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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 the Other Broker Tranche
NOTICE OF FILING OF COMPLAINT IN CHAVEZ, ET AL. V.
APEX CLEARING CORPORATION MATTER
Plaintiffs, Erik Chavez and Peter Jang (“Plaintiffs”), hereby file the Complaint from
Docket 1:22-cv-21747 in the within MDL Docket, pursuant to the Court’s Order of June 8, 2022
[ECF 478].
The Complaint is attached hereto as Exhibit A.
Respectfully submitted,
/s/ Gary S. Graifman_________
Gary S. Graifman*
KANTROWITZ, GOLDHAMER &
GRAIFMAN, P.C.
16 Squadron Boulevard
New City, New York 10956
Phone: (845) 356-2570
Fax: (845) 356-4335
ggraifman@kgglaw.com
Peter Safirstein*
SAFIRSTEIN LAW LLC
45 N. Broad Street
Suite 100
Ridgewood, NJ 07450
Tel: (917) 952-9458
psafirstein@safirsteinlaw.com
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Plaintiffs’ Counsel in the
Other Broker Tranche
Rachel W. Furst
GROSSMAN ROTH TAFFA
COHEN, P.A.
2525 Ponce de Leon Blvd., Ste 1150
Coral Gables, FL 33134-6040
Tel: 305-442-8666
rwf@gossmanroth.com
Plaintiffs’ Liaison Counsel
*Counsels’ Certificates of Understanding
have previously been filed
CERTIFICATE OF SERVICE
I hereby certify that on June 10, 2022, I electronically filed the forgoing with the Clerk of
the Court using CM/ECF. I also certify that the foregoing is being served this day on all counsel
of record in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel who are not
authorized to receive Notices of Electronic Filing.
By: /s/ Gary S. Graifman
Gary S. Graifman
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EXHIBIT A
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERIK CHAVEZ and PETER JANG,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
v.
APEX CLEARING CORPORATION
Defendant.
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Case No. S.D. Fla.: 1:22-cv-21747
CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL
Plaintiffs, Erik Chavez and Peter Jang (collectively, “Plaintiffs”), on behalf of
themselves and all other customers of Defendant and investors (the “Class”), bring
this Class Action Complaint against Defendant Apex Clearing Corporation
(“Defendant” or “Apex”), for negligence, breach of fiduciary duty, and alternatively,
breach of the implied covenant of good faith and fair dealing and tortious
interference with a business relationship, demanding a trial by jury.
INTRODUCTION
1.
Apex is a broker-dealer providing services to its direct customers, to
approximately one hundred correspondent introducing broker-dealers and to
customers introduced to Apex by those introducing broker-dealers. The customers
introduced to Apex by those introducing broker-dealers are shared customers as
between Apex and the introducing broker-dealers (“Shared Customers”).
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2.
On the morning of January 28, 2021, Apex unilaterally and abruptly
blocked its direct customers and instructed its introducing broker-dealers to block
their Shared Customers from purchasing shares of AMC Entertainment Holdings,
Inc. (symbol: AMC), GameStop Corporation (symbol: GME), and Koss Corporation
(symbol: KOSS) for a period of time lasting approximately three hours and twenty-
five minutes. Apex’s decision to implement this unilateral, one-way trading
suspension—unprecedented in the long history of securities trading in this country—
was designed to and foreseeably impeded additional price appreciation and
suppressed the prices of AMC, GME, and KOSS.
3.
Leading up to January 28, 2021, AMC, GME, and KOSS (collectively,
the “Suspended Stocks”) experienced increased trading volume concentrated in
portfolios of firms that, among other activities, support individual investors, and
include Apex’s introducing broker-dealers such as Ally Financial, Dough, M1
Finance, Public.com, Sofi, Stash, Tastyworks, and WeBull Financial LLC
(collectively, with the additional Apex introducing broker-dealers the “Introducing
Broker-Dealers”).
4.
By its own admission, Apex shut down only one side of the market for
the Suspended Stocks, the demand-side of AMC, GME, and KOSS stocks, based on
a possible future collateral requirement, that Apex had not even bothered to confirm
and kept in place the one way shut down, for approximately three hours after
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receiving notice that the actual collateralization number was lower and was, in fact,
at a level that Apex believed warranted lifting the shutdown.
5.
Contrary to governing industry rules and regulations aimed at
addressing market volatility, duties of due care and good faith as a broker-dealer
registered with the U.S. Securities and Exchange Commission (“SEC”) and a
Financial Industry Regulatory Authority (“FINRA”) member, and shared customer
and investor expectations, Apex failed to take reasonable steps to protect its
customers and investors in times of market volatility. As alleged herein, Apex failed
to adequately mitigate risk and knew or should have known that the abruptly
implemented, one-way trading suspension it imposed directly and through its
Introducing Broker-Dealers would and did harm Apex customers and investors.
6.
By imposing restrictions on only one side of the transaction—the buy
side—Apex not only deprived Plaintiffs and Class members of the ability to
purchase the Suspended Stocks, but it intended to and did cause the price of the
Suspended Stocks to spiral downward to artificially suppressed prices by allowing
selling to continue. These artificially suppressed prices continued to permeate in the
market even after the trading suspension was lifted. This reaction was foreseeable
and was within the control of Apex.
7.
As a result, Plaintiffs and Class members were forced to sell at
artificially suppressed prices or watch as the value of their holdings fell
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precipitously.
8.
Plaintiffs assert claims for negligence, breach of fiduciary duty and
alternatively, breach of the implied covenant of good faith and fair dealing and
tortious interference with a business relationship on behalf of themselves and the
Class as set forth herein.
JURISDICTION AND VENUE
9.
This Court has subject-matter jurisdiction over this action pursuant to
28 U.S.C. § 1332(d)(2) because this is a class action subject to the Class Action
Fairness Act (“CAFA”), Pub.L. No. 109-2, 119 Stat. 4 (codified in various sections
of 28 U.S.C.), with aggregate claims of all members of the proposed class and
subclass(es) in excess of $5 million, exclusive of interest and costs, and there are
more than 100 putative Class Members. Many members of the proposed Class are
citizens of a state different from Defendant. This Court also has supplemental
jurisdiction over state law claims pursuant to 28 U.S.C. § 1367 because they form
part of the same case or controversy as the claims within the Court’s original
jurisdiction.
10.
This Court is the proper venue for this action because Defendant Apex
is incorporated in New York, has offices in New York and many of the acts
complained of, on information and belief, were directed from New York. Apex’s
key personnel are New York based. Apex CEO William Capuzzi identifies his
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“Contact info” on his Linked-In page under “New York City Metropolitan Area.”
