Issued as Mandate — Peter Jang, et al v. Apex Clearing Corporation (Appeal Number: 23-10436, Document 712)

Summary

Document 712, entered on the docket of the U.S. District Court for the Southern District of Florida on December 6, 2024 in No. 1:21-md-02989-CMA, transmits the Eleventh Circuit's mandate in appeal No. 23-10436, Peter Jang, et al. v. Apex Clearing Corporation, part of In re: January 2021 Short Squeeze Trading Litigation. It contains the clerk's December 5, 2024 letter issuing the mandate and enclosing the Bill of Costs, the judgment entered October 8, 2024, and the court's per curiam opinion, marked Do Not Publish, before Circuit Judges Rosenbaum, Newsom and Luck. The opinion states that the plaintiffs allege Apex is liable for negligence, breach of fiduciary duty and other claims after the January 2021 trading in stocks such as Gamestop and AMC, and it affirms the district court's order dismissing their complaint. The filing closes with a Counsel Press invoice for the appellee's brief.

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Date: 2024-12-05

Cite this document

“Issued as Mandate — Peter Jang, et al v. Apex Clearing Corporation (Appeal Number: 23-10436, Document 712).” Original at archive.org, dated 2024-12-05. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2024-12-05-peter-jang-et-al-v-apex-clearing-corporation/, SHA-256 fbb58a56f9c665cff6085ddbf8f1a6043f3a4cec8c1bc28e6f564d98490b3afb.

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Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 1 of 39
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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit
Clerk of Court www.ca11.uscourts.gov

December 05, 2024 JG

Clerk - Southern District of Florida Dec 5, 2024
U.S. District Court
400 N MIAMI AVE MIAMI

MIAMI, FL 33128-1810

Appeal Number: 23-10436-DD
Case Style: Peter Jang, et al v. Apex Clearing Corporation
District Court Docket No: 1:21-md-02989-CMA

Enclosed is the Bill of Costs.

A copy of this letter, and the judgment form if noted above, but not a copy of the court's
decision, is also being forwarded to counsel and pro se parties. A copy of the court's decision
was previously forwarded to counsel and pro se parties on the date it was issued.

Clerk's Office Phone Numbers
General Information: 404-335-6100 Attorney Admissions: 404-335-6122
Case Administration: 404-335-6135 Capital Cases: 404-335-6200
CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141

Enclosure(s)
MDT-1 Letter Issuing Mandate
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In the
United States Court of Appeals
For the Eleventh Circuit
____________________

No. 23-10436
____________________

In re: JANUARY 2021 SHORT SQUEEZE TRADING
LITIGATION,
___________________________________________________
SANTIAGO GIL BOHRQUEZ, et al.,
Plaintiﬀs,
PETER JANG,
ERIK CHAVEZ,
Plaintiﬀs-Appellants,
versus
SOFI SECURITIES LLC, et al.,

Defendants,

APEX CLEARING CORPORATION,

ISSUED AS MANDATE 12/5/2024
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2 23-10436

Defendant-Appellee.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-md-02989-CMA
____________________

JUDGMENT
It is hereby ordered, adjudged, and decreed that the opinion issued
on this date in this appeal is entered as the judgment of this Court.
Entered: October 8, 2024
For the Court: DAVID J. SMITH, Clerk of Court

ISSUED AS MANDATE 12/5/2024
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-10436
____________________

Defendants,
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2 Opinion of the Court 23-10436

APEX CLEARING CORPORATION,

Defendant-Appellee.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-md-02989-CMA
____________________

Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
Trading stocks can be risky. In January 2021, thousands of
investors jumped into the field. Many of these individual investors,
like the plaintiffs in this case, decided to take a long position. That
is, they bought stocks to sell later, acting on a bet that the stock
price would rise so that they could pocket the difference between
a lower buy price and a higher sell price. But many other investors
took a short position. Those in the short position had borrowed
stocks, sold those borrowed stocks to other investors, and needed
to buy back the now-sold stocks to pay off their original loans.
They had bet that the stock price would fall and that they would
pocket the difference between the higher sell price and the lower
buy price.
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Meanwhile, retail investors on social media noticed that in-
stitutional investors were taking heavy short positions against
stocks like Gamestop (“GME”), AMC Theaters (“AMC”), and Koss
Corporation (“KOSS”) (together, the “meme stocks” or the “sus-
pended stocks”). Their bets made sense; those companies seemed
to be floundering, and their stock prices seemed sure to fall further.
But on January 13, prices instead shot up as retail investors banded
together to buy shares of the heavily shorted meme stocks en
masse. In the next two weeks, stock prices reached one record high
after another as other retail investors joined in the buying frenzy,
and panicked institutional investors raced to close their short posi-
tions to minimize their already massive losses. The result was ex-
treme market volatility.
The plaintiffs in this case (“Investors” or “Plaintiffs”) and
other retail investors took the long position in this short squeeze.
They bought shares of the meme stocks—and would have contin-
ued buying shares on January 28, 2021. But on that day, at Defend-
ant Apex Clearing Corporation’s direction, their brokers barred
them from buying any additional shares for hours, all while allow-
ing sell orders. The Investors argue that this one-way trading sus-
pension suppressed the appreciation of the prices of the meme
stocks. Put simply, the Investors bet big on the stocks but claim
they didn’t win big because Apex interfered with the short squeeze.
So like many other investors, Plaintiffs came to court to
make up for those losses. Here, they allege that Apex is liable for
negligence, breach of fiduciary duty, breach of the implied
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4 Opinion of the Court 23-10436

