United States Second Circuit

In a action for breach of contract and securities fraud, district court's grant of plaintiff's motion to dismiss is affirmed where: 1) the court properly ruled that plaintiff's contract claim was barred by the Statute of Frauds as the possibility of performance of the alleged oral agreement within one year depended solely on the will and actions of plaintiff, the party seeking to enforce the agreement; and 2) plaintiff's securities fraud claim under the Securities Exchange Act and SEC rules fail for lack of plausible and cogent allegations of scienter as the factual allegations do not give rise to an inference of either fraudulent intent or conscious recklessness, and the inferences advocated by plaintiff were not as compelling as an inference of negligence.

Appellate Information

• Decided 07/14/2009
• Published 07/14/2009

Judges

• KEARSE, Circuit Judge:, Before: JACOBS, Chief Judge, KEARSE and HALL, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Ted Poretz, New York, N.Y. (Theo J. Robins, Derek Care, Bingham McCutchen, New York, NY, on the brief), for Plaintiff-Appellant.


• For Appellees:
  
• Bennett Falk, Miramar, FL (Matthew Wolper, Bressler, Amery & Ross, Miramar, FL, on the brief), for Defendants-Appellees.