Apex Chief Administrative Officer William Brennan lists a “Summit, New Jersey”
location and lists work locations as both Dallas (May 2016 - Present) and Greater
New York City Area (September 2019-Present). And an Apex’ Chief Compliance
Officer recent job posting is listed for an Apex New York office at 28 Liberty Street,
New York, NY. In addition, Apex’s parent, Apex Fintech Solutions LLC is
headquartered in New York City and managed by the same management team that
manages Apex. Apex Fintech Solutions LLC is a Peak6 Investments LLC (“Peak6”)
brand. Peak6 and Apex Fintech Solutions LLC are both located at 888 7th Avenue,
32nd Floor, New York, NY.
11.
Jurisdiction and venue are proper in this District pursuant to 28 U.S.C.
§ 1391 because Defendant is licensed to do business in this District, has transacted
business, maintained substantial contacts, or committed tortious acts in this District,
causing injury to persons residing in, located in, or doing business throughout the
United States, including in this District.
12.
This Court has personal jurisdiction over Apex because Apex: (a)
transacted business throughout the United States, including in this District; (b)
transacted in substantial amounts of the Suspended Stocks throughout the United
States, including in this District; (c) had substantial contacts within the United States,
including this District; and/or (d) engaged in actions that had a direct, foreseeable,
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and intended effect of causing injury to the business or property of persons residing
in, located in, or doing business throughout the United States, including in this
District.
PARTIES
A. Plaintiffs
i. Erik Chavez
13.
Plaintiff Erik Chavez is a resident of the State of Arizona.
14.
Plaintiff Chavez is an investor who used Webull Financial LLC
(“Webull”) as his introducing broker-dealer and Apex as his clearing broker. The
trading account was carried by Apex Clearing Corporation.
15.
As of the end of the day on January 27, 2021, Plaintiff Chavez held 607
shares of AMC stock.
16.
On February 2, 2021, Plaintiff Chavez sold all of his shares of AMC
stock for less than he would have sold for but for the conduct alleged herein.
ii.
Peter Jang
17.
Plaintiff Peter Jang is a resident of the State of Maryland.
18.
Plaintiff Jang is an investor who used Ally Invest Securities (“Ally”)
as his introducing broker-dealer and Apex as his clearing broker. The trading
account was carried by Apex Clearing Corporation.
19.
As of the end of the day on January 27, 2021, Plaintiff Jang held 3,500
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shares of GME stock in his account at Ally.
20.
On February 4, 2021, Plaintiff Jang, who had journaled his shares of
GME to a different brokerage house, sold 401 shares of GME stock for less than he
would have sold for but for the conduct alleged herein.
21.
Plaintiffs have a legally protected interest in their financial losses
arising out of Defendant’s conduct alleged herein.
B. Defendant
22.
Defendant Apex is a New York corporation with offices in New York
and a principal place of business at One Dallas Center, 350 N. St. Paul, Suite 1300,
Dallas, Texas. Apex’s parent, Apex Fintech Solutions LLC is headquartered in
Manhattan at the same location that its parent, Peak6, has offices.
23.
Apex is a broker-dealer registered with the SEC and a member of
FINRA.
24.
Apex was a broker-dealer for certain direct customers and a clearing
broker-dealer for Introducing Broker-Dealers and their Shared Customers.
FACTUAL ALLEGATIONS
25.
Apex provides clearing broker services to correspondent introducing
broker-dealers and customers introduced to Apex by those introducing broker-
dealers. These customers are shared as between Apex and Apex Introducing Broker-
Dealers (“Shared Customers”). Apex also serves as a broker-dealer to direct
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customers not introduced to them through an introducing broker.
26.
Apex’s Introducing Broker-Dealers, who have less operational
capability and regulatory capital, and lack direct access to trading platforms and
clearinghouses, rely on Apex to access those capabilities and services.
27.
Apex, in performing its broker-dealer, clearing, and settlement
functions as a broker-dealer and a clearing broker, is a member of the National
Securities Clearing Corporation (NSCC).
28.
In January 2021, Apex was a broker-dealer and a clearing broker-dealer
for Shared Customers, including Plaintiffs, who traded in the Suspended Stocks on
Apex’s Introducing Broker-Dealers’ platforms. Apex’s Introducing Broker-Dealers
during the Class Period include, but are not limited to, Ally, Dough LLC, M1
Finance, Public.com, Stash, and Webull.
29.
On January 28, 2021, Apex blocked its direct customers and required all
of its Introducing Broker-Dealers to block their Shared Customers, including
Plaintiffs, and all other members of the Class, from purchasing Suspended Stocks,
or call options on such stocks, while allowing selling to continue.
30.
Apex lacked the tools needed to manage the known risks associated
with increased trading volume and price volatility, culminating in the events of
January 28, 2021 as described herein.
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A. Industry Standard of Care
i.
Managing Market Risk: Collateral Deposit and Capital
Requirements
31.
To manage risk to the markets and utilize the Depository Trust Clearing
Corporation’s (DTCC) Insurance Services, broker-dealers such as Apex become
NSCC members. The DTCC keeps a record of the stocks owned through the clearing
brokerage firms for NSCC members, including Apex, and establishes financial
requirements for clearing brokerage firm members, which include deposit
requirements designed to reduce risk to the DTCC.
32.
NSCC is the central counterparty that clears cash transactions in the
U.S. equities markets, netting securities deliveries and payments among NSCC’s
clearing members, and guaranteeing completion of trades even if one party to the
transaction defaults.
33.
As President and Chief Executive Officer of the DTCC, the Fixed
Income Clearing Corporation (“FICC”), and NSCC, Michael C. Bodson (“Bodson”),
explained:
The U.S. Markets are multi-layered, and customers
generally execute trades through one or more brokers or
broker-dealers. NSCC direct clearing members are
responsible for completing their customers’ trades at the
NSCC. NSCC’s rules outline clear financial and operation
risk management obligations that apply to direct clearing
members.
DTCC Testimony to U.S. House Financial Services Committee (“Bodson DTCC
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Testimony”), at 1 (May 6, 2021).
34.
Apex was at all times fully aware of its obligations to maintain requisite
capital levels, satisfy cash deposit and collateral requirements with the DTCC and
NSCC, and the serious consequences of violating those obligations.
35.
