Declaration of Jack E. Pace III in Support of Apex Motion to Dismiss the Amended Other Broker Tranche Complaint — In re January 2021 Short Squeeze Trading Litigation (Dkt. 422-1, S.D. Fla.)

Summary

A Declaration of Jack E. Pace III in Support of Apex Motion to Dismiss the Amended Other Broker Tranche Complaint in In re: January 2021 Short Squeeze Trading Litigation, Case 1:21-md-02989-CMA (Case No. 21-2989-MDL-ALTONAGA/Torres, Document 422-1, 3 pages), in the Southern District of Florida, entered October 15, 2021. Pace recounts August 2021 exchanges in which Apex said the court lacked subject matter jurisdiction over the Apex Plaintiffs' negligence claim, which was never served, and Plaintiffs' counsel replied on August 26, 2021 that they did not believe they were required to file a complaint in a home forum. Exhibits include Apex letters of February 9, 2021 and March 22, 2021 to the New Jersey Office of the Attorney General's Bureau of Securities, the standard Customer Account Agreement, Google Finance charts and Apex's Form CRS dated April 14, 2021.

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Date: 2021-04-12

Cite this document

“Declaration of Jack E. Pace III in Support of Apex Motion to Dismiss the Amended Other Broker Tranche Complaint (Dkt. 422-1).” Original at archive.org, dated 2021-04-12. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-04-12-covid-era-misc-dfb9d662-1/, SHA-256 dfb9d6620865fc17f9422447f332c0d84235bda64e521fc2579ae417405e9798.

Full text

Case 1:21-md-02989-CMA Document 422-1 Entered on FLSD Docket 10/15/2021 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 THE AMENDED OTHER BROKER TRANCHE COMPLAINT
PURSUANT TO RULES 12(B)(1) 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) 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

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Case 1:21-md-02989-CMA Document 422-1 Entered on FLSD Docket 10/15/2021 Page 2 of 3

transferred, and that the Apex Plaintiffs failed to effect service of process on Apex of their

negligence action.

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 believe they

were required to file a complaint in a home forum 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 76 of the Amended

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.

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Case 1:21-md-02989-CMA Document 422-1 Entered on FLSD Docket 10/15/2021 Page 3 of 3

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.

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.

12. Attached hereto as Exhibit 6 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 March 22, 2021, which Plaintiff relies on at Paragraph 76 of the Amended Complaint.

13. Attached hereto as Exhibit 7 is a true and correct copy of Apex’s Form CRS –

Customer Relationship Summary, dated April 14, 2021, which was retrieved from the FINRA

website at the following web address: https://files.brokercheck.finra.org/crs_13071.pdf.

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 October 15, 2021.

/s/ Jack E. Pace III
Jack E. Pace III

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Our copy: gov.uscourts.flsd.590042.422.1.pdf
Original: archive.org