JD – Earlier this month, in Absolute Activist Value Master Fund Ltd. et al. v. Ficeto et al., 11-cv-0221 (2d Cir. Mar. 1, 2012), the Court of Appeals for the Second Circuit affirmed the dismissal of a $200M fraud case brought by nine Cayman Island hedge funds that claimed to be the victims of a classic “pump-and-dump” scheme involving penny stocks in U.S. companies.
The appeals court ruled, however, that the hedge funds should have an opportunity to file an amended complaint, alleging violations of Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, against the defendants, who included an investment manager, its executives, a registered broker and others. Thus, the final chapter for these hedge funds has not yet been written. Nevertheless, the decision in Absolute Activist has important implications for non-U.S. funds ? both as securities investors and potential plaintiffs ? that invest in private placements or other securities that are not listed on domestic exchanges.