To clear and settle customer transactions, each trading day by 10:00 am
ET, broker-dealers like Apex have to meet the deposit requirements required by the
DTCC to support their customer trades between the trade date and the date the trades
settle. On some days broker-dealers may be able to withdraw money that they left
on deposit, whereas on other days they may be required to deposit additional money,
depending on that day’s requirement. Firms like Apex also know that DTCC may
assign a volatility multiplier on certain securities which the DTCC perceives as
having more risk.
36.
Based on its customers’ orders, Apex is able to (i) monitor its
anticipated DTCC deposit requirements in real time (or near real time); and (ii)
monitor its ability to meet anticipated or actual DTCC deposit requirements in real
time (or near real time).
37.
NSCC’s volatility-based margin requirements stipulate the capital
charges that should be borne by firms based on various measures of the volatility of
firms’ stock positions. This analysis generally uses several metrics to measure
volatility of the stock positions and applies a “Gap Risk” measure for firms that have
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high concentrations in volatile stocks and a “Portfolio Margin Floor” measure to
ensure that the margin requirement does not drop below certain value-based
measures. These margin requirements are intended to protect DTCC members and
the market as a whole from the systemic risk that highly volatile stocks can produce,
especially when a broker’s position has significant risk concentration in such stocks.
38.
As explained by Bodson in his Congressional testimony, margin
requirements protect NSCC and all market participants against clearing member
defaults. NSCC collects clearing funds, or margin, at the start of each day and
intraday in volatile markets. According to Bodson, the calculation and timing of
these margin requirements are known to every member, including Apex.
39.
Apex knew or should have known of its anticipated DTCC deposit
requirements given the trading activity in the Suspended Stocks during the week
prior to January 28, 2021, and that failure to prepare for the anticipated DTCC
deposit requirements would impair its ability to perform its obligations as a broker-
dealer and a clearing broker to its large customer base, as required under SEC and
FINRA rules and regulations.
40.
Pursuant to 17 C.F.R. § 240.15c3-1 (the “Net Capital Rule”), the SEC
requires broker-dealers to “at all times have and maintain net capital” no less than
the greatest of the minimum requirement applicable to its business. 17 CFR §
240.15c3-1(a). The Net Capital Rule is designed to require broker-dealers to
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maintain sufficient liquid assets to meet all obligations to customers.
41.
By virtue of obligations under the law and industry rules and practice,
broker-dealers cannot simply unilaterally decline to accept a customer’s order
because it is inconvenient or unprofitable, or because a clearinghouse demands
additional capital.
42.
Apex did not properly respond to the NSCC in a manner that should be
expected. Instead, it chose to interfere with the market and its Shared Customers.
ii.
Governing Broker FINRA Rules and Regulations
43.
“Broker-Dealers,” including Apex, are required to register as members
of self-regulatory organizations (“SROs”), such as FINRA, the largest non-
governmental securities regulator for broker-dealers in the United States, and to
comply with all applicable state laws and regulatory requirements.
44.
FINRA rules are designed primarily to protect customers, investors,
and efficient markets. FINRA Rule 2010 sets forth the guiding principle which every
brokerage firm in the United States must follow and mandates, “in the conduct of its
business, [brokerages] shall observe high standards of commercial honor and just
and equitable principles of trade.” (Emphasis added). FINRA Rule 2010 (Standards
of Commercial Honor and Principles of Trade); NASD Interpretive Material 2310-
2, Fair Dealing with Customers (“Implicit in all member and registered
representative relationships with customers and others is the fundamental
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responsibility for fair dealing. Sales efforts must therefore be undertaken only on a
basis that can be judged as being within the ethical standards of [FINRA’s] Rules,
with particular emphasis on the requirement to deal fairly with the public.” FINRA
reiterates in Regulatory Notice 21-12, “the foundation of the securities industry is
fair dealing with customers. . . even during times of market stress.” (emphasis
added); see also FINRA By-Laws, Article XI (authorizing the Board to adopt rules
or amendments to, among other things, “protect investors and the public interest, . .
. promot[e] [] fair practices . . .”).
45.
In assuring investor protection and the integrity of the firm’s financial
condition, FINRA obligates broker-dealers, and Apex had a duty to establish,
maintain, and enforce a supervisory system, which includes monitoring its
technology and other risks, including credit and other systemic risks (FINRA Rule
3110, Supervision), and engage in continual risk management to ensure
continuation of its trading and financial “mission critical systems.” (FINRA Rule
4370, Business Continuity Plans). NASD Notice to Members 99-92, “Broker-Dealer
Risk Management Practices Joint Statement of the SEC, NASD and NYSE” (July
29, 1999) (emphasis added).
46.
As a FINRA registered broker-dealer, Apex is supervised by FINRA
and subject to its Rules.
47.
As a broker-dealer, Apex owes Plaintiffs and the Class a duty of due
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care and loyalty, including, inter alia, handling customer orders promptly and in a
manner best suited to serve the customer’s interests, not arbitrarily shutting down
the ability to purchase, and refraining from putting their own interests ahead of their
customers interests. Moreover, as further described below, broker-dealers owe a
duty to reasonably ensure that they can continue to provide investors access to the
securities markets during times of extreme market volatility.
48.
Additionally, broker-dealers (and importantly here) have a duty and are
obligated to implement and utilize daily (even hourly) risk assessment tools to
manage potential operational and credit risks.
49.
Violations of FINRA rules by broker-dealers can be used as evidence
of negligence. See Brink v. Raymond James & Assocs., Inc., 892 F.3d 1142 (11th
Cir. 2018).
iii.
Circuit Breakers: Procedures for Brokers to Operate
During times of Extreme Market Volatility
50.
Broker-dealers are expected to ensure that they can continue to provide
access to the securities markets during periods of extreme market volatility.
51.
In fact, FINRA reiterated this obligation of broker-dealers to
effectively manage their liquidity during extreme market conditions in Regulatory
Notice 21-12, which was issued on March 18, 2021, directly in response to the events
giving rise to this action. FINRA was clear in its reminder: “Member firms should
maintain strong procedures, thoughtfully crafted in advance, to reasonably ensure
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that they can continue to provide investors access to the securities markets during
times of extreme market volatility, as in the past several months.” These include
“liquidity management practices to ensure the firm is able to continue to provide
customers with access to the markets despite abnormal liquidity demands.” See
Regulatory
Notice
21-12,
available
at
https://www.finra.org/rules-
guidance/notices/21-12.
52.
