Opinion
No. 96-9137.
Argued: April 14, 1997.
Decided: September 29, 1998.
Appeal from an order of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge) dismissing Louis Bissell's claims under Section 10(b) of the Securities and Exchange Act of 1934. We affirm for the reasons stated in Levitin v. Painewebber, Inc., ___ F.3d ___, No. 96-7994 (2d Cir. 1998).
ROGER W. KIRBY, Kaufman, Malchman, Kirby Squire, New York, New York (Ira M. Press, of counsel), for Plaintiff-Appellant.
HENRY F. MINNEROP, Brown Wood, New York, New York (Cathleen M. Tiernan, Laurel J. Southworth, Daniel A. McLaughlin, of counsel), for Defendants-Appellees.
Christopher Paik, Office of Chief Litigation Counsel, Securities Exchange Commission, Washington, D.C., for Amicus Curiae Securities Exchange Commission.
Before: WINTER, Chief Judge, FEINBERG, and PARKER, Circuit Judges.
Louis Bissell, Jr. appeals from Judge Schwartz's order denying his motion for class certification and dismissing his complaint for failure to state a claim. See Bissell v. Merrill Lynch Co., Inc., 937 F. Supp. 237 (S.D.N.Y. 1996).
The facts here are identical to those in Levitin v. Painewebber, Inc., ___ F.3d ___, No. 96-7994 (2d Cir. 1998) but for two matters. The first difference is that instead of posting as collateral cash or securities other than those being sold short, Bissell traded "against the box." In trading "against the box," the customer posts as collateral shares he owns that are identical to or convertible into those being sold short. The second difference from Levitin is that Bissell was a large trader who was able to negotiate a remittance of the earnings realized by appellees on the shares he posted as collateral. He alleges, however, that only a portion of those earnings were remitted.
Neither difference is material, and we affirm for the reasons stated in Levitin.