Declaration of Jack E. Pace III in Support of Apex Motion to Dismiss (Other Broker Tranche) — In re January 2021 Short Squeeze Trading Litigation (Dkt. 405-1, S.D. Fla.)
Summary
A Declaration of Jack E. Pace III in Support of Apex Motion to Dismiss in In re: January 2021 Short Squeeze Trading Litigation, Case 1:21-md-02989-CMA (Case No. 21-2989-MDL-ALTONAGA/Torres, Document 405-1, 3 pages), in the U.S. District Court for the Southern District of Florida, entered August 30, 2021. Pace states that Apex told Plaintiffs' counsel in August 2021 that the Apex Plaintiffs' negligence claim was improperly brought for the first time in the MDL court with no home forum and was never served, and that Plaintiffs' counsel replied on August 26, 2021 that the issue would be best resolved through a motion to dismiss. Exhibits include a February 9, 2021 Apex letter to the New Jersey Office of the Attorney General's Bureau of Securities, the standard Customer Account Agreement, and Google Finance stock price charts for GME, AMC and KOSS.
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- Date
- 2021-04-12
Cite this document
“Declaration of Jack E. Pace III in Support of Apex Motion to Dismiss (Other Broker Tranche) (Dkt. 405-1).”
Original at archive.org, dated 2021-04-12. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-04-12-covid-era-misc-037a8e61-1/
, SHA-256 037a8e611c8de4f99d49ee6b41632193929186426bef58d2f11b1f0d4bf441fe.Full text
Case 1:21-md-02989-CMA Document 405-1 Entered on FLSD Docket 08/30/2021 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-2989-MDL-ALTONAGA/Torres
IN RE:
JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
____________________________________/
This Document Relates to All Claims Included
In the Other Broker Tranche
DECLARATION OF JACK E. PACE III IN SUPPORT OF APEX MOTION TO
DISMISS PURSUANT TO RULES 12(B)(1), 12B(2), 12(B)(5), AND 12(B)(6)
I, Jack E. Pace III, hereby declare as follows:
1. I am an attorney duly authorized to practice law in the State of New York and am
authorized to appear in the above-captioned litigation pursuant to this Court’s Pretrial Order #1
(Doc. No. 46) having filed a Certificate of Understanding on April 12, 2021 (Doc. No. 81). I am
a Partner in the law firm of White & Case LLP, counsel for Defendant Apex Clearing
Corporation (“Apex”). I submit this Declaration in support of Apex’s Motion to Dismiss
Complaint Pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). I am familiar with the
facts set forth herein, based on my personal knowledge of the material referenced herein.
2. On August 16, 2021, my colleague Kelly Newman emailed Plaintiffs’ lead
counsel for the Other Broker Tranche Peter Safirstein, as well as Plaintiffs’ Liaison Counsel
Rachel Furst, to notify them that the Apex Plaintiffs’ negligence action claim improperly was
brought for the first time in the MDL court, having no home forum from which the action was
transferred, and that the Apex Plaintiffs failed to effect service of process on Apex of their
negligence action.
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Case 1:21-md-02989-CMA Document 405-1 Entered on FLSD Docket 08/30/2021 Page 2 of 3
3. On August 18, 2021, I held a telephonic conference with Mr. Safirstein and Ms.
Furst, which Mr. Sean Burstyn and Mr. Daniel Matteo, counsel for the Robinhood Tranche
Plaintiffs, also attended.
4. In the August 18, 2021 conference, I explained Apex’s position that the court
lacked subject matter jurisdiction over the Apex Plaintiffs’ negligence claim, and that the Apex
Plaintiffs’ failure to serve Apex with any negligence complaint deprived the court of personal
jurisdiction over Apex for Plaintiffs’ claims as well. My colleague Kelly Newman further
provided Plaintiffs with the cases that supported our position that the court lacks subject matter
jurisdiction over the Apex Plaintiffs’ negligence claim.
5. On August 23, 2021, I provided Plaintiffs’ counsel with additional cases that
support Apex’s position, via email.
6. Plaintiffs’ counsel informed me on August 26, 2021, that they did not plan to try
to rectify this procedural error, and that the issue would be best resolved through a motion to
dismiss.
7. Attached hereto as Exhibit 1 is a true and correct copy of a letter from Apex
Clearing Corporation to the New Jersey Office of the Attorney General’s Bureau of Securities,
dated February 9, 2021, which Plaintiff quotes and relies on at Paragraph 246 of the Complaint.
8. Attached hereto as Exhibit 2 is a true and correct copy of the standard Customer
Account Agreement that Apex enters into with the customers of Introducing Brokers who use
Apex’s clearing services.
9. Attached hereto as Exhibit 3 is a true and correct copy of a stock price chart taken
from Google Finance on August 30, 2021, tracking the stock price of GameStop (“GME”) from
February 15, 2002 to the present.
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Case 1:21-md-02989-CMA Document 405-1 Entered on FLSD Docket 08/30/2021 Page 3 of 3
10. Attached hereto as Exhibit 4 is a true and correct copy of a stock price chart taken
from Google Finance on August 30, 2021, tracking the stock price of AMC from August 30,
2020 to the present.
11. Attached hereto as Exhibit 5 is a true and correct copy of a stock price chart taken
from Google Finance on August 30, 2021, tracking the stock price of KOSS stock from March
27, 1986 to the present.
I hereby declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct and that this declaration was executed in New York, New
York on August 30, 2021.
/s/ Jack E. Pace III
Jack E. Pace III
3
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