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United States Second Circuit

Lowinger v. Morgan Stanley, 14-3800

In a complaint asserting claims under the Securities Exchange Act of 1934, 15 U.S.C. section 78p(b), seeking to hold Lead Underwriter-defendants liable under Section 16(b) for disgorgement of short-swing profits received in connection with their sales and purchases of shares in the course of Facebook, Inc.'s initial public offering (IPO), the District Court's dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is affirmed where: 1) the lock-up agreements alone between Lead Underwriters and pre-IPO Shareholders did not render the Lead Underwriters beneficial owners of the aggregated shares held by the Shareholders under Section 13(d); and 2) this standard form lock-up agreement is insufficient, on its own, to establish a group under Section 13(d).

Appellate Information

  • Decided
  • Published 2016/11/03




  • United States Second Circuit


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