Fifty Person Limit

The Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) precludes any “covered class action” based upon state law that alleges a misrepresentation in connection with the purchase or sale of nationally traded securities.  The defendants are permitted to remove the case to federal district court for a determination as to whether the case is precluded by the statute.  If so, the district court must dismiss the case; if not, the district court must remand the case back to state court.

SLUSA has a bifurcated definition of “covered class action” for a single lawsuit.  The action qualifies as a covered class action when (in relevant part) either (a) damages are sought on behalf of more than 50 persons or prospective class members; or (b) one or more named parties seek to recover damages on a representative basis on behalf of themselves and other unnamed parties similarly situated.

In Nielen-Thomas v. Concorde Investment Services, LLC, 2019 WL 302766 (Jan. 24, 2019 7th Cir.), the Seventh Circuit considered whether a putative class action meeting all of the other requirements for SLUSA preclusion, but brought on behalf of “between thirty-five and forty-nine members,” should be allowed to proceed in state court.  The plaintiffs argued that the two definitions of “covered class action” were “separate, independent bases for excluding securities class actions from SLUSA’s proscriptions” so that being excluded under one was sufficient, or, alternatively, the fifty-person threshold must apply to both definitions to avoid making the second definition superfluous.  The Seventh Circuit disagreed.

The Seventh Circuit found that while there was an overlap between the two definitions, each had a separate meaning.  Under the first definition, the action could “be treated as a class action even if all plaintiffs are identified in the complaint and no plaintiff is pursuing claims as a representative on behalf of others, if there are more than fifty such plaintiffs and SLUSA’s other requirements are met.”  The second definition, in contrast, “includes any action brought as a putative class action in the traditional Rule 23 meaning of the term.”  The Seventh Circuit also found that this interpretation is consistent with SLUSA’s purpose and legislative history, noting that Congress wanted to prevent plaintiffs from circumventing the barriers to federal securities class actions by simply filing them in state court (no matter how large the size of the class).  Because the case before the court clearly was a putative class action, it fell within the second definition and was precluded.

Holding: Dismissal affirmed.

Quote of note:  “To the extent the identities of any of the other putative class members are known, and these individuals wish to pursue claims on their own behalf in state court under state law, nothing in SLUSA prevents them from doing so (provided there are fewer than fifty such plaintiffs for which common questions of law or fact predominate).  What SLUSA does preclude these individuals from doing is continuing to pursue their claims in the form of a class action.”

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