Sjunde Ap-Fonden and The Cleveland Bakers and Teamsters Pension Fund, individually and on behalf of all others similarly situated, v. General Electric Company, et al.
New York Southern District Court, No. 1:17-cv-08457
Docket Entry 185 filed on 08/29/2019 (3 months ago)
OPINION AND ORDER: For the foregoing reasons, Defendants' motion to dismiss is GRANTED, except as to (1) Plaintiffs' Section 10(b) and Rule 10b-5 claims concerning (a) factoring in GEs 2016 Form 10-K and (b) GEs failure to disclose factoring in its Class Period financial statements, which survive against GE and Bornstein; and (2) for now, Plaintiffs' Section 20(a) claims against each Individual Defendant. That leaves the question of whether Plaintiffs should be granted leave to amend the claims that have been dismissed. Although Plaintiffs already had one opportunity to amend their Complaint following Defendants' motion to dismiss, and were expressly warned that they would "not be given any further opportunity to amend the complaint to address issues raised by the motion to dismiss," ECF No. 175, the Court concludes that leave to amend is warranted given the nature of the Court's rulings and the sheer number of issues addressed. See, e.g., ATSI Commcns, 493 F.3d at 108 ("District courts typically grant plaintiffs at least one opportunity toplead fraud with greater specificity when they dismiss under Rule 9(b)."); see also, e.g., Sanchez v. ASA Coll., Inc., No. 14-CV-5006 JMF, 2015 WL 3540836, at *13 (S.D.N.Y. June 5, 2015)(granting leave to amend in spite of the plaintiffs earlier opportunity to amend). In particular,Plaintiffs may be able to allege additional facts regarding the Individual Defendants knowledge, or conscious disregard of, GEs actuarial issues (with respect to its LTC portfolio) and the trendsand risks it should have disclosed (with respect to its LTSAs) that would permit Plaintiffs to clear the scienter bar, see, e.g., Pirnik v. Fiat Chrysler Automobiles, N.V., No. 15-CV-7199(JMF), 2017 WL 3278928, at *4 (S.D.N.Y. Aug. 1, 2017), and as to their more threadbareclaims, to allege facts that may meet the requirements of Rules 8 and 9(b). Accordingly, by September 19, 2019, the parties shall meet and confer and submit ajoint letter, not to exceed four pages, concerning their views on the next steps in this litigation, including whether Plaintiffs plan to file a Fifth Amended Complaint and what an appropriate deadline and motion practice schedule would be in that event; whether a status conference is appropriate or necessary; and, if Plaintiffs do not intend to amend the Former Amended Complaint, whether the parties believe the Court should entertain supplemental briefing with respect to Plaintiffs' Section 20(a) claims in light of this Opinion and Order. The Clerk of Court is directed to terminate ECF No. 172. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/29/2019) (jca) (Entered: 08/29/2019)
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Aug 30, 2019 09:48:44 EDT - But the federal court ruling also leaves gives the plaintiffs a green light to come back with an amended complaint.
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