April 15, 2015 Practice Points

Ninth Circuit Dismisses Appeal in Eminence Investors v. Bank of New York Mellon

In 2011, plaintiff-appellant Eminence Investors, L.L.L.P. filed a California state action against the Bank of New York Mellon for breach of fiduciary duty and gross negligence relating to the issuance of public financing bonds

by Manfred Muecke

On April 2, 2015, the United States Court of Appeals for the Ninth Circuit dismissed an appeal seeking to overturn a district court’s order remanding a class action back to state court.  In Eminence Investors, L.L.L.P., v. Bank of New York Mellon, 2015 WL 1475055 (April, 2, 2015), the Ninth Circuit held that the court lacked federal appellate jurisdiction under the Class Action Fairness Act (CAFA) due to the applicability of CAFA’s securities exception to the case before it.

In 2011, plaintiff-appellant Eminence Investors, L.L.L.P. filed a California state action against the Bank of New York Mellon for breach of fiduciary duty and gross negligence relating to the issuance of public financing bonds. Almost two years later, the Eminence Investors filed an amended complaint asserting claims on behalf of more than 100 putative class members that sought damages of more than $10 million. Within 30 days of the amended complaint’s filing, the bank removed the case to federal court under CAFA, and Eminence responded by moving to remand the case back to California state court. The investors argued that removal was improper because (a) removal was untimely and (b) CAFA’s security exception applied. Agreeing that the bank’s removal was untimely, the federal district court granted the motion to remand without discussing whether CAFA’s securities exception applied.

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