There is an industry-recognized mechanism by which trading is halted
during volatility: A circuit breaker is an emergency-use regulatory measure imposed
by an exchange to temporarily halt trading on an exchange. Circuit breakers are in
place to try to curb in panic-selling. They can also be triggered on the way up with
manic-buying.
53.
However, when an exchange employs a “circuit breaker” it is done for
a limited time period, typically lasting mere minutes—not hours or days, which is a
figurative lifetime in the multi-trillion-dollar public markets.
54.
Moreover, no mechanism exists by which an exchange imposes a
circuit breaker that restricts only one side of the trading such that sales are permitted,
but purchases are not. Either all trading is or is not halted by an exchange. Exchanges
do not employ “circuit breakers” to allow only one-sided trading.
55.
Here, the exchanges did impose very limited temporary trading halts
regarding the buying and selling of the Suspended Stocks on January 28, 2021.
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56.
Nowhere do the securities laws or rules contemplate that any broker-
dealer will ever employ a self-declared circuit breaker and unilaterally halt trading
or allow only one-sided trading for an indefinite time period in any security without
direction from an exchange. This is part of what makes Defendant’s actions, even if
taken over a short period of time, extraordinary, unprecedented, and unlawful.
57.
To be clear, Plaintiffs are not alleging that Defendants are barred from
placing reasonable restrictions on trading. Defendants are barred however from
using their unpreparedness for events – as here - to only restrict partial – one-way
trading (purchases) where the intent of such restriction, as here, was to decrease the
value of the securities.
B. The Events of January 2021
i.
Increased Trading Volume and Price Volatility Ahead of January
28, 2021
58.
“Short squeezes” and market volatility are frequent occurrences in
securities trading. Leading up to January 28, 2021, as Apex well knew or had reason
to know, individual investors increased demand for the Suspended Stocks, causing
their price to increase.
59.
Some institutional investors also increased demand for the Suspended
Stocks, including Scion Asset Management, LLC, which spent approximately $15
million purchasing GME, and Ryan Cohen, founder of Chewy.com, who invested
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$76 million in GME. During this time, certain hedge funds and market makers were
shorting the Suspended Stocks.
60.
Plaintiffs and Class members continued to go long on GME and other
Suspended Stocks. Given the operation of a free and open market, the prices of GME
and other Suspended Stocks were bid up and prices increased. GME, for example,
increased 78.46% from $43.03 per share on January 21, 2021, to $76.79 per share
on January 25, 2021. This exposed short sellers in those stocks to substantial losses.
61.
Despite certain investors’ short selling, which tends to drive the prices
down, the market volatility brought on by increased demand for the Suspended
Stocks drove the market prices up, exposing short sellers to massive losses on their
short positions.
62.
Increasing prices forced certain holders of short positions to either
close-out their short positions by purchasing shares or post additional capital to
ensure that they had enough money to re-purchase and return the shorted stocks.
63.
As holders of short positions re-purchased the shorted stocks, this
covering put further upward pressure on the stock prices which put further pressure
on short sellers to purchase the Suspended Stocks at the current (and rising) prices
in order to cover their losses and forestall potentially greater losses. This “pressure”
is what is referred to as a “short squeeze.”
64.
In a “short squeeze,” individual investors like Plaintiffs and the Class
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will benefit (absent one-sided market restrictions) as the value of the stocks they
purchased increases. Short sellers, on the other hand, risk further losses, as stock
prices rise as a natural consequence of market forces.
65.
Substantial trading activity in the stock and options contracts among
the Suspended Stocks continued on January 27, 2021. On that day, the prices of the
Suspended Stocks increased as trading volumes in U.S. cash equities and options hit
24.5 billion shares traded and 57.1 million contracts traded. GME’s stock peaked at
$380.00, before reaching a closing high of $347.51, a 134.84% increase from the
previous day. AMC’s share price increased by approximately 300% from the
previous day’s close. KOSS’s share price increased by approximately 480% from
the previous day’s close.
66.
The SEC Staff, but not the Commission, reported on page 22 in “Staff
Report on Equity and Options Market Structure Conditions in Early 2021” dated
October 14, 2021 (“SEC Staff Report”) available at https://www.sec.gov/files/staff-
reportequity-options-market-struction-conditions-early-2021.pdf with reference to
GME that:
Yet while the swings in GME’s share price and volume attracted
significant attention, they were not unusual for January 2021. For instance, single-
day price changes on January 27 from the closing prices on January 26 for KOSS
(480.0%), AMC (301.2%), NAKD (252.3%), and Express, Inc. (symbol: EXPR)
(214.1%) were larger than any single-day GME price change… In fact, since 2020
began, 134 common stocks had at least one one-day price increase greater than
GME’s largest one-day price increase…(internal citations omitted).
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67.
Moreover, the SEC Staff Report noted as to GME and the increased
trading volume in January 2021, “[t]he underlying motivation of such buy volume
cannot be determined; perhaps it was motivated by the desire to maintain a short
squeeze. Whether driven by a desire to squeeze short sellers and thus to profit from
the resultant rise in price, or by belief in the fundamentals of GameStop, it was the
positive sentiment, not the buying-to-cover, that sustained the weeks-long price
appreciation of GameStop stock.” SEC Staff Report at 26.
68.
When Apex undertook the extraordinary measure on January 28, 2021
of suspending and directing the suspension of the purchasing of the Suspended
Stocks, stocks that were in great demand, Apex caused the price of each of the
Suspended Stocks to go down and to trade at lower prices than they would have
traded for absent Apex’s misconduct. Moreover, Apex undertook the extraordinary
measures on January 28, 2021 of suspending trading in the Suspended Stocks
without a plan reasonably designed to correlate its supposed reduction of risk to its
extraordinary action.
ii.
Apex Mandates Unprecedented, One-Sided Trading Suspensions
69.
At 5:00 p.m. EST, on January 27, 2021, the SEC released a statement
that it was “aware of and actively monitoring the on-going market volatility in the
options and equities markets,” but neither the SEC nor any other government agency,
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including DTCC, issued any directive to restrict trading in the Suspended Stocks.
70.
On the morning of January 28, 2021, Apex blocked its direct customers
and directed its Introducing Broker-Dealers to block its Shared Customers from
purchasing shares of AMC, GME, and KOSS. Apex’s decision to implement this
unilateral one-way trading suspension (halting of the buying, but not the selling) was
designed to and foreseeably impeded additional price appreciation and suppressed
the prices of the Suspended Stocks during and beyond the Class Period causing
ascertainable damages and injury.
71.