covenant of good faith and fair dealing, and tortious interference
under New York law for its trading suspension. Upon considera-
tion of the parties’ briefing, the record, and the relevant law, and
with the benefit of oral argument, we affirm the district court’s or-
der dismissing their complaint.
I. Background
A. Factual Background
1. The Parties
Apex Clearing Corporation is a securities broker-dealer, a ﬁ-
nancial entity that executes securities trades. It interacts with its
customers in one of two ways.
In some cases, Apex acts as a broker-dealer for its direct cus-
tomers. These customers directly purchase and sell securities
through Apex’s trading platform.
But in other cases, Apex acts as a clearing broker for the cus-
tomers it shares with other broker-dealers. These shared custom-
ers open investment accounts with other broker-dealers (“intro-
ducing brokers”). But because the introducing brokers don’t have
the same operational capacity, they contract with Apex to provide
their customers with a trading platform, clearing services, and a
variety of other backroom and administrative functions. Apex
served as a clearing broker for Investors Eric Chavez and Peter Jang,
shared customers who worked with introducing brokers Webull Fi-
nancial LLC (“Webull”) and Ally Invest Securities (“Ally”), respec-
tively.
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Critical to Apex’s role as a clearing broker is its membership
in the National Securities Clearing Corporation (“NSCC”). The
NSCC is the main clearinghouse that clears and settles stock trans-
actions in the United States and is a subsidiary of the Depository
Trust and Clearing Corporation (“DTCC”). Together, the DTCC,
NSCC, and their members guarantee that stock trades are com-
pleted even if a buyer fails to pay for the securities he purchased or
the seller fails to deliver the securities he sold. In performing this
function, the clearinghouses, along with their member clearing
brokers, reallocate to themselves the risks that buyers and sellers
might otherwise bear.
Because it is on the hook for potential defaults in every trans-
action to which investors agree, the NSCC imposes a variety of
risk-management rules on their member clearing brokers. Under
these rules, Apex must post collateral for the trades that Apex has
agreed to process but hasn’t yet cleared. The NSCC calculates this
collateral requirement by considering several factors, including
market volatility. If the market is particularly volatile, the NSCC
might apply a volatility multiplier to its collateral calculation.
Apex must post collateral at the start of each day and again
during the day if the NSCC determines the market is volatile.
These margin requirements protect the clearinghouse, the clearing
brokers, and the investors from defaults.
But these requirements aren’t the only rules by which Apex
must abide. As a registered entity with the Securities and Exchange
Commission (“SEC”), Apex must “‘at all times have and maintain
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net capital’ no less than the greatest of the minimum requirement
applicable to its business.” This Net Capital Rule “protect[s] . . . 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.”
Apex is also registered with the Financial Regulatory Au-
thority (“FINRA”), a non-governmental securities regulator.
FINRA mandates that its members “observe high standards of
commercial honor and just and equitable principles of trade.” It
also requires that its members make an agreement to clear for an
introducing broker on a fully disclosed basis that “specif[ies] the re-
sponsibilities of each party to the agreement including at a mini-
mum . . . (A) Opening and approving accounts[,] (B) Acceptance
of orders[,] (C) Transmission of orders for execution[,] (D) Execu-
tion of Orders[,] (E) Extension of Credit[,] (F) Receipt and delivery
of funds and securities[,] (G) Preparation and transmission of con-
ﬁrmations[,] (H) Maintenance of books and records[,] and (I) Mon-
itoring of accounts.” FINRA Rule 4311(c)(1).
Based on this FINRA requirement, Apex enters into a Cus-
tomer Agreement with introducing brokers and its shared custom-
ers. The Customer Agreement states that Apex has “the right to
refuse to execute securities transactions for the Customer at any
time and for any reason.”
2. The Short Squeeze
In the six days from Thursday, January 21, to Wednesday,
January 27, 2021, GME’s price underwent a nearly nine-fold
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increase, shooting from $43.03 to $380.00. AMC and KOSS’s prices
experienced similar rocket rides over the same period.
Then, the next day, at 9:30 a.m. on January 28, 2021, Apex
received an unconﬁrmed report from the NSCC that showed Apex
would need to make “a substantially increased clearing deposit.” It
hadn’t expected such a high collateral requirement and wasn’t pre-
pared to post those funds. Despite its surprise, Apex didn’t conﬁrm
the collateral requirement with either the NSCC or the DTCC.
Instead, to manage the risk that it couldn’t meet an increased
margin requirement, Apex imposed certain trading restrictions on
the activity causing market volatility—meme stock trading. Two
hours after it received the unconﬁrmed report, around 11:30 a.m.,
Apex barred its direct customers and shared customers from buy-
ing shares of the meme stocks. In the case of its direct customers,
Apex refused to accept any purchase orders. And in the case of its
shared customers, Apex directed introducing brokers to refuse to
accept any purchase orders. Introducing brokers complied with
this direction. Still, Apex permitted its direct customers and shared
customers to continue to sell shares of the meme stocks.
Apex also set margin requirements for the Meme Stocks at
100%.
Apex soon learned that the unconﬁrmed report was incor-
rect. By 11:41 a.m., the DTCC was aware that Apex’s “collateral
exposure was going down.” So the clearinghouse called Apex at
11:47 a.m. to report that the new collateral requirement “was in
fact lower [than projected at 9:30 a.m.] and in line with [Apex’s]
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8 Opinion of the Court 23-10436

expectations and ability to pay[.]” This downward projection con-
tinued throughout the day, and ultimately, Apex didn’t pay any ad-
ditional collateral on January 28.
Despite these developments, Apex maintained its trading
suspension until 2:55 p.m.—a total of three hours and 25 minutes.
B. Procedural History
Retail investors across the country filed lawsuits against
Apex and other broker-dealers for imposing trading restrictions on
the meme stocks during the short squeeze. The Judicial Panel on
Multidistrict Litigation consolidated these cases into a multi-district
litigation (“MDL”) in the Southern District of Florida and separated
the cases into four “tranches.” In re Jan. 2021 Short Squeeze Trading
Litig., No. 1:21-md-02989 (S.D. Fla. Apr. 1, 2021). Plaintiffs are pro-
ceeding on the “Other Broker Tranche” in this MDL. They bring
state-law claims against Apex on behalf of themselves and a puta-
tive class of Apex customers. 1

1 Plaintiffs have proposed two classes. The first class is a Nationwide Investor

Class of all investors in the United States who (1) held meme stock shares or
call options at the end of the trading day on January 27, 2021; (2) sold their
shares or options at a loss between January 28, 2021, and February 23, 2021,
or whose options expired as worthless during that period; and (3) who suffered
damages. The second class is an Apex Broker-Dealer Class of all Apex’s direct
customers and shared customers who (1) held meme stock shares or call op-
tions at the end of the trading day on January 27, 2021, and had to sell their
shares or options at a loss or whose options expired as worthless between Jan-
uary 28, 2021, and February 23, 2021; (2) placed a sale order on meme stock
shares or call options and whose orders were delayed between January 28,
2021, and February 23, 2021; or (3) placed buy orders for meme stock shares
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The district court ordered Apex to produce significant dis-
covery at the outset of this litigation. After reviewing this discov-
ery and upon order by the district court, the Investors filed a master
complaint for the Other Broker Tranche.
In their first complaint, the Investors alleged a single claim
for negligence against Apex. They quickly amended their com-
plaint in response to Apex’s motion to dismiss the first complaint
and added claims alleging breach of fiduciary duty and tortious in-
terference. But the district court dismissed this second complaint
for lack of subject-matter jurisdiction without considering the sub-
stance of the Investors’ claims.
The Investors then filed a third complaint against Apex in
the Southern District of New York. Over the Investors’ objection,
the MDL panel transferred the case from the Southern District of
New York to the MDL in the Southern District of Florida. Imme-
diately after transfer, the district court ordered the Investors to
amend their complaint to plead diversity jurisdiction.
So on June 15, 2022, the Investors filed their fourth com-
plaint, which is now the operative complaint in this litigation. In
this complaint, the Investors allege four claims against Apex: (1)
negligence, (2) breach of fiduciary duty, (3) in the alternative,
breach of the implied covenant of good faith and fair dealing, and
(4) in the alternative, tortious interference. They incorporated into

