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Federal appeals court sends 'naked short-sale' lawsuit back to N.J. state court

By Ron Zeitlinger | The Jersey Journal

on November 12, 2014 at 11:43 AM, updated November 12, 2014 at 11:45 AM

A federal appeals court this week returned a lawsuit accusing major investment firms of racketeering and securities fraud to New Jersey state court.

The Third Circuit three-judge panel ruled Monday that the claims in the lawsuit, brought by investors, "does not arise" under federal law and should be heard in state court. The decision reversed a March 2013 decision that the case be heard in federal court.

In the lawsuit a group of investors claims that Knight Capital Americas LP, of Jersey City; UBS Securities, with offices in Weehawken; LLC Merrill Lynch & Co. Inc., and others engaged in manipulative "naked" short-selling, which diluted and artificially depressed their value.

Naked short-selling is the illegal practice of short-selling shares of stock that have not been determined to exist. Traders must borrow a stock, or determine that the stock can be borrowed, before they sell it short.

Plaintiffs in the lawsuit are people and companies that owned shares in Escala, an auctioneer of stamps and other collectibles.

"The question of whether the naked short selling at issue in this case violates New Jersey law (including the state’s general securities fraud provisions) need not be answered by reference to Regulation SHO," the judges said in their opinion.

Regulation SHO is a federal regulation implemented in 2005 to prevent traders from engaging in naked short selling practices.

"Because the success of plaintiffs’ state-law causes of action does not 'necessarily' depend upon the contents of federal law, this case does not 'arise under' the laws of the United States. The presence of an exclusive jurisdiction provision governing Regulation SHO does not change the analysis, as such provisions cannot independently generate jurisdiction."


http://www.nj.com/hudson/index.ssf/2014/11/federal_appeals_court_sends_naked_short-sale_lawsuit_back_to_nj_state_court.html