On January 11, 2016, the United States Supreme Court denied the petition for writ of certiorari filed October 29, 2015, by Plaintiff/Appellant NECA-IBEW Pension Trust Fund in its case against Bank of America, its former CEO Ken Lewis, and others in a securities class action.

The case originated in the United States District Court for the Southern District of New York. There, NECA–IBEW Pension Trust Fund and Denis Montgomery filed suit alleging violations of §§ 11, 12(a)(2), and 15 of the Securities Act of 1933 based on allegations of wrongdoing related to Bank of America’s public offerings made in January and May 2008.[1] The defendants moved to dismiss, the motion was granted, and ultimately the district court denied the plaintiffs’ motion for lead to amend their complaint, finding that allowing the plaintiffs’ Proposed Second Amended Complaint would be futile because, among other reasons, the additional allegations would be untimely. On appeal, the United States Court of Appeals for the Second Circuit affirmed the judgment of the district court.

In its petition, the appellant argued that (i) the district court and Second Circuit improperly relied on Fait v. Regions Fin. Corp., 655 F.3d 105 (2d Cir. 2011) and failed to apply the Supreme Court’s decision in Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund, 135 S. Ct. 1318, 191 L. Ed. 2d 253 (2015); (ii) that the petitioners should have the opportunity to plead their allegations under the Omnicare standard for omissions; and (iii) that the petitioners’ claims were not time-barred.

[1] NECA-IBEW Pension Trust Fund v. Lewis, 607 F. App’x 79 (2d Cir. 2015) cert. denied, No. 15-562, 2016 WL 100422 (U.S. Jan. 11, 2016).

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