf. Kircher, 547 U.S. at 637 n. 3, 126 S.Ct. 2145; Dabit, 547 U.S. at 82 n. 6, 126 S.Ct. 1503. Those amendments begin by declaring that, as a general matter, " the rights and remedies provided by this title shall be in addition to any and all other rights and remedies that may exist at law or in equity." 112 Stat. 3227-28 (codified at 15 U.S.C. § 77p(a)). The Uniform Standards Act does not limit the availability of state law remedies " [e]xcept as provided in subsection (b)," id. at 3227 (codified at 15 U.S.C. § 77p(a)), its " preclusion provision," Kircher, 547 U.S. at 636, 126 S.Ct. 2145.
Subsection (b) " provides that private state-law ‘ covered’ class actions alleging untruth or manipulation in connection with the purchase or sale of a ‘ covered’ security may not ‘ be maintained in any State or Federal court.’ " Id. (quoting 112 Stat. 3228 (codified at 15 U.S.C. § 77p(b))); see also id. at 637, 126 S.Ct. 2145 (defining " covered class action" as " a lawsuit in which damages are sought on behalf of more than 50 people" and " covered security" as " one traded nationally and listed on a regulated national exchange" ); Atkinson v. Morgan Asset Mgmt., Inc., 658 F.3d 549, 552 (6th Cir.2011) (The Uniform Standards Act " precludes claimants from filing class actions that (1) consist of more than fifty prospective members; (2) assert state-law claims; (3) involve a nationally-listed security; and (4) allege ‘ an untrue statement or omission of a material fact in connection with the purchase or sale of’ that security." (quoting 15 ...