The Opinion was vacated and remanded by the Second Circuit in Barron v. Helbiz, Inc., No. 21-278, 2021 WL 4519887 (2d Cir. Oct. 4, 2021), which held, when viewed most favorably to Plaintiffs, that the Complaint alleged that Defendants did not fulfill the promises they made to induce Plaintiffs into purchasing HelbizCoin and that Morrison does not apply to such state law claims. The Second Circuit further concluded that amendment was not futile. Id. at 4
The Court of Appeals vacated and remanded, without criticism of that reasoning, holding that Morrison should not have been applied to the state law claims. Barron v. Helbiz, Inc,, No. 21-278, 2021 WL 4519887 (2d Cir. Oct. 4, 2021) (summary order). Plaintiffs were given leave to amend their complaint to add factual allegations related to domesticity and make a separate federal securities claim under Section 10(b) of the Securities Act.
Second, Plaintiffs contend that Judge Lehrburger erred “in not permitting leave to amend following the dismissal ruling,” ECF No. 163, by “declin[ing] to follow [Loreley Financing (Jersey) No. 3. Ltd. v. Wells Fargo Securities, LLC, 797 F.3d 160 (2d Cir. 2015); Barron v. Helbiz, Inc., No. 21-278, 2021 WL 4519887 (2d Cir. Oct. 4, 2021) (summary order); and Schwimmer v. Guardian Life Insurance, No. 93 Civ. 428, 1996 WL 146004 (S.D.N.Y. Apr. 1, 1996)] because [the cases] ‘apply Rule 15 and not the more exacting standard of Rule 16.'” Pls. Obj. at 8-9 (citing R&R at 18 n.14).
The same is true for other Second Circuit cases cited by Farsura. See Attestor Value Master Fund v. Republic of Argentina, 940 F.3d 825, 833 (2d Cir. 2019); Barron v. Helbiz, Inc., 2021 WL 4519887, at *3 (2d Cir. Oct. 4, 2021). See generally Rio Tinto, 2020 WL 2504008, at *8 (similarly distinguishing Lorelely).
That said, mindful that leave to amend a complaint should be freely given “when justice so requires,” Fed.R.Civ.P. 15(a)(2), the Court will grant Amorosa one final chance to amend, see, e.g., Pasternack v. Shrader, 863 F.3d 162, 175 (2d Cir. 2017) (“Complaints dismissed under Rule 9(b) are almost always dismissed with leave to amend.” (internal quotation marks omitted)); Barron v. Helbiz, Inc., No. 21-278, 2021 WL 4519887, at *3 (2d Cir. Oct. 4, 2021) (summary order) (“Plaintiffs' failure to formally move for amendment is not a sufficient ground to prohibit them from amending now.”); Attestor Value Master Fund v. Republic of Argentina, 940 F.3d 825, 833 (2d Cir. 2019) (“We have been particularly skeptical of denials of requests to amend when a plaintiff did not previously have a district court's ruling on a relevant issue.”)
And at least one other court in this district has declined to conclude that a cryptocurrency exchange transaction was domestic based on plaintiffs' allegation that they "bought tokens while located in the U.S. and that title passed in whole or in part over servers located in California that host [the exchange] 's website." No. 20-CV-4703 (LLS), 2021 WL 229609 (S.D.N.Y. Jan. 22,2021), vacated and remanded on other grounds, No. 21-278, 2021 WL 4519887 (2d Cir. Oct. 4, 2021). Id., at*5-6.
Counsel should provide a detailed explanation of that statement and its impact on the settlement amount. In doing so, they should consider the analysis in In re Tezos Sec. Lilig., No. 17-cv-06779 (RS), 2018 WL 4293341 (N.D. Cal. Aug. 7, 2018) and Barron v. Helbiz Inc., No. 20-cv-4703 (LLS), 2021 WL 229609 (S.D.N.Y. Jan. 22, 2021) vacated and remanded on other grounds, No. 21-278, 2021 WL 4519887 (2d Cir. Oct. 4, 2021), although the Court expresses no view with respect to the analysis in either case. Counsel further should address the implication of the Securities and Exchange Commission's recent instruction that trading platforms such as Poloniex qualify as national securities exchanges under the Exchange Act and Exchange Act Rule 3b-l 6(a).