Anthony Denier (“Denier”), the CEO of Webull, an Apex introducing
broker-dealer that restricted trading in the Suspended Stocks, placed the blame
squarely on Apex. According to Denier, the collateral required by Apex for GME
increased by 100% and Apex had informed him that Webull needed to shut off the
ability to open new positions in certain stocks. Denier further said that the
restrictions originated the morning of January 28, 2021, and Webull was informed
that Apex was instructed by DTCC that it was increasing the collateral needed to
settle trades for the Suspended Stocks.
72.
In written responses to the House Committee on Financial Services on
February 9, 2021, WeBull acknowledged that “[o]n January 28, 2021, at 11:30 AM
EST Webull announced on Twitter and Facebook that it was restricting trading in
GME, AMC, and KOSS.” In restricting the stocks, WeBull posted, “Please note that
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we will no longer allow clients to open new positions in following three stocks:
AMC, GME and KOSS.” On the same day between 2:42 PM and 2:43 PM, Webull
posted an update to Twitter and Facebook lifting the restriction.
73.
Other Apex Introducing Broker-Dealers, including Ally, Dough,
Public.com, SoFi, Stash, and Tastyworks, also reported that Apex had instructed
them to halt all opening (purchase) transactions of GME, AMC, and KOSS on their
platforms.
74.
For example, Dough tweeted, “[o]ur clearing has notified us that we
must set GME, AMC, and KOSS to closing only. We will comply.” Public.com
similarly tweeted, “[o]ur clearing firm, Apex Holdings, has decided to halt the
buying of $KOSS, $GME, and $AMC.”
75.
Various Introducing broker-dealers, including SoFi, publicly stated
their disagreement with Apex’s unprecedented unilateral one-way trading
suspension. Public.com subsequently tweeted “[w]e disagree with this decision and
are working hard for our members to resolve the issue.”
76.
Apex customers complained directly to Apex about the impact of its
decision to halt its customers’ ability to buy. For example, one Apex customer
emailed Apex and asked to
[E]scalate this immediately. The longer this goes on the
worse it is for us. We have carefully built our business over
the years and taking advantage of rare opportunities like
this are very important. We need service from APEX on
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the day it really matters. We truly believe this is
unacceptable and unnecessary. We are willing to put in
risk mitigating criteria such as: We will trade no more than
300 shares. If shorting is somehow a larger perceived risk
at 300 shares, then we will go long-only. Please
understand that 300 shares of GME is currently worth
around $75k. At its all-time high of $500 that is about
$150k. Even if the stock halted and went to zero we have
plenty in the account…to cover this. The same is true for
KOSS and AMC (which are far less expensive). We will
trade no more than 300 of each. Please let me know who
we can speak too and when.” When this request was
circulated internally to senior leadership at Apex, Apex’s
head of institutional clearing responded by email, “that’s
a reasonable ask from my perspective.”
77.
Apex restricted purchasing across the board to all their clients,
including their Apex Introducing Brokers and Shared Customers, based on higher
numbers Apex received from the DTCC on January 28, 2021, at 9:30 a.m. EST.
Apex’s internal documents reveal that it did not even try to confirm the high number
or seek to negotiate it down.
78.
Instead, Apex communicated to the Apex Introducing Broker-Dealers,
such as Public.com on January 28, 2021, at 10:30:40 a.m., in an email entitled
“EMERGENCY NOTICE: GME, AMC, and KOSS Liquidations Only, Thursday,
January 28, 2021”,
Apex would like to inform you that the below listed stocks
should be liquidation only on your systems whether proprietary
or through a 3rd party. This would include both equities and all
option series, most importantly the January 29th 2021 expiration.
These positions have been previously set at 100% margin and
will continue for the foreseeable future. GME: GameStop AMC:
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AMC Entertainment KOSS: Koss Corp.
Please note that there might be additional securities added to
this restriction list before market close today, additional
messages may follow. If you have any questions please contact
our Risk Department (risk@apexclearing.com), or your Client
Partner/Relationship Manager.
Thank you,
Apex Clearing Corporation
79.
In documents submitted to regulators, Apex sets forth the following
timeline: “On January 28, 2021 at approximately 9:30 a.m. Eastern time (8:30 a.m.
Central time), Apex received from NSCC a report showing a projection of a
substantially increased clearing deposit requirement for Apex.” At approximately
11:31 a.m. Eastern time (10:31 a.m. Central), “Apex sent a client communication to
all clients instructing them to restrict the purchase of new buy positions in AMC,
GME and KOSS… The restrictions were imposed uniformly across all Apex
clients.” At approximately 11 a.m. (presumably Eastern time; 10:00 a.m. Central
time), “Apex received an updated NSCC report showing a potential collateral
deposit requirement that was elevated but lower than the 9:30 a.m. report and in line
with reports Apex had received from NSCC prior to 9:30 a.m. that day. After
confirming with NSCC that the new report was accurate, Apex communicated to all
clients the lifting of the restriction of new purchases of AMC, GME and KOSS at
approximately [2:55 p.m. Eastern Time] 1:55 p.m. [Central Time] on January 28,
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2021.”
80.
Apex has maintained that, “[t]he reason for the …trading restrictions
that Apex imposed regarding purchases of AMC, GME and KOSS relates directly
to the potential future collateral requirement that NSCC appeared it may impose on
Apex as part of the margin system NSCC maintains to comply with the SEC’s
standards for covered clearing agencies.”
81.
Yet, by its own admission, by 11:00 a.m. (presumably, Eastern time;
10:00 a.m. Central Time), Apex knew from the DTCC that the collateralization
number was in fact lower and in line with its expectations and ability to pay, but
waited, according to internal documents, until 2:55 p.m. Eastern to lift the trading
suspension and notify Apex Introducing Broker-Dealers to allow purchases again.
82.
Moreover, DTCC’s document production demonstrates that DTCC
certainly knew by 10:41 a.m. Central Time (11:41 a.m. Eastern) that Apex’s
collateral exposure was going down and that there was a call between DTCC and
Apex senior management six minutes later at 10:47 a.m. Central Time (11:47 a.m.
Eastern Time).
83.
In other words, Apex placed the unprecedented, unilateral one-way
trading suspension at approximately 10:31 a.m. Central time: 1) prior to any
consultation with the DTCC in order to confirm the higher collateral number
transmitted to Apex at approximately 8:30 a.m. Central time; 2) approximately 30
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minutes after it had already been informed by the DTCC at 10:00 a.m. Central time
that the collateral number was lower and at a level that Apex did not believe
warranted the trading suspension; and 3) approximately 16 minutes before having
the opportunity to confirm the lower collateral number with DTCC telephonically.