or call options that Apex initially accepted but ultimately rejected between
January 28, 2021, and February 23, 2021.
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10 Opinion of the Court 23-10436

this complaint the Customer Agreement, the discovery Apex and
other defendants produced in the MDL, an SEC staff report, and
congressional testimony on the January 28, 2021, short squeeze.
Apex moved to dismiss the Investors’ complaint for a third
time. As a threshold matter, Apex argued that the Investors lacked
standing to sue under Article III. It also asserted that federal secu-
rities law preempts the Investors’ claims and that all four claims fail
as a matter of law. The Investors contested each ground for dis-
missal.
The district court granted Apex’s motion in part. In re Jan.
2021 Short Squeeze Trading Litig., No. 21-2989-MDL, 2023 WL
418821, at *19 (S.D. Fla. Jan. 9, 2023). At the outset, the district
court clarified that New York law governs this action because New
York has a strong interest in this litigation. Id. at *9. It then rejected
Apex’s standing and preemption arguments. Id. at *9–13. And fi-
nally, the district court concluded that all four claims fail as a mat-
ter of law. So it dismissed the complaint with prejudice. Id. at *13–
19.
The Investors now appeal the district court’s dismissal of
their complaint.
II. Standard of Review
We review de novo the district court’s dismissal of a com-
plaint for failure to state a claim under Federal Rule of Civil Proce-
dure 12(b)(6). Godelia v. Doe 1, 881 F.3d 1309, 1316 (11th Cir. 2018)
(citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per cu-
riam)). In reviewing this motion, we must “accept the factual
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allegations in the complaint as true and construe them in the light
most favorable to the plaintiﬀ.” Echols v. Lawton, 913 F.3d 1313, 1319
(11th Cir. 2019) (citing Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303
(11th Cir. 2008)). We also review de novo the district court’s inter-
pretation of state law. Godelia, 881 F.3d at 1316 (citing Tampa Bay
Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1177 (11th Cir. 2013)).
III. Discussion
A. The Investors failed to allege a claim for negligence under
New York law.
We start with the Investors’ negligence claim. Because we
are a federal court sitting in diversity and this case arises under New
York law, we apply New York’s substantive law. See Admiral Ins.
Co. v. Feit Mgmt. Co., 321 F.3d 1326, 1328 (11th Cir. 2003). We fol-
low the precedent of the state’s highest court unless none is availa-
ble. Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1133 (11th Cir.
2010). In that case, we follow the decisions of the state’s interme-
diate courts of appeals unless we are convinced that the highest
state court would rule differently. Id. (quoting Bravo v. United
States, 577 F.3d 1324, 1325 (11th Cir. 2009)).
To make their prima facie case under New York law, the In-
vestors must show (1) that Apex owed them a duty of care; (2) that
Apex breached that duty; and (3) that they suffered an injury as a
result of Apex’s breach. See Solomon v. City of New York, 66 N.Y.2d
1026, 1027 (N.Y. 1985).
In the operative complaint, the Investors assert that Apex
was under two duties: (1) to ensure that its trading platforms could
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12 Opinion of the Court 23-10436

“reliably deliver [trading] services” during periods of market vola-
tility, and (2) “to exercise reasonable care in safeguarding [their] in-
vestments” by promptly executing their trade orders. On appeal,
the Investors clarify that Apex owed them a duty not to refuse their
trade orders “for hours for the express purpose of torpedoing the
market price of securities . . . either for its own conflicted financial
benefit . . . or for no business reason.”
The district court determined that the Investors failed to al-
lege a duty recognized under New York law. In re Jan. 2021 Short
Squeeze Trading Litig., 2023 WL 418821, at *17. We agree.
1. The economic-loss doctrine bars the Investors’
negligence claim.
The ﬁrst hurdle the Investors must overcome to establish
that Apex owed them a duty is the economic-loss doctrine. 2 Courts
apply the economic-loss doctrine “when determining whether tort
claims are maintainable alongside breach of contract claims.” IKB
Int’l, S.A. v. Wells Fargo Bank, N.A., 40 N.Y.3d 277, 290 (N.Y. 2023).
Under the economic-loss doctrine, plaintiﬀs can’t maintain tort
claims against a defendant for “purely economic loss” unless they
show that the defendant owed an independent duty to protect

2 As the district court correctly explained, courts applying New York law some-

times refer to the economic-loss doctrine as the economic-loss rule. In re Jan.
2021 Short Squeeze Trading Litig., 2023 WL 418821, at *13 n.12. But in fact, the
economic-loss rule is a “related but distinct” legal principle not at issue in this
case. See Ambac Assurance Corp. v. U.S. Bank Nat’l Ass’n (“Ambac I”), 328 F. Supp.
3d 141, 158–59 (S.D.N.Y. 2018); Travelers Cas. & Sur. Co. v. Dormitory Auth.–
State of N.Y., 734 F. Supp. 2d 368, 378 n.15 (S.D.N.Y. 2010).
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them “against the risk of harm”—a duty that “may arise from a
special relationship.” 532 Madison Ave. Gourmet Foods, Inc. v. Finlan-
dia Ctr., Inc., 750 N.E.2d 1097, 1101, 1103 (N.Y. 2001).
New York imposes this requirement to plead an independent
duty for two reasons: (1) to prevent tort claims that are duplicative
of those that should sound in breach of contract, IKB Int’l, 40
N.Y.3d at 290–91; and (2) “to avoid exposing defendants to unlim-
ited liability to an indeterminate class of persons conceivably in-
jured by any negligence in a defendant’s act,” 532 Madison Ave., 750
N.E.2d at 1101.
Here, the Investors allege a purely economic injury in their
claim for negligence, so they must establish that Apex owed a duty
to protect them against the risk of harm, id. The district court con-
cluded that they failed to do that. In re Jan. 2021 Short Squeeze Trad-
ing Litig., 2023 WL 418821, at *13–15. We think the district court
got the analysis exactly right.
Before we explain why, we ﬁrst address the Investors’ at-
tempt to escape application of the economic-loss doctrine alto-
gether by pointing out that they aren’t bringing contract claims,
except in the alternative, and then for only breach of the covenants
of good faith and fair dealing. But whether the Investors have
brought contract claims makes no diﬀerence to our analysis.
“[T]he economic loss doctrine centers on whether the defendant
owed a duty to protect against the risk of harm to the plaintiﬀ.”
Ambac I, 328 F. Supp. 3d at 159. And to avoid the economic-loss doc-
trine bar, a plaintiﬀ must plead that a “legal duty independent of
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14 Opinion of the Court 23-10436

