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Defendant Apex Clearing Corporation's Motion for Expansion of Page Limitations for Briefing on its Motion to Dismiss Plaintiffs Chavez and Jang's Amended Class Action Complaint — In re January 2021 Short Squeeze Trading Litigation (Dkt. 487, S.D. Fla.)

Summary

Defendant Apex Clearing Corporation's Motion for Expansion of Page Limitations for Briefing on its Motion to Dismiss Plaintiffs Chavez and Jang's Amended Class Action Complaint (Document 487) in In re: January 2021 Short Squeeze Trading Litigation, Case 1:21-md-02989-CMA, U.S. District Court for the Southern District of Florida, entered on the FLSD docket June 15, 2022. The seven-page motion asks to expand the limits in Local Rule 7.1(c)(2) so that Apex may file a memorandum supporting a Rule 12(b)(6) motion to dismiss the Amended Class Action Complaint filed June 15, 2022 (ECF No. 483) not to exceed fifty pages and a reply not to exceed thirty pages, with Plaintiffs' response not to exceed fifty pages. Apex rests on the same circumstances as its June 13, 2022 motion (ECF No. 480), denied as moot. It carries a certificate of service dated June 15, 2022 signed by Jack E. Pace III.

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Date
2022-06-15

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“Defendant Apex Clearing Corporation's Motion for Expansion of Page Limitations for Briefing on its Motion to Dismiss… (Dkt. 487).” Original at archive.org, dated 2022-06-15. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-06-15-covid-era-misc-9988d3d6-1/, SHA-256 9988d3d61808ab5d57f9632ea7689553bec51287b4d74dfccfefc8df0ed416c5.

Full text

Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 1 of 7




                              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.

        DEFENDANT APEX CLEARING CORPORATION’S MOTION FOR EXPANSION
          OF PAGE LIMITATIONS FOR BRIEFING ON ITS MOTION TO DISMISS
        PLAINTIFFS CHAVEZ AND JANG’S AMENDED CLASS ACTION COMPLAINT

          Defendant Apex Clearing Corporation (“Apex”), by and through undersigned counsel,

   respectfully submits this motion requesting an order granting an expansion of the page limits set

   forth in Local Rule 7.1(c)(2) and leave to file, in response to Plaintiffs’ Amended Class Action

   Complaint filed June 15, 2022 (ECF No. 483) (the “Fourth Complaint”): (1) a memorandum of

   law in support of Apex’s Fed. R. Civ. P. 12(b)(6) motion to dismiss the Fourth Complaint, not to

   exceed fifty (50) pages; and (2) a reply brief not to exceed thirty (30) pages. Apex also proposes

   that Plaintiffs be permitted to file a response to Apex’s motion to dismiss not to exceed fifty (50)

   pages in length.

          Apex respectfully submits the present motion based on the same circumstances as Apex’s

   motion filed on June 13, 2022 (ECF No. 480) relating to Plaintiffs’ (transferred) Class Action

   Complaint (the “Third Complaint”) (ECF No. 479 Ex. A), which this Court denied as moot

   following Plaintiffs’ court-ordered filing of their Amended Class Action Complaint (see Order

   dated June 13, 2022 (ECF No. 481) (directing Plaintiffs to file an amended complaint curing

   jurisdictional defects) and Order dated June 15, 2022 (ECF No. 484) (denying Apex’s prior motion

   as moot in light of subsequent Order)).
Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 2 of 7



          Apex proposed to Plaintiffs that the parties be bound by the same page limits applicable to

   the parties’ earlier motion-to-dismiss briefing (see Order dated September 23, 2021 (ECF No.

   417)), even though Plaintiffs’ latest Third Complaint (ECF No. 479 Ex. A)) (and subsequently, the

   Fourth Complaint (ECF No. 483)) reflected a new claim and new allegations not present in

   Plaintiffs’ earlier complaint. But Plaintiffs opposed Apex’s request, necessitating this motion.

          In support of this request, Apex states as follows:

   1. On June 3, 2021, this Court set forth a schedule including special page limits for briefing

      including joint Motions to Dismiss in the Robinhood, Other Broker, and Antitrust Tranches.