84.
In light of information known to Apex, by its own accounting, Apex
should not have implemented the unprecedented, unilateral one-way trading
suspension when it did, and, in any event, it should have removed the suspension
within minutes of implementing it rather than allow the trading suspension to be in
effect for approximately three hours and twenty five minutes.
85.
In fact, as Apex has admitted, “NSCC did not collect or demand
additional collateral from Apex intraday in this instance.” (Id.)
86.
Not only was Apex not required to pay any additional collateral on
January 28, 2021, Apex admitted subsequently that there never an issue as to its
ability to meet its capital requirements.
87.
On March 4, 2021, former Apex President, Tricia Rothschild, in an
interview with “Financial Planning”, was asked whether she was “able to specify
whether Apex Clearing had to raise capital” in connection with the events of January
28th. At no time did Rothschild suggest that Apex needed to raise capital on January
28, 2021. Instead, Rothschild stated, “[w]e have headroom in terms of the capital
available to us on our balance sheet. We have lines of credit that we can call on as
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needed.”
88.
Similarly, in an earlier draft “Talking Points For Use With Clients-
January 31,” Apex was unprepared to answer the most basic questions it anticipated
being asked by its clients, such as, “You are affiliated with Peak6. Can’t Peak6 infuse
the business with capital? [need answer].”
89.
On January 28, 2021 PEAK6 Investments LLC (“PEAK6”) was the
majority owner of Apex Clearing Holdings LLC, (“ACH”). Apex, on January 28,
2021 was a wholly owned subsidiary of ACH. Plaintiffs are unaware of any attempt
by Apex to seek any cash infusion from any source including PEAK6 or any
financial institution on January 28, 2021 in order to address any collateral
requirement of DTCC. Instead, Apex imposed the one-way trading suspension
which harmed its own customers, its Shared Customers and the market.
90.
On January 29, 2021, Apex again saw the buildup in trading volume in
AMC and GME and was discussing internally the possibility of imposing further
limits on these securities. Apex’s Chief Administrative Officer, William Brennan,
noted, “we can’t shut down access to the names. We are getting killed in the press.
I told Bill to have Matt raise a few hundred in capital this weekend.”
iii.
Almost All Other Broker-Dealers Did Not Impose Similar One-
Sided
Restrictions,
Which
Regulators
Criticized
as
“Disadvantageous” to Investors
91.
Broker-dealers who had unilaterally suspended trading on January 28,
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2021, knew that their aggressive actions to restrict trading crossed the boundaries of
acceptable behavior.
92.
Unlike
Apex,
other
broker-dealers
with
long-standing
risk
management practices did not take the extraordinary measure of unilaterally
implementing one-sided trading restrictions on stocks at issue here.
93.
For example, neither Charles Schwab & Co. nor TD Ameritrade halted
buying or selling of any stocks or basic options during the Class Period. Instead,
amidst price volatility, both firms “put in place some restrictions on certain types of
options transactions to help mitigate risk,” adjusted “margin requirements in highly
volatile securities,” and restricted advanced options strategies such as selling naked
call options. See Charles Schwab Corporation Statement on Recent Trading Activity,
Charles
Schwab
Corp.,
https://www.aboutschwab.com/schwab-statement-on-
recent-trading-activity (posted Jan. 28, 2021).
94.
These steps, as opposed to those taken by Apex, arguably
“appropriately balance investors’ ability to trade these securities with the firm’s duty
to protect itself from potentially absorbing losses incurred by an individual’s trading
or investing strategies.” Id.
95.
On January 29, 2021 the SEC issued a statement about brokers’
responses to volatility in the Suspended Stocks, noting that, “The Commission will
closely review actions taken by regulated entities that may disadvantage investors
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or otherwise unduly inhibit their ability to trade certain securities.” See Statement
of Acting Chair Lee and Commissioners Peirce, Roisman, and Crenshaw Regarding
Recent
Market
Volatility,
available
at
https://www.sec.gov/news/public-
statement/joint-statement-market-volatility-2021-01-29 (emphasis added).
C. THE APEX CUSTOMER AGREEMENTS
96.
Apex required each of its Direct Customers and each of its Shared
Customers to enter into Customer Agreements.
97.
These Agreements did not pertain to any singular particular
transaction(s), did not permit for the specific performance of any particular trade(s)
and did not contemplate the permitting of the sales of securities in liquid stocks while
halting purchases of those same securities. At no time did any Direct Customer or
Shared Customer consent to the restrictions imposed by Apex complained of herein
which were designed to and did force the price of the Suspended Stocks to go down
to the detriment of Plaintiffs and the putative Classes. In addition, each Shared
Customer, and, on information and belief, each Direct Customer is provided with a
Customer Information Brochure that provides, "[w]e may refuse to accept any order
if we in good faith determine that we should." (emphasis added). This language too
did not contemplate the one- sided trading suspension Apex imposed for the purpose
of driving down the price of the Suspended Stocks to the detriment of its customers.
Moreover, as alleged herein, Apex did not impose the trading suspension in “good
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faith.”
CLASS ACTION ALLEGATIONS
98.
Plaintiffs bring this case individually and pursuant to Federal Rules of
Civil Procedure 23(a), 23(b)(2) and (b)(3) on behalf of the following proposed
nationwide classes:
I.
Nationwide Investor Class
All persons or entities in the United States that:
i.
held shares, or call options for shares, of any of GameStop Corp.
(GME), AMC Entertainment Holdings Inc. (AMC), or Koss
Corporation (KOSS) (the “Apex Suspended Stocks”), as of the end
of the day on January 27, 2021, and
ii.
sold such shares, or call options for shares, of the Suspended Stocks,
or were forced to let such call options expire worthless, between
January 28, 2021 and February 23, 2021 (the “Class Period”); and
iii.
suffered damages.
II.
Apex Broker-Dealer Class
i.
All Apex broker-dealer direct customers and Shared Customers who
held shares of AMC, GME, and/or KOSS stocks or call options for
shares of AMC, GME, and/or KOSS as of the end of the day on
January 27, 2021, who sold any such shares or call options, or were
forced to let such call options expire worthless, during the Class
Period, and suffered damages;
ii.
All Apex broker-dealer direct customers and Shared Customers who
placed a sale order on shares, or on call options for shares, of AMC,
GME, and/or KOSS, whose orders were delayed during the Class
Period, and suffered damages; and
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iii.