the contract itself has been violated.” IKB Int’l, 40 N.E. 3d at 290.
As the New York courts have explained, when a plaintiﬀ “is essen-
tially seeking enforcement of the bargain, the action should pro-
ceed under a contract theory.” Id. (citation and quotation marks
omitted). So the mere fact that the Investors pled their breach-of-
implied-covenant claim in the alternative only does not render the
economic-loss doctrine inapplicable.
Now that we’ve established that the economic-loss doctrine
governs, we next explain why it precludes the Investors’ claims
here. Under this doctrine, the Investors must plead that Apex owed
a duty to protect them against economic losses. Ambac I, 328 F.
Supp. 3d at 159. This duty “may arise from a special relationship[.]”
Id. (quoting 532 Madison Ave., 750 N.E.2d at 1101).
The Investors assert that they are not required to plead a spe-
cial relationship to meet this burden. But they cite no authority,
and we know of no cases, in which a New York court determined
that the plaintiﬀ overcame the economic-loss doctrine absent a spe-
cial relationship. So we conclude that the Investors must plead a
special relationship under New York law. They have not met this
requirement.
New York law recognizes the existence of a special relation-
ship under only limited circumstances. The textbook example is
the landowner and tenant relationship; that is, landowners have a
duty to protect their tenants from foreseeable harm “because the
special relationship puts them in the best position to protect against
the risk” of harm on the premises. 532 Madison Ave., 750 N.E.2d at
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23-10436 Opinion of the Court 15

1101 (citing Nallan v. Helmsley–Spear, Inc., 407 N.E.2d 451, 457–58
(N.Y. 1980)). But because there is no special relationship between
the landlord and the general public, the landlord does not owe
these duties to the general public. See 532 Madison Ave., 750 N.E.2d
at 1101–02 (citing Waters v. New York City Hous. Auth., 505 N.E.2d
922, 924 (N.Y. 1987)).
A special relationship speciﬁcally occurs when “one party
owes the other a ﬁduciary duty.” Valentini v. Citigroup, Inc., 837 F.
Supp. 2d 304, 329 (S.D.N.Y. 2011) (citing Stewart v. Jackson & Nash,
976 F.2d 86, 90 (2d Cir. 1992)). A “ﬁduciary relationship,” as New
York law deﬁnes it, “exists between two persons when one of them
is under a duty to act for or to give advice for the beneﬁt of another
upon matters within the scope of the relation.” EBC I, Inc. v. Gold-
man, Sachs & Co., 832 N.E.2d 26, 31 (N.Y. 2005) (citations omitted).
This relationship, “necessarily fact-speciﬁc, is grounded in a higher
level of trust than normally present in the marketplace between
those involved in arm’s length business transactions.” Id. (citations
omitted). So the Investors could establish a “special relationship”
by demonstrating Apex owed them a ﬁduciary duty.
The Investors cannot meet this standard. Under New York
law, clearing brokers like Apex generally don’t owe individual in-
vestors any ﬁduciary duties. See Greenﬁeld v. Tassinari, 779 N.Y.S.2d
531, 532 (N.Y. App. Div. 2004) (citing McDaniel v. Bear Stearns Inc.,
196 F. Supp. 2d. 343 (S.D.N.Y. 2002); Rozsa v. May Davis Grp., Inc.
(“Rozsa I”), 152 F. Supp. 2d 526 (S.D.N.Y. 2001); Schwarz v. Bear
Stearns Companies, Inc., 698 N.Y.S.2d 855 (N.Y. App. Div. 1999)).
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16 Opinion of the Court 23-10436

New York courts have aﬃrmed this principle repeatedly for dec-
ades, Levitt v. J.P. Morgan Sec., Inc., 710 F.3d 454, 465–66 (2d Cir. 2013)
(collecting cases); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kel-
lo Corp., 305 F.3d 1293, 1296 n.12 (11th Cir. 2002) (citing Connolly
v. Havens, 763 F. Supp. 6, 10 (S.D.N.Y. 1991)). 3
The existence of a contract between the Investors and
Apex—the Customer Agreement—neither undermines this princi-
ple nor creates a ﬁduciary relationship between the parties. Under
the Customer Agreement, the Investors are customers of both
their introducing brokers and Apex. New York caselaw repeatedly
addresses situations in which the plaintiﬀ investors are customers
of introducing brokers. See, e.g., Rozsa v. May Davis Grp., Inc. (“Rozsa
II”), 187 F. Supp. 2d 123, 131–32 (S.D.N.Y. 2002) (collecting cases),
aﬀ’d sub nom. Rozsa v. SG Cowen Sec. Corp., 165 F. App’x 892 (2d Cir.
2006). 4 And New York law has not held that the mere existence of

3 The Investors contend that, under New York law, the stockbroker-investor

relationship is a fiduciary relationship. True, New York sometimes recognizes
this relationship as “fiduciary in nature.” Conway v. Icahn & Co., 16 F.3d 504,
510 (2d Cir. 1994) (citing 11 N.Y. Jur. 2d Brokers § 45 (1981); People v. Mercer
Hicks Corp., 155 N.Y.S.2d 740, 744 (N.Y. Sup. Ct. 1956)). But the scope of a
fiduciary relationship—and the duties owed because of that relationship—“are
determined by the terms of the agreement between the parties.” Restatement
(Second) of Agency § 376.
4 In addition, the Investors attempt to establish a duty with reference to Rioseco

v. Gamco Asset Management, Inc., No. 15862/10, 2011 WL 4552544 (N.Y. Sup.
Ct. Sep. 23, 2011). In Rioseco, the state trial court considered a suit by investors
against their broker for negligence and for breach of fiduciary duty. Rioseco,
2011 WL 4552544. In a footnote, that court explained that cases like Rozsa
involving clearing brokers were inapplicable because the broker in Rioseco
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23-10436 Opinion of the Court 17

