Court Of Appeal Holds Section 25504 And Section 15 Claims Are Bis In Idem

by Allen Matkins
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Section 15 of the Securities Act of 1933 imposes liability on control persons for violations of Sections 11 and 12 of that act. Section 25504 of the California Corporations Code imposes liability on persons who control persons liable under either Section 25501 (liability for violation of Section 25401 (false statements or omissions) or Section 25503 (liability for failure to qualify).

Do these two statutes impose liability for the same harm? In Federal Home Loan Bank of S.F. v. Countrywide Financial Corp., 2013 Cal. App. LEXIS 247 (March 29, 2013), the First District Court of Appeal concluded that constitute “identical causes of action for purposes of claim preclusion”.

Does this matter? In the instant case, it mattered a lot. The plaintiff had previously brought suit against the defendant for control person liability under Section 15. Following an adverse tentative ruling, the plaintiff dismissed with prejudice its Securities Act claims. When the plaintiff tried to pursue a claim under Section 25504, the defendant successfully demurred on the basis that the plaintiff was trying to re-litigate a cause of action that had been dismissed with prejudice.

Is “bis in idem” a typo? No, it is Latin for “twice in the same thing”. Typically, you see this phrase stated in the negative, non bis in idem - not twice in the same thing. In criminal law, the negative phrase is used to refer to the bar against double jeopardy. It is used more generally to refer the principle that the same case shouldn’t be relitigated. As U.S. Supreme Court Justice Samuel F. Miller explained in U.S. v. Throckmorton, 98 U.S. 61; 25 L. Ed. 93; 8 Otto 61 (1878):

There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy; namely, interest rei publicæ, ut sit finis litium, and nemo debet bis vexari pro una et eadam causa.

The former Latin phrase means “the interest of the republic, so that there may be an end of litigation”. The latter phrase means “no one should be abused twice on account of the same case”.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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