All Apex broker-dealer direct customers and Shared Customers who
placed a buy order for shares, or for call options for shares, of AMC,
GME, and/or KOSS, whose order was initially accepted by Apex or
the Apex Introducing Broker-Dealers, whose order was ultimately
rejected by Apex or the Apex Introducing Broker-Dealers during the
Class Period, and suffered damages.
Excluded from the proposed Classes are:
i.
Any Defendant named herein;
ii.
Any of the Defendant’s parent companies, subsidiaries, and
affiliates;
iii.
Any of the Defendant’s officers, directors, management, employees,
or agents;
iv.
Counsel for any of the parties to this action;
v.
All governmental entities; and
vi.
The judge and chambers staff in this case, as well as any members
of their immediate families.
This action has been brought and may properly be maintained as a class action
against Apex pursuant to the provisions of Federal Rule of Civil Procedure 23.
99.
Numerosity: The precise number of members of the proposed Classes
is unknown to the Plaintiffs at this time; however, based on information and belief,
members of the Classes, including sub-classes, number in the hundreds of thousands
if not millions. Each Class is so numerous that joinder of all members in a single
action is impracticable. All members of the Classes may be notified of the pendency
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of this action by reference to Apex’s records or by other alternative means.
100. Commonality: Numerous questions of law and fact are common to the
claims of the respective Plaintiffs and members of the proposed Classes. These
common questions of law and fact exist as to all members of the proposed Classes
and predominate over questions affecting only individual members of the proposed
Classes. These common legal and factual questions include, but are not limited to,
the following:
i.
Why Defendant restricted trading on January 28, 2021;
ii.
Whether Defendant’s conduct in connection with the Suspended Stocks
was negligent, a breach of fiduciary duty, alternatively breached the
implied covenant of good faith and fair dealing and/or alternatively
tortiously interfered with a business relationship;
iii.
Whether Defendant breached its duty of care to its broker-dealer
customers and Shared Customers when it suspended purchases in the
Suspended Stocks and also purposefully instructed its Introducing
Broker-Dealers to remove the ability to buy or view certain securities
on their respective platforms;
iv.
Whether Defendant violated regulatory obligations under federal
statutes and SRO rules;
v.
Whether Defendant breached legal, regulatory, and licensing
requirements by failing to provide adequate access to financial services;
vi.
Whether the Plaintiffs and members of the proposed Classes were
injured by the Defendant’s conduct, and if so, the appropriate measure
of damages.
101. Typicality: The claims of each named Plaintiff who is a Shared
Customer of Apex and the introducing Broker-Dealer are typical of the claims of the
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direct customers of Apex and all Shared Customers. Each purchased one or more of
the Suspended Stocks through Apex prior to January 28, 2021 and were harmed by
Apex’s wrongful conduct during the Class Period.
102. Adequate Representation: Plaintiffs who had a broker-dealer and/or
clearing broker relationship with Apex will fairly and adequately represent the
interests of the putative Classes in that they have no conflicts with any other
members of the corresponding Classes. Plaintiffs have retained competent counsel
experienced in prosecuting complex class actions in federal court, including those
involving financial services, and they will vigorously litigate this class action on
their behalf and on behalf of members of the Class.
103. Predominance and Superiority: There is no plain, speedy, or
adequate remedy other than by maintenance of this class action. A class action is
superior to other available means, if any, for the fair and efficient adjudication of
this controversy. Prosecution of separate actions by individual members of the
proposed Classes would create the risk of inconsistent or varying adjudications,
establishing incompatible standards of conduct for broker-dealers.
104. Additionally, few, if any, members of the proposed Classes could or
would sustain the economic burden of pursuing individual remedies for the
Defendant’s wrongful conduct and it would thus be grossly impracticable because
the cost of vindicating an individual class member’s claim would likely exceed the
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value of the claim. Treatment as a class action will achieve substantial economies of
time, effort, and expense, and provide comprehensive and uniform supervision by a
single court. This class action presents no material difficulties in management and
provides the benefits of a single adjudication.
CAUSES OF ACTION
COUNT I
Negligence
105. Plaintiffs hereby incorporate by reference paragraphs 1 through 104 as
though fully set forth herein.
106. As a securities broker-dealer and clearing broker-dealer, Apex owes a
duty of care to investors to act in accordance with the standard of care used by other
broker-dealer professionals.
107. In offering both trading and clearing services, Apex assumed a duty to
ensure that the trading platforms it provided and/or supported were sufficiently
equipped to reliably deliver such services under reasonably foreseeable increasing
customer demands and resulting market conditions at issue in this case.
108. Apex had a duty to exercise reasonable care in safeguarding the
investments of Plaintiffs and Class members by providing a platform and/or
supporting a platform to execute trades that is fair and promptly provides execution
of customers trade orders in a lawful manner.
109. By impeding its customers’ and Shared Customers’ ability to purchase
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the Suspended Stocks and by failing to take reasonable steps to make sure that its
trading platform was available and/or supported in times of market volatility Apex
violated these duties.
110. Apex breached these duties and deviated from the standard of care
when it suspended its customers’ ability to purchase shares of AMC, GME, and/or
KOSS and when Apex demanded that Apex Introducing Broker Dealers suspend
their Shared Customer’s ability to purchase shares of GME, AMC, and KOSS,
without even trying to confirm the collateralization number received from DTCC at
approximately 9:30 a.m. on January 28, 2021, or seeking to negotiate it down.
111. Apex breached these duties and deviated from the standard of care
when it learned shortly thereafter that the collateralization number was in fact lower
than originally communicated to it and was, in fact, at a level that Apex believed
warranted lifting the suspension of the purchase of stock, yet failed to lift the
suspension of the purchase of shares in GME, AMC and KOSS until hours later.
112. Apex breached these duties and deviated from the standard of care
when it failed to take reasonable steps to mitigate its risk, including, but not limited
to raising additional capital rather than suspend its customers, including Shared
Customers’, ability to purchase shares of GME, AMC, and/or KOSS.
113. As a direct and proximate result of Apex’ conduct as alleged herein,
the Plaintiffs and the Classes have been injured and sustained damages.
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COUNT II
Breach of Fiduciary Duty
114. Plaintiffs hereby incorporate by reference Paragraphs 1 through 104 as
though fully set forth herein.
115. As an agent of the Plaintiffs, in connection with trades placed or to be
placed by the Plaintiffs, Apex owed a fiduciary duty of care, loyalty, and good faith
to Plaintiffs, Apex’s direct broker-dealer customers, Apex’s broker-dealer Shared
Customers and the members of the Apex Broker-Dealer Class, by virtue of, among
other things, being an agent of the Plaintiffs as well as a provider of financial
services and a registered securities broker-dealer.