a contractual relationship creates a ﬁduciary duty. Cf. Pross v. Katz,
784 F.2d 455, 458 (2d Cir. 1986) (“Fiduciary duties are based on no-
tions of contract, but they are judicial creations rather than the
product of private bargaining.”).
True, New York law does suggest clearing brokers have “a
ﬁduciary duty to investors in certain extenuating circumstances.”
Rozsa I, 152 F. Supp. 2d at 531 (citing Goldman v. McMahan, Brafman,
Morgan & Co., No. 85 Civ. 2236, 1987 WL 12820, at *22 (S.D.N.Y.
June 18, 1987)). And New York courts have identiﬁed at least three
relevant situations qualifying as “extenuating circumstances” in this
context. First, when the clearing broker “asserts control over the
introducing broker’s business, or becomes actively and directly in-
volved in an introductory broker’s actions.” Glob. Enter. Grp. Hold-
ing, S.A. v. Ottimo, No. 07-CV-4904, 2010 WL 11629556, at *5
(E.D.N.Y. June 8, 2010) (citing Stern v. Legent Clearing LLC, No. 09-
CV-0794, 2009 WL 2244616, at *3 (N.D. Ill. July 28, 2009)). Second,
when the clearing broker was actively involved in a fraud scheme.
Id. (citing Goldman, 1987 WL 12820, at *22). And third, “where
there were allegations that a clearing broker undertook more than
mere clearing duties, and became aware of an investment broker’s
fraud[.]” Id. (emphasis in original) (citing A.I.A. Holdings, S.A. v. Leh-
man Bros., Inc., No. 97-CV-4978, 2002 WL 88226, at *4 (S.D.N.Y. Jan.
23, 2002)).

wasn’t a clearing broker. Id. n.22. The district court therefore correctly deter-
mined that Rioseco is inapplicable. See In re Jan. 2021 Short Squeeze Trading Litig.,
2023 WL 418821, at *16.
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18 Opinion of the Court 23-10436

But the Investors have not demonstrated any of these situa-
tions here.
As to the ﬁrst possibility, the Investors have failed to show
that Apex took control over or otherwise became “actively and di-
rectly involved” in their introducing brokers’ businesses. Id. The
Investors contend that Apex “improperly directed” their introduc-
ing brokers to refuse to accept purchase orders of the suspended
stocks “for its own ﬁnancial beneﬁt and to the detriment of its cus-
tomers.”
But this behavior does not amount to “active[] and direct[]
involve[ment]” in the introducing brokers’ operation. Clearing
brokers are responsible for “receiving, maintaining[,] and delivering
customers’ securities and funds.” McDaniel, 196 F. Supp. 2d at 347.
Embedded within that responsibility is the right, which all brokers
share, to refuse to accept a customer’s orders “so long as [the bro-
ker] makes clear at the time the orders are given that he refuses to
perform them.” Courtland v. Walston & Co., 340 F. Supp. 1076, 1080
(S.D.N.Y. 1972) (citing Busch v. L. F. Rothschild & Co., 259 N.Y.S.2d
239, 240–41 (N.Y. App. Div. 1965)). New York courts haven’t recog-
nized many limits to the broker’s right to refuse to accept trades;
the breadth of this right is a foundational principle of New York
law, cf. Le Marchant v. Moore, 44 N.E. 770, 772 (N.Y. 1896). The facts
the Investors have alleged show only that Apex exercised this right.
As to the second possibility, the Investors also do not plead
facts demonstrating that Apex acted as part of a fraudulent scheme.
Instead, they contend only that involvement in a fraud scheme is
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not a requirement to showing extenuating circumstances in this
context.
But in any event, there are no allegations of a fraudulent
scheme here. And each of the cases the Investors cite for support
of their position involves clearing brokers alleged to have engaged
in broader fraudulent schemes. See McDaniel, 196 F. Supp. 2d 343,
355-356 (concluding that restricting trades was one of “nine ‘key
factual elements’ that constituted [the clearing broker’s] ‘active par-
ticipation, substantial assistance and aiding abetting’” in a fraudu-
lent scheme even while the restrictions alone were insufficient to
show such a scheme); Berwecky v. Bear Stearns & Co., 197 F.R.D. 65,
66-69 (S.D.N.Y. 2000) (granting class certification in an action by
investors against a clearing broker for a fraudulent scheme involv-
ing several actions, including restricting trades); In re Blech Sec.
Litig., 961 F. Supp. 569, 573, 576 (S.D.N.Y. 1997) (denying a motion
to dismiss a complaint alleging that a clearing broker engaged in
securities fraud under federal law and common-law fraud); Canni-
zaro v. Bache, Halsey, Stuart, Shields, Inc., 81 F.R.D. 719, 721-22
(S.D.N.Y. 1979) (denying in part a clearing broker’s motion for
summary judgment on claims they had violated federal securities
laws when investors met the requirements for alleging liability un-
der an aiding and abetting theory).
And third, because the Investors do not allege fraud, they
cannot demonstrate that Apex “undertook more than mere clear-
ing duties, and became aware of an investment broker’s fraud[.]”
Glob. Enter. Grp. Holding, S.A., 2010 WL 11629556, at *5 (emphasis
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20 Opinion of the Court 23-10436