      ECF No. 323.

   2. On September 23, 2021, this Court amended the briefing schedule for the Robinhood and Other

      Broker Tranches, expanding the page limits for the joint Motion to Dismiss and Plaintiffs’

      responses to no more than 50 pages each and Defendants’ reply to no more than 30 pages each.

      ECF No. 417.

   3. Defendant Apex filed its Motion to Dismiss Plaintiffs’ Amended Consolidated Class Action

      Complaint as to the Other Broker Tranche on October 15, 2021. ECF No. 422. The Court

      granted Apex’s Motion to Dismiss without prejudice on January 10, 2022. ECF No. 450.

   4. On February 15, 2022, Plaintiffs filed a complaint nearly identical to the complaint previously

      dismissed by this Court, but Plaintiffs filed in the Southern District of New York and added a

      claim and additional allegations.    Specifically, Plaintiffs added a claim for Breach of the

      Implied Covenant of Good Faith and Fair Dealing, added allegations regarding an alleged

      Breach of Fiduciary Duty (new paragraphs) and Apex’s Customer Agreements (new

      subsection), and inserted various bolstering citations. Docket No. 1:22-cv-01233 (S.D.N.Y.

      Feb. 14, 2022) (ECF No. 4).




                                                    2
Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 3 of 7



   5. On June 9, 2022, the Judicial Panel on Multidistrict Litigation ruled that Plaintiffs’ recently-

      filed complaint should be transferred back to this Court. See Transfer Order and Notice of

      Filing of Complaint (ECF Nos. 478 and 479).

   6. On June 9, 2022, this Court directed the parties in briefing any motion to dismiss to adhere to

      the requirements of the Local Rules and more broadly “[to] assum[e] the same positions that

      they occupied prior to the January 10, 2022 Order [ECF No. 450] dismissing the case without

      prejudice [and] . . . to comply with all previously entered Orders on the MDL docket.” Order

      dated June 9, 2022 (ECF No. 478).

   7. On June 12, 2022, Apex counsel contacted Plaintiffs’ counsel to propose that the briefing on

      Apex’s motion to dismiss Plaintiffs’ Third Complaint (ECF No. 479 Ex. A) (prior to Plaintiffs’

      filing of the near-identical Fourth Complaint (ECF No. 483)) be governed by the same page

      limits as applied to the parties’ motion-to-dismiss briefing regarding the Plaintiffs’ nearly

      identical complaint last before this Court, i.e., 50 pages for Defendant’s motion, 50 pages for

      Plaintiffs’ opposition, and 30 pages for Defendant’s reply. Plaintiffs responded that they would

      oppose Apex’s request. See Certificate of Good Faith, infra. Plaintiffs indeed opposed this

      request on June 14, 2022 (see Plaintiffs’ Response in Opposition (ECF No. 482)).

   8. On June 13, 2022, Apex filed its Motion and Proposed Order for Expansion of Page

      Limitations for Briefing on its Motion to Dismiss Plaintiffs Chavez and Jang’s Class Action

      Complaint (ECF No. 480) (the “June 13, 2022 Motion for Expansion of Page Limitations”)

      regarding Plaintiffs’ Third Complaint (ECF No. 479 Ex. A) and requesting the same page

      limitations contained in the present motion.

   9. On June 13, 2022, after Apex filed its Motion, this Court issued an Order directing Plaintiffs

      to file an amended complaint curing jurisdictional defects noted by the Court. ECF No. 481.




                                                     3
Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 4 of 7



   10. On June 15, 2022, Plaintiffs filed their Amended Class Action Complaint (ECF No. 483)

      updating venue and citizenship allegations but retaining all other allegations as appeared in the

      Third Complaint (ECF No. 479 Ex. A).

   11. On June 15, 2022, this Court denied Apex’s June 13, 2022 Motion for Expansion of Page

      Limitations (ECF No. 480) as moot in light of Plaintiffs’ court-ordered filing of their Amended

      Class Action Complaint. See Order dated June 15, 2022 (ECF No. 484).