116. As a broker-dealer and agent of the Plaintiffs, in connection with
trades placed or to be placed by the Plaintiffs, Apex owed fiduciary duties of care,
good faith, honesty, and loyalty, to the Plaintiffs and the Apex Broker-Dealer Class,
which include, without limitation, the duty to take reasonable steps to provide
an open trading platform free of self-imposed trading restrictions and the duty not to
act out of a conflict of interest, nor to prefer the fiduciary’s self-interest over that of
its customers.
117. Apex breached its fiduciary duties to the Plaintiffs and the Apex
Broker-Dealer Class by acting in its own self-interest and contrary to the interests of
its direct customers and Shared Customers by suspending customers’ ability to
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purchase shares of the Suspended Stocks so as to benefit itself at the expense
of Plaintiffs and the Class.
118. Defendant’s efforts went well beyond mere ministerial clearing
conduct in that Defendant improperly and unjustifiably directed the Introducing
Brokers to not allow one way trading in the Subject Stocks by Shared Customers.
119. Defendant did not engage in halting the purchasing of the Suspended
Stocks for merely the brief period where it reasonably believed a higher deposit
requirement might be imposed by the DTCC, but instead engaged in the unjustified
conduct of halting any buying of the Subject Stocks for an unjustified period of
time.
120. Apex also owed fiduciary duties to the Plaintiffs and to the Apex
Broker-Dealer Class as a clearing broker-dealer and breached those duties to
Plaintiffs and all Shared Customers in that Apex was actively and directly involved
in the Introducing Broker-Dealers’ actions by directing that the Introducing Broker-
Dealers suspend purchases of the Suspended Stocks.
121. As a direct and proximate result of Apex’s conduct, Plaintiffs and the
Apex Broker-Dealer Class has been injured and sustained damages.
COUNT III
Breach of the Implied Covenant of Good Faith and Fair Dealing
122. Plaintiffs hereby incorporate by reference Paragraphs 1 through 104 as
though fully set forth herein.
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123. Plaintiffs allege, in the alternative to Counts I and II, that Defendant
breached its implied duties of good faith and fair dealing owed to Plaintiffs and the
Apex Broker-Dealer Class.
124. As a condition to opening a Direct or Shared Customer Account with
Apex, such customers are required to accept a Customer Agreement.
125. Every agreement imposes upon each party a duty of good faith and
fair dealing in the performance of the agreement such that neither party shall do
anything which will have the effect of destroying or interfering with the right of
the other party to receive the benefits of the agreement.
126. The implied covenant of good faith and fair dealing herein were not
in conflict with the express terms of the agreement and, in fact, were wholly
consistent with both the terms of the agreement and the intent of the agreement.
127. Apex by and through the conduct alleged hereinabove, breached the
implied covenant of good faith and fair dealing by knowingly restricting one-sided
trading (purchases) on January 28, 2021 with the intent of causing the trading price
of the Suspended Stocks to go down causing harm, losses and damages to
Plaintiffs and the Apex Broker-Dealer Class who had purchased the Suspended
Stocks pursuant to the Customer Agreement.
COUNT IV
Tortious Interference with Business Relationship
128. Plaintiffs hereby incorporate by reference Paragraphs 1 through 104 as
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though fully set forth herein.
129. Plaintiffs allege in the alternative to Counts I and II, even absent an
enforceable contract allowing for specific performance, but in recognition of the fact
that Plaintiffs had customer agreements with the Introducing Brokers, that Apex
tortiously interfered with the business relationship between Plaintiffs and the
Introducing Broker-Dealers.
130. As alleged, Plaintiffs, as Shared Customers, have a business
relationship with Ally and Webull, under which Plaintiffs have legal rights.
131. Apex, the clearing broker to the Introducing Broker-Dealers, knew of
the business relationship between its Introducing Broker-Dealers and Plaintiffs, as
Shared Customers.
132. Apex unjustifiably, without privilege, and in bad faith, tortiously
interfered with the business relationship between Plaintiffs and the Introducing
Broker-Dealers.
133. By failing to have a reasonable plan in place to control its risk exposure,
Apex responded to the supposed exposure to climbing stock prices by willfully and
intentionally suspending the ability of all of its customers and its Shared Customers
to purchase the Suspended Stocks for approximately three hours and twenty-five
minutes forcing those stock prices to diminish, which tortiously interfered with
Plaintiffs’ business relationships with the Introducing Broker-Dealers.
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134. Apex was on notice from DTCC that Apex’s collateralization
requirement was within Apex’s ability to pay and was at a level that Apex felt no
need to impose the trading suspension for, yet persisted in maintaining the trading
suspension on January 28, 2021 for hours, thus tortiously interfering with Plaintiffs’
business relationships with the Introducing Broker-Dealers.
135. The direct and proximate cause of Apex’s mismanagement of known
risk, as described herein, was to force its Introducing Brokers to breach their business
relationships with Plaintiffs.
136. As a direct and proximate result of Defendant Apex’s conduct,
Plaintiffs and the Classes have been injured and sustained damages.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of the Classes pray for
a judgment against Apex as follows:
a. For an order certifying the proposed Classes, appointing Plaintiffs as
Representatives of the proposed Classes, and appointing the law firms representing
Plaintiffs as counsel for the Classes;
b. For compensatory damages, punitive damages, restitution, and/or refund of
all funds acquired by Defendant from Plaintiffs and the proposed members of the
Classes as a result of Defendant’s negligence and unlawful actions described herein,
in an amount to be proven at trial;
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c. Payment of costs and expenses of suit herein incurred;
d. Both pre- and post-judgment interest on any amounts awarded;
e. Payment of reasonable attorneys’ fees and expert fees;
f. Such other and further relief as the Court may deem proper.
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DEMAND FOR JURY TRIAL
Plaintiffs hereby demand trial by jury.
Dated: February 14,2022
Gary .Gr i
an
KANTROWITZ, GOLDHAMER &
GRAIFMAN, P.C.
7 4 7 Chestnut Ridge Road
Chestnut Ridge, New York 10977
Phone: (845) 356-2570
Fax: (845) 356-4335
ggraifinan@kgglaw.com
Peter Safirstein
SAFIRSTEIN LAW LLC
45 N. Broad Street
Suite 100
Ridgewood, NJ 07450
Tel: (917) 952-9458
psafirstein@safirsteinlaw.com
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