in original) (citing A.I.A. Holdings, S.A., 2002 WL 88226, at *4). So
the Investors have not established the third scenario either. Apex’s
action here—refusing to accept purchase orders for the suspended
stocks—simply doesn’t rise to the level of involvement that the In-
vestors need to establish “extenuating circumstances.” Cf. Cromer
Fin. Ltd. v. Berger, 137 F. Supp. 2d 452, 470 (S.D.N.Y. 2001) (“A clear-
ing broker does not provide ‘substantial assistance’ to or ‘partici-
pate’ in a fraud when it merely clears trades.”).
In all, the Investors have not demonstrated that Apex as
their clearing broker owed them an additional duty to avoid the
economic loss they experienced. The economic-loss doctrine there-
fore bars their claim for negligence.
2. Even without the economic-loss doctrine, the
Investors have failed to allege that Apex owed
them a duty of care.
The Investors also assert that Apex owed them a duty of or-
dinary care under traditional agency law and under the industry
rules they claim the Customer Agreement incorporates. We ad-
dress each possible basis in turn and conclude that, even if the eco-
nomic-loss doctrine didn’t bar the Investors’ claim for negligence,
they still failed to allege a duty that New York law recognizes.
We begin, as the Investors do, with traditional agency law.
Under New York law, “[t]he relationship between a stockbroker
and its customer is that of principal and agent.” Conway, 16 F.3d at
510 (citing 11 N.Y. Jur. 2d Brokers § 45 (1981); Mercer Hicks Corp.,
155 N.Y.S.2d at 744). Like other principals, brokers owe their
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customers “a duty of reasonable care” in the “performance of
[their] obligations to customers,” like the Investors, who have non-
discretionary accounts. de Kwiatkowski v. Bear, Stearns & Co., 306
F.3d 1293, 1305 (2d Cir. 2002) (collecting cases). Based on these
broad statements by the Second Circuit, the Investors assert that
Apex owed them a duty of ordinary care.
The Investors have misread Conway and de Kwiatkowski.
Conway concerned a very narrow duty—the duty to notify a cus-
tomer and secure that customer’s consent before executing a sell-
out to meet a margin call. Conway, 16 F.3d at 507. But since Con-
way, the Second Circuit has clarified that Conway means only that
brokers owe a duty “‘to use reasonable efforts to give [their cus-
tomers] information relevant to the affairs that [have] been en-
trusted to them.’” United States v. Szur, 289 F.3d 200, 211 (2d Cir.
2002) (citing Indep. Ord. of Foresters v. Donald, Lufkin & Jenrette, Inc.,
157 F.3d 933, 941 (2d Cir. 1998); Conway, 16 F.3d at 510; 37 Am. Jur.
2d § 207 (2001)). This, of course, doesn’t help the Investors’ case.
The Second Circuit’s decision in de Kwiatkowski also con-
firms that New York imposes only limited duties on brokers.
There, the Second Circuit considered an appeal by Bear, Stearns
from a jury verdict finding it negligent for not advising a nondiscre-
tionary customer to liquidate his position. See de Kwiatkowski, 306
F.3d at 1296–301. The district court had instructed the jury that
Bear, Stearns owed the plaintiff “a duty to use the same degree of
skill and care that other brokers would reasonably use under the
same circumstances.” Id. at 1301 (internal quotation marks
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22 Opinion of the Court 23-10436

omitted) (quoting trial transcript). The Second Circuit reversed,
holding, in relevant part, that the broker’s duty is not so expansive.
See id. at 1305–14. The court explained that brokers owe only “de-
fined duties,” not “an open-ended duty of reasonable care.” Id. at
1306. So the Investors need a “defined duty” to support their claim
that Apex owed them a duty here. Id.
For two reasons, traditional agency law won’t get the Inves-
tors to a duty New York law recognizes. First, clearing brokers
don’t owe investors any duties. Rozsa II, 187 F. Supp. 2d at 131
(explaining that courts applying New York law “have determined
that clearing brokers do not owe duties to plaintiffs who are cus-
tomers of their introducing brokers”). The Investors advance a
narrower reading of New York law than we recognize, asserting
that clearing brokers don’t owe a duty only when they act as “ge-
neric clearing agent[s].” But even if we were to adopt this under-
standing, the Investors’ factual allegations establish that Apex acted
only as a “generic clearing agent” in refusing to accept their trade
orders on January 28. Courtland, 340 F. Supp. at 1080; Busch, 259
N.Y.S.2d at 240–41.
Second, brokers aren’t under a duty to accept new orders.
Although, under New York law, a broker owes certain duties to its
customers who, like the Investors, have nondiscretionary ac-
counts, those duties begin and end with each transaction. de Kwiat-
kowski, 306 F.3d at 1302; see also Schenck v. Bear, Stearns & Co., 484
F. Supp. 937, 947 (S.D.N.Y. 1979) (“The scope of affairs entrusted
to a broker is generally limited to the completion of a
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23-10436 Opinion of the Court 23

transaction.”). They do not extend to the decision to enter into a
transaction.
The Investors agree that a broker’s duties are limited to
transactions, but they urge us to adopt a more “expansive view as
to the definition of ‘transaction’” based on the district court’s ruling
on the claims that another tranche in this MDL raised. See In re Jan.
2021 Short Squeeze Trading Litig., 620 F. Supp. 3d 1231, 1249 (S.D.
Fla. 2022). But the district court interpreted the term “transaction”
broadly within the context of the Securities Exchange Act, id., and
we shouldn’t impose the contours of a federal statute onto New
York tort law.
We instead interpret “transaction” the same way that New
York courts do. A transaction begins when a broker accepts a cus-
tomer’s order and ends upon execution of that order. See Busch,
259 N.Y.S.2d at 240–41. The broker therefore has a duty to execute
the order—but only if he accepted that order. See id. Applying
these principles to the Investors’ claims, we are bound to conclude
that Apex didn’t owe the Investors a duty because Apex didn’t ac-
cept any purchase orders during the trading suspension. In short,
traditional agency law dictates that the Investors’ claim for negli-
gence must fail.
The Investors also contend that Apex owed them a duty un-
der industry rules they claim the Customer Agreement incorpo-
rates. Under the Customer Agreement, Apex has “the right to re-
fuse to execute securities transactions for the Customer at any time
and for any reason.” Despite the absence of any limitation in that
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24 Opinion of the Court 23-10436

