Simmonds
Simmonds v. Credit Suisse Securities LLC
Opinion
Concurring Opinion
Smith, J.
concurring:
The statutory text of Section 16(b) provides that “no such suit shall be brought more than two years after the date such profit was realized.” 15 U.S.C. § 78p(b). In my view, “no suit” means no suit, and “two years after the date such profit was realized” means two years after the insider’s final profitable transaction, regardless of when — or even if — a Section 16(a) report is filed. The text of the statute sets a firm bar against Section 16(b) suits filed more than two years after the transaction is completed. Accordingly, I agree with the Supreme Court’s dictum that Section 16(b) “sets a 2-year ... period of repose.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 , 360 n. 5, 111 S.Ct. 2773 , 115 L.Ed.2d 321 (1991).
This straightforward textual reading is further confirmed by comparing the language of Section 16(b) with the language of the other statutes of limitations in our securities laws. See Lampf, 501 U.S. at 360 -61 & nn. 5-7, 111 S.Ct. 2773 . The Court in Lampf explained that language such as Section 16(b)’s “no such suit shall be brought” creates periods of repose that are not subject to tolling. Id. at 360-61, 363 , 111 S.Ct. 2773 .…
Lead Opinion
Smith, J.
Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge MILAN D. SMITH, JR.
ORDER
The Opinion filed on December 2, 2010 is amended to appear as set forth below in the Amended Opinion filed concurrently with this Order.
On slip opinion page 19110, footnote 5, lines 5 and 6, “Digimarc Corporation;” is deleted.
On slip opinion page 19110, footnote 5, line 8, “Openwave Systems Inc.;” is deleted.
On slip opinion page 19124, lines 16 through 27, the text beginning with “If Simmonds lacked access to necessary information” through the end of the paragraph is deleted and replaced with the following: “Delaware law does not allow shareholders to forego pre-suit investigations in an attempt to shift information-gathering costs onto the corporation, and this rule is not clearly incompatible with Section 16 and the Exchange Act.”
On slip opinion page 19124, line 28, through page 19125, line 11, the paragraph is deleted in its entirety.
With this amendment, the panel has unanimously voted to deny Appellees’ petition for panel rehearing. Judges Thomas and M. Smith have voted to deny Appellant’s petition for rehearing en banc, and Judge Hogan has so recommended. Judge Thomas has voted to…