Fischer v. International Telephone Tel. Corp.

10 Citing cases

  1. P. Stolz Family Partnership L.P. v. Daum

    355 F.3d 92 (2d Cir. 2004)   Cited 199 times
    Holding that "the misrepresentation of present or historical facts cannot be cured by cautionary language"

    na fide offered to the public"); Sowell, 1987 WL 10712, at *8 (accepting first-offered test without discussion); Waterman v. Alta Verde Indus., Inc., 643 F.Supp. 797, 808 (E.D.N.C. 1986) (adopting first-offered test based on weight of authority); In re National Mortgage Equity Corp. Mortgage Pool Certificates Sec. Litig., 636 F.Supp. 1138, 1167 (C.D.Cal. 1986) (same); Slagell v. Bontrager, 616 F.Supp. 634, 636-37 (W.D.Pa. 1985) (adopting first-offered test for § 12(a)(1) violations involving unregistered securities); Morley v. Cohen, 610 F.Supp. 798, 815-16 (D.Md. 1985) ("[T]he court is persuaded that the three-year statute of limitations commences to run on the date the securities were first bona fide offered to the public."); LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760-61 (E.D.Ark. 1984) (adopting, in what may be dictum, the first-offered test, but expressing "some degree of disquietude"); Morse, 445 F.Supp. 619 (applying first-offered test in context of § 11 claims); Fischer v. Int'l Tel. Tel. Corp., 391 F.Supp. 744, 747-48 (E.D.N.Y. 1975) ("From every indication in the authorities, the crucial date, i.e., the date when a security is first offered to the public within the meaning of § 77m of Title 15, is not earlier than the effective date of last amendment to the registration statement and not later than the date when the prospectus is released to, or other solicitation is made of, the public."); Kramer v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa. 1973) (accepting, in § 11 and § 12(a)(2) context, first-offered test without discussion); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y. 1949) (applying first-offered test without discussion); cf. Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1173 (S.D.N.Y. 1974) (dismissing case for failing to plead compliance with three year repose period by not indicating the date on which security was first offered to the public).

  2. Cook v. Deltona Corp.

    753 F.2d 1552 (11th Cir. 1985)   Cited 89 times
    Holding that the plaintiff's misrepresentations "could not have induced forbearance from bringing suit when the suit was barred before those misrepresentations could have commenced."

    The three-year limitation in the 1933 Act, 15 U.S.C. § 77m, has been held to be an absolute bar, notwithstanding allegations of fraudulent concealment. See Brick v. Dominion Mortgage Realty Trust, 442 F. Supp. 283, 291 (W.D.N.Y. 1977); Fischer v. International Telephone Telegraph Corp., 391 F. Supp. 744, 748 (E.D.N.Y. 1975); Shonts v. Hirliman, 28 F. Supp. 478, 486 (S.D.Cal. 1939); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 399 (M.D.La. 1974). 627 F.2d at 1043.

  3. Aldrich v. McCulloch Props., Inc.

    627 F.2d 1036 (10th Cir. 1980)   Cited 516 times
    Holding that complaint, which states that defendants encouraged purchases by promising investors that their lots would increase in value because of defendants' development activities, sufficiently alleges the existence of an investment contract for the purposes of maintaining an action under federal securities laws

    The three-year limitation in the 1933 Act, 15 U.S.C. § 77m, has been held to be an absolute bar, notwithstanding allegations of fraudulent concealment. See Brick v. Dominion Mortgage Realty Trust, 442 F. Supp. 283, 291 (W.D.N.Y. 1977); Fischer v. International Telephone Telegraph Corp., 391 F. Supp. 744, 748 (E.D. N.Y. 1975); Shonts v. Hirliman, 28 F. Supp. 478, 486 (S.D.Cal. 1939); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 399, (M.D.La. 1974). Finally, finding the ILSFDA to contain an absolute bar is consistent with later congressional action.

  4. Zola v. Gordon

    685 F. Supp. 354 (S.D.N.Y. 1988)   Cited 97 times
    Holding that where plaintiffs present no evidence that they undertook any inquiry the court must conclude "that plaintiffs remained narcose"

    The majority of courts have held "that the three-year period begins to run from the date the security is first offered to the public." Waterman v. Alta Verde Indus., 643 F. Supp. 797, 808 (E.D.N.C. 1986) (emphasis in original); accord Fischer v. International Tel. Tel. Corp., 391 F. Supp. 744, 747 (E.D.N.Y. 1975). This period is an absolute outer limitation.