provision of the contract, the Investors assert that we should reject
an “unconstrained reading” of Apex’s right to refuse because the
Customer Agreement makes all transactions “subject to the consti-
tution, rules, regulations, customs and usages of the exchange or
market and its clearing house.” Because Apex is a member of
FINRA, the NYSE, and the NASDAQ, the Investors argue that
Apex must “observe high standards of commercial honor and just
and equitable principles of trade when dealing with [its] custom-
ers.” They direct our attention to one rule in particular—FINRA
Regulatory Notice 21-12, a notice issued after the meme stock
frenzy of January 2021, which states that “the foundation of the se-
curities industry is fair dealing with customers . . . even during
times of market stress.” And they claim that New York holds bro-
kers liable for failure to abide by these industry rules.
But FINRA and other industry regulations don’t impose an
independent duty on brokers because they aren’t private causes of
action. Fox v. Lifemark Sec. Corp., 84 F. Supp. 3d 239, 245 (W.D.N.Y.
2015) (citing Richman v. Goldman Sachs Group, Inc., 868 F. Supp. 2d
261, 274 (S.D.N.Y. 2012)) (concluding that “plaintiff[s] cannot re-
cover for negligence based on the alleged violation of FINRA
[rules].”)
In short, New York law clearly establishes that clearing bro-
kers generally don’t owe investors any duties. Neither traditional
agency law nor industry rules support the Investors’ claims.
B. The Investors failed to allege a fiduciary duty to state a claim
for breach of fiduciary duty.
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The Investors next appeal the district court’s dismissal of
their claim for breach of ﬁduciary duty. We believe the district
court correctly concluded the Investors have failed to state this
claim. In re Jan. 2021 Short Squeeze Trading Litig., 2023 WL 418821,
at *17.
To recover for breach of ﬁduciary duty, the Investors needed
to plead “(1) the existence of a ﬁduciary relationship, (2) miscon-
duct by the defendant, and (3) damages directly caused by the de-
fendant’s misconduct.” Baldeo v. Majeed, 55 N.Y.S.3d 340, 344 (N.Y.
App. Div. 2017) (citing Deblinger v. Sani–Pine Prods. Co., Inc., 967
N.Y.S.2d 394, 396 (N.Y. App. Div. 2013); Rut v. Young Adult Inst., Inc.,
901 N.Y.S.2d 715, 717 (N.Y. App. Div. 2010)). Under New York law,
a ﬁduciary relationship exists between two parties when one party
“is under a duty to act for . . . the beneﬁt of another upon matters
within the scope of the relation.” EBC I, Inc., 832 N.E.2d at 31 (in-
ternal quotation marks omitted) (quoting Restatement (Second) of
Torts § 874 cmt. a). So to state a claim for breach of ﬁduciary duty,
the Investors must show that Apex owed them a ﬁduciary duty.
As we explained in our discussion of the economic-loss doc-
trine, Plaintiﬀs haven’t alleged that Apex owed them a ﬁduciary
duty. Clearing brokers generally don’t owe a ﬁduciary duty to in-
vestors. See Greenﬁeld, 779 NY.S.2d at 532. And Plaintiﬀs haven’t
established any extenuating circumstances to overcome this gen-
eral rule. See Glob. Enter. Grp. Holding, S.A., No. 07-CV-4904, 2010
WL 11629556, at *5. They therefore cannot succeed on a claim for
breach of ﬁduciary duty.
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26 Opinion of the Court 23-10436

C. New York law precludes the Investors’ claim that Apex
breached the implied covenant of good faith and fair dealing.
Third, we have the Investors’ alternative claim that Apex
breached the covenant of good faith and fair dealing by “restricting
one-sided trading (purchases) on January 28, 2021” for the purpose
“of causing the trading price of the suspended stocks to go down.”
The district court dismissed this claim, explaining that the Investors
may not use this implied covenant to undercut the express terms
of the Customer Agreement. In re Jan. 2021 Short Squeeze Trading
Litig., 2023 WL 418821, at *18. We agree with this conclusion.
All contracts governed by New York law, including the Cus-
tomer Agreement between the parties here, contain an implied
covenant of good faith and fair dealing in the course of perfor-
mance. Singh v. City of New York, 217 N.E.3d 1, 5 (N.Y. 2023) (citing
511 W. 232nd Owners Corp. v. Jennifer Realty Co., 773 N.E.2d 496 (N.Y.
2002); Kirke La Shelle Co. v. Paul Armstrong Co., 188 N.E. 163 (N.Y.
1933)). This covenant is “‘a pledge that neither party shall do any-
thing which will have the eﬀect of destroying or injuring the right
of the other party to receive the fruits of the contract.’” Id. (quot-
ing Jennifer Realty Co., 773 N.E.2d at 500). But this covenant extends
to the parties’ reasonable expectations only. Bank of China v. Chan,
937 F.2d 780, 789 (2d Cir. 1991) (citing Havel v. Kelsey–Hayes Co., 445
N.Y.S.2d 333, 336 (N.Y. App. Div. 1981)). It cannot be used “‘to re-
make the contract agreed to by the parties,’” Cordero v. Transamerica
Annuity Serv. Corp., 211 N.E.3d 663, 670 (N.Y. 2023) (quoting Rowe
v. Great Atl. & Pac. Tea Co., 385 N.E.2d 566, 570 (N.Y. 1978)), or “nul-
lify express contractual terms,” Bersin Props., LLC v. Nomura Credit
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& Cap., Inc., 183 N.Y.S.3d 376, 378 (N.Y. App. Div. 2023) (citing Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. Xerox Corp., 807 N.Y.S.2d 344
(N.Y. App. Div. 2006)).
Here, the Customer Agreement gave Apex the “right to re-
fuse to execute securities transactions for [the Investors] at any time
and for any reason.” Still, the Investors contend that Apex could
exercise this right to refuse orders only “on a limited basis” because
they reasonably expected that Apex couldn’t act in a way that might
depress stock prices and undermine their “ability to reap the fruits
of the contract.” And according to the Investors, we must read the
implied covenant to cabin Apex’s discretion because New York tort
law and FINRA rules prevent Apex “from contracting itself out of
liability.”
This interpretation of the implied duty of good faith and fair
dealing directly contradicts the plain language of the Customer
Agreement. The Customer Agreement doesn’t impose any re-
strictions on Apex’s right to refuse to accept trading orders; in fact,
it clearly states that Apex can exercise this right “at any time and
for any reason.” New York law forbids us from implying a duty
that is “inconsistent with other terms of the contractual relation-
ship.” Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 91 (N.Y.
1983).
New York courts have considered and rejected similar claims
to those of the Investors for decades. For instance, in Murphy, the
New York Court of Appeals considered whether the implied cove-
nant of good faith and fair dealing limits an employer’s “unfettered
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28 Opinion of the Court 23-10436