   12. Grant of Apex’s requested extension is also supported by the nature and scope of Plaintiffs’

      Fourth Complaint (as incorporated from the prior Third Complaint).            Plaintiffs’ Fourth

      Complaint (ECF No. 483) asserts numerous claims to which Apex individually must respond,

      i.e., state common law claims of negligence, breach of fiduciary duty, tortious interference

      with a business relationship, and a new claim for breach of the implied covenant of good faith

      and fair dealing. Plaintiffs’ Fourth Complaint involves a complex factual background, as set

      forth in Plaintiffs’ 40-page complaint (ECF No. 483) containing 136 paragraphs. While this

      Court is well familiar with the factual background of the “meme stock” trading and trading

      restrictions giving rise to Plaintiffs’ claims, the factual background underlying Plaintiffs’

      claims is complex and requires at least a brief discussion of, among other things, the market

      dynamics and mechanisms leading to a so-called “short squeeze” and the resulting impact on

      clearing operations, the regulatory regime governing clearing operations, and the role,

      obligations, and operating procedures of clearing brokers and other broker-dealersboth in

      the ordinary course of business and during periods of market volatility.      Apex’s responsive

      pleading requires additional pages to adequately address and distill these complex topics.

   13. This action also contains an additional layer of complexity in that there is an apparent dispute

      as to whether Texas or New York law governs, given the forum of filing. Thus Apex will be




                                                    4
Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 5 of 7



       required to apply and argue the laws of both jurisdictions (though they are similar in material

       respects) in its motion to dismiss.

   14. Apex’s request is reciprocal and would allow Plaintiffs a corresponding expansion of the Local

       Rules’ page limit for Plaintiffs’ opposition memorandum.

                                             CONCLUSION

          For these reasons, Defendant Apex respectfully requests that this Court enter an order

   setting a limit of fifty (50) pages for the opening memorandum of law and opposition regarding

   the motion to dismiss and a limit of thirty (30) pages for the reply memorandum.

                            CERTIFICATE OF GOOD FAITH CONFERENCE

          Pursuant to Local Rule 7.1(a)(3)(A) and (B), undersigned counsel attempted to confer with

   Plaintiffs’ counsel of record by email on June 12, 2022, noting their intent to request that the Court

   impose the same page limits on the motion to dismiss briefing regarding Plaintiffs’ Third

   Complaint (prior to Plaintiffs’ filing of the near-identical Fourth Complaint) as were in place for

   the earlier briefing regarding Plaintiffs’ earlier, nearly identical complaint.   Plaintiffs’ counsel

   responded they would oppose Apex’s request and subsequently filed their Response in Opposition

   (ECF No. 482) to Apex’s June 13, 2022 Motion for Expansion of Page Limitations (ECF No. 480).

          Dated: June 15, 2022

                                                          /s/ Jack E. Pace III
                                                          Jack E. Pace III
                                                          Bryan D. Gant
                                                          WHITE & CASE LLP
                                                          1221 Avenue of the Americas
                                                          New York, NY 10020
                                                          Tel.: (212) 819-8200
                                                          Fax: (212) 354-8113
                                                          E-mail: jpace@whitecase.com




                                                     5
Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 6 of 7



                                            J. Mark Gidley
                                            WHITE & CASE LLP
                                            701 Thirteenth Street, NW
                                            Washington, DC 20005
                                            Tel.: (202) 626-3600
                                            Fax: (202) 639-9355
                                            Email: mgidley@whitecase.com

                                            Angela Daker
                                            WHITE & CASE LLP
                                            200 South Biscayne Blvd.
                                            Suite 4900
                                            Miami, FL 33131
                                            Tel: (305) 371-2700
                                            Fax: (305) 358-5744
                                            Email: adaker@whitecase.com

                                            Counsel for Defendant Apex Clearing Corp.




                                        6
Case 1:21-md-02989-CMA Document 487 Entered on FLSD Docket 06/15/2022 Page 7 of 7




                                  CERTIFICATE OF SERVICE


                 I HEREBY CERTIFY that, on June 15, 2022, I electronically filed the foregoing

   document with the Clerk of the Court using the CM/ECF filing system. I further certify that this

   motion was served on all counsel of record via transmission of the Notice of Electronic Filing

   generated by the Court’s CF/ECF System.



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




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