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In re Allstate Life Insurance Company Litigation

United States District Court, Ninth Circuit

November 1, 2013

In Re: Allstate Life Insurance Company Litigation. No. CV-09-8174-PCT-GMS

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Defendants' Request for Additional Rulings (Doc. 960) and the joinders in that motion by co-Defendants (Docs. 962, 963, 967). For the reasons set forth below, the Court requests Plaintiffs to respond if they wish to do so on two of the issues, denies the remainder of the motion as moot in part, and denies the balance of the motion.

A. Aiding and Abetting Claims.

1. FSG and PVSE

FSG and PVSE request that the Court enter judgment in their favor on the aiding and abetting claim, because they asked for it in their motion, because aiding and abetting requires scienter, and because the Court concluded in disposing of the federal control person claim against them that they lacked scienter. Nevertheless, in a case like this in which the briefing and associated paper work took thousands of pages, to the extent that FSG and PVSE rely on the second half of a footnote on the 15th page of their motion to assert that the Court missed an argument that they made, and that they are entitled to a ruling on it, the Court declines to consider supplementing its previous rulings. "A footnote is the wrong place for substantive arguments on the merits of a motion, particularly where such arguments provide independent bases for dismissing a claim not otherwise addressed in the motion." First Advantage Background Servs. Corp. v. Private Eyes, Inc., 569 F.Supp.2d 929, 935 n. 4 (N.D.Cal. 2008); Cf. Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996) ("The summary mention of an issue in a footnote, without reasoning in support of the appellant's argument, is insufficient to raise the issue on appeal."). FSG and PVSE's motion in this respect is denied.

2. Kutak

Plaintiff has avowed that it no longer asserts aiding and abetting claims. Therefore, Cuttack's motion in this respect is moot.

3. Hocking

Plaintiffs will respond, if they wish to do so, to Hocking's request for the Court to supplement its aiding and abetting ruling as to them by November 15.

B. Negligent Misrepresentation Claims.

Plaintiffs will respond, if they wish to do so, to FSG and PVSE's assertion that the Court's ruling on the negligent misrepresentation claim should apply to all Defendants by November 15.

C. Allstate's Secondary Market Purchase.

The Underwriters request that the Court explicitly supplement its judgment to note that, to the extent that Allstate purchased its bonds in the secondary bond market from a third party broker, then it can bring no claim against Defendants for "making, participating in or inducing the purchase of a security" within the purview of the Arizona Securities Act as to those bonds. The Underwriters correctly note that this Court so held in dismissing Nonparty Bondholders who asserted such claims. It is equally true that the same reasoning might apply to any bonds purchased by Allstate on the secondary bond market from a third-party broker. The Underwriters further point to a footnote on page thirteen of their Memorandum to argue that they argued in their motion that this Court should dismiss Allstate's claims to the extent they arise from such secondary purchases. Doc. 704 at 13 n. 11. Nevertheless, in a case like this in which the briefing and associated paper work took thousands of pages, to the extent that the Underwriters rely on a footnote on the 13th page of their fifty-one page motion to assert that the Court missed an argument that they made, and that they are entitled to a supplemental ruling on it, the Court declines to consider supplementing its previous rulings. First Advantage Background Servs. Corp. v. Private Eyes, Inc., 569 F.Supp.2d 929, 935 n. 4 (N.D.Cal. 2008) ("A footnote is the wrong place for substantive arguments on the merits of a motion, particularly where such arguments provide independent bases for dismissing a claim not otherwise addressed in the motion."); Cf. Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996) ("The summary mention of an issue in a footnote, without reasoning in support of the appellant's argument, is insufficient to raise the issue on appeal."). The Underwriter's motion in this respect is denied.

D. Underwriter's Assertion that Available Demographic Information That Was Public Information Can't Be the Basis ...


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