  5. Waterman v. Alta Verde Industries, Inc.

    643 F. Supp. 797 (E.D.N.C. 1986)   Cited 20 times
    Holding that "the clear weight of authority" holds that the three-year period begins when securities are first offered to the public

    However, the majority of courts that have addressed this question have ruled otherwise, holding that the three-year period begins to run from the date the security is first offered to the public.See, e.g., Morley v. Cohen, 610 F. Supp. 798, 815 (D.Md. 1985); Slagell v. Bontrager, 616 F. Supp. 634, 636 (W.D.Pa. 1985), aff'd, 791 F.2d 921 (3d Cir. 1986); LeCroy v. Dean Witter Reynolds, Inc., supra; Brick v. Dominion Mortgage Realty Trust, 442 F. Supp. 283, 291-92 (W.D.N.Y. 1977); Fischer v. International Telephone and Telegraph Corporation, 391 F. Supp. 744, 747 (E.D.N.Y. 1975); Ingenito v. Bermec Corporation, 376 F. Supp. 1154 (S.D.N Y 1974); Osborne v. Mallory, 86 F. Supp. 869, 873 (S.D.N.Y. 1949); see also III L. Loss, Securities Regulation, p. 1742 (2d Ed. 1961). As the clear weight of authority supports this interpretation, the court is constrained to agree that plaintiff's a federal securities action is barred by the three-year limitation period set out in 15 U.S.C. § 77m. Consequently, his motion for summary judgment on this claim must be denied.

  6. Bresson v. Thomson McKinnon Securities, Inc.

    641 F. Supp. 338 (S.D.N.Y. 1986)   Cited 46 times
    Holding theory of integration does not apply to § 13 of the Securities Act

    See also Hayden v. McDonald, 742 F.2d 423, 436-37 (8th Cir. 1984), (doctrine is inapplicable to statute of limitations under the Minnesota Blue Sky Act). Given that section 10 is broader in scope than either section 11 or section 12(2), Goodman v. Epstein, supra, 582 F.2d at 414, and given the strict construction typically afforded section 13, see Fischer v. International Telephone and Telegraph Corp., 391 F. Supp. 744 (E.D.N.Y. 1975), expansion of the law to permit application of the "integrated offering doctrine" to this case is inappropriate. "The integration theory, although appropriate to determine whether the seller's total effect on the marketplace merits any governmental regulation, should not be used to alter the statute of repose on private legal actions which flow from that governmental regulation once properly imposed."

  7. Morley v. Cohen

    610 F. Supp. 798 (D. Md. 1985)   Cited 58 times
    Concluding that "a corporation or partnership can be held liable under RICO for the acts of its agents and/or representatives committed within the scope of their authority"

    Several other courts have also adopted the "first offered" interpretation of section 13. See Campito v. McManus, 470 F. Supp. 986, 995 (E.D.N.Y. 1979); Fischer v. Int'l Telephone and Telegraph Corp., 391 F. Supp. 744, 747 (E.D.N Y 1975); Ingenito v. Bermec Corp., 376 F. Supp. 1154, 1173 (S.D.N.Y. 1974); Kramer Harrison v. Scientific Control Corp., 352 F. Supp. 1175, 1176 (E.D.Pa. 1973); Osborne v. Mallory, 86 F. Supp. 869, 873 (S.D.N.Y. 1949). Apparently, only one court has specifically addressed the issue and adopted the "last offered" approach.

  8. Turner v. First Wisconsin Mortg. Trust

    454 F. Supp. 899 (E.D. Wis. 1978)   Cited 34 times
    In Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899 (E.D.Wis.1978), for example, the plaintiff purchased her stock in August 1972, and the defective registration statement was filed six months thereafter, in February 1973.

    Otherwise 15 U.S.C. § 77m would create a limitation period for all suits of one year from the time discovery of the untrue statements or omissions should have been made, and the three-year provision would serve no purpose at all. See Cowsar v. Regional Recreation, Inc., 65 F.R.D. 394, 397 (M.D.La. 1974); Burkardt v. Liberty, 394 F. Supp. 1296, 1298-1299 (W.D.Pa. 1975); Fisher v. International Telephone Telegraph Corporation, 391 F. Supp. 744, 747-748 (E.D.N.Y. 1975). Kramer v. Loewi Co., Inc., 357 F. Supp. 83, 87 (E.D.Wis. 1973), is not strictly on point, because it involves the state statute of limitations applicable to a § 10(b) action.

  9. Brick v. Dominion Mortg. Rlty. Trust

    442 F. Supp. 283 (W.D.N.Y. 1977)   Cited 56 times
    Finding that a derivative plaintiff was excused from making a demand upon the directors to commence an action to recover for management's wrongdoing, where all the directors participated or acquiesced in the wrongs alleged, because demand would be futile

    In Fischer v. International Telephone Tel. Corp., 391 F. Supp. 744 (E.D.N.Y. 1975), plaintiff alleged that defendants' registration statement was false and misleading and omitted material facts in violation of section 11. Plaintiff's complaint was filed three years and two days after the date when, according to the court's determination, the stock in question had been bona fide offered to the public.

  10. Payne v. Fidelity Homes of America, Inc.

    437 F. Supp. 656 (W.D. Ky. 1977)   Cited 10 times
    Applying shorter period to claims under Section 10 of the 1934 Act and Section 17 of the 1933 Act

    More than three years have elapsed between June 26, 1970, and the time of filing this suit, and therefore, the plaintiff's claims under Section 12 must be dismissed as having been asserted too late. See also Fischer v. International Telephone Telegraph Corp., 391 F. Supp. 744 (E.D.N.Y. 1975). Similarly, plaintiff's claims under Section 15, 15 U.S.C. § 77 o, must also be dismissed.