right” to terminate an employment at will at any time. Id. The
court ultimately determined that the implied covenant doesn’t re-
strict the employer’s right of termination because “it would be in-
congruous to say that” the employer “impliedly agreed to a provi-
sion which would be destructive of his right” to terminate employ-
ees at any time. Id.
The New York Court of Appeals reaﬃrmed this principle
just last year in response to a question of law that this Court certi-
ﬁed. Cordero, 211 N.E.3d at 665. We asked the New York court to
clarify whether the implied covenant of good faith and fair dealing
imposes a duty on defendants to enforce the anti-assignment pro-
visions in structured settlement agreements and refrain from tak-
ing certain actions. Id. The New York Court of Appeals deter-
mined that the implied covenant can’t create a new ﬁduciary duty
that is stricter than the express terms of the contract. Id. at 671.
The same principle applies here. The Customer Agreement
gave Apex an “unfettered right” to refuse trading orders “at any
time and for any reason.” The duty that the Investors argue we
must imply would impose an additional and unwritten obligation
that would prevent Apex from exercising its express right under the
contract. Because the implied covenant would be inconsistent with
the express terms of the contract, we must reject the Investors’
claim.
D. The Investors failed to state a claim for tortious interference.
Lastly, the Investors contend that they have adequately pled
that Apex tortiously interfered with their business relationship with
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their introducing brokers. To state a claim for tortious interference
under New York law, the Investors need to show (1) that they had
a business relationship with the introducing brokers; (2) that Apex
knew about and intentionally interfered with that relationship; (3)
that Apex’s “actions were motivated solely by malice or otherwise
constituted illegal means”; and (4) that Apex’s interference injured
the business relationship. 684 E. 222nd Realty Co., LLC v. Sheehan,
128 N.Y.S.3d 273, 275 (N.Y. App. Div. 2020) (citing Tri–Star Light.
Corp. v. Goldstein, 58 N.Y.S.3d 448, 453 (N.Y. App. Div. 2017); Ama-
ranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 47, 888 N.Y.S.2d
489, 494 (N.Y. App. Div. 2009)). We agree with the district court
that the Investors failed to establish that Apex acted solely out of
malice or otherwise acted unlawfully. In re Jan. 2021 Short Squeeze
Trading Litig., 2023 WL 418821, at *19.
The Investors raise two arguments on appeal. First, they ar-
gue that Apex acted unlawfully because it committed two separate
and independent torts—negligence and breach of ﬁduciary duty.
This argument isn’t convincing; as we’ve explained, the Investors
have failed to state a claim for either tort. So neither tort helps the
Investors establish the third element of their claim for tortious in-
terference.
But even if the Investors had stated a claim for negligence or
for breach of ﬁduciary duty, New York does not appear to recog-
nize either tort as constituting “illegal means” for purposes of a
claim for tortious interference. See Carvel Corp. v. Noonan, 818
N.E.2d 1100, 1104 (N.Y. 2004). New York law appears to recognize
Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 33 of 39
USCA11 Case: 23-10436 Document: 56-1 Date Filed: 10/08/2024 Page: 30 of 31

30 Opinion of the Court 23-10436

only the following as “illegal means” in this context: “physical vio-
lence, fraud or misrepresentation, civil suits and criminal prosecu-
tions, and some degrees of economic pressure.” Id. (quoting
Guard–Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445,
449 (N.Y. 1980)).
Second, the Investors contend that Apex employed illegal
means because the trading restriction was a form of economic
pressure. We are not persuaded. For economic pressure to be
wrongful under New York law, it must be “extreme and unfair.”
Carvel Corp., 818 N.E.2d at 1105. Conduct that “the express words
of the contracts” permit can’t constitute wrongful economic pres-
sure. Id. So because the Customer Agreement expressly allowed
Apex to refuse trading orders “at any time and for any reason,”
Apex didn’t engage in wrongful conduct by refusing the Investors’
purchase orders.
In sum, the Investors didn’t allege that Apex acted out of
malice and failed to adequately allege that Apex committed some
other unlawful act. The district court therefore correctly dismissed
their claim for tortious interference.
IV. Conclusion
The Investors took a gamble on the meme stocks in January
2021. That gamble didn’t pay off in precisely the ways they’d
hoped. Although they may disagree with how Apex handled the
volatility of the market on January 28, they have failed to show that
Apex is liable for its actions under New York law. So for the
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23-10436 Opinion of the Court 31

foregoing reasons, we affirm the district court’s order dismissing
Plaintiffs’ complaint for failure to state a claim under Rule 12(b)(6).
AFFIRMED.
Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 35 of 39
USCA11 Case: 23-10436 Document: 56-2 Date Filed: 10/08/2024 Page: 1 of 2

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit
Clerk of Court www.ca11.uscourts.gov

October 08, 2024

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 23-10436-DD
Case Style: Peter Jang, et al v. Apex Clearing Corporation
District Court Docket No: 1:21-md-02989-CMA

Opinion Issued
Enclosed is a copy of the Court's decision issued today in this case. Judgment has been entered
today pursuant to FRAP 36. The Court's mandate will issue at a later date pursuant to FRAP
41(b).

Petitions for Rehearing
The time for filing a petition for panel rehearing is governed by 11th Cir. R. 40-3, and the time
for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise
provided by FRAP 25(a) for inmate filings, a petition for rehearing is timely only if received in
the clerk's office within the time specified in the rules. A petition for rehearing must include
a Certificate of Interested Persons and a copy of the opinion sought to be reheard. See 11th
Cir. R. 35-5(k) and 40-1.

Costs
Costs are taxed against Appellant(s) / Petitioner(s).

Bill of Costs
If costs are taxed, please use the most recent version of the Bill of Costs form available on the
Court's website at www.ca11.uscourts.gov. For more information regarding costs, see FRAP 39
and 11th Cir. R. 39-1.

Attorney's Fees
The time to file and required documentation for an application for attorney's fees and any
objection to the application are governed by 11th Cir. R. 39-2 and 39-3.

Appointed Counsel
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming
compensation via the eVoucher system no later than 45 days after issuance of the mandate or
the filing of a petition for writ of certiorari. Please contact the CJA Team at (404) 335-6167 or
Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 36 of 39
USCA11 Case: 23-10436 Document: 56-2 Date Filed: 10/08/2024 Page: 2 of 2

cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher
system.

OPIN-1 Ntc of Issuance of Opinion
Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 37 of 39
USCA11UNITED
Case: STATES
23-10436COURT OF APPEALS
Document: 63-2 FOR DateTHE ELEVENTH
Filed: 12/05/2024CIRCUIT
Page: 1 of 3
Bill of Costs

Court of Appeals Docket No. 23-10436

PETER JANG, ERIK CHAVEZ
________________________________________________ APEX CLEARING CORPORATION
vs. _______________________________________________

A Bill of Costs should only be filed when the Clerk’s Office has advised a party that the party is entitled to costs. FRAP 39 and 11th Cir. R. 39-1
govern costs taxable in this court and the time for filing the Bill of Costs. A motion for leave to file out of time is required for a Bill of Costs not
timely received.

INSTRUCTIONS
The appellate docketing fee is set in the fee schedule issued pursuant to 28 U.S.C. § 1913. However, the $5 fee for filing a notice of appeal is
recoverable as a cost in the district court. In the grid below, multiply the number of original pages of each document by the total number of
documents reproduced to calculate the total number of copies reproduced. Multiply this number by the cost per copy ( $.15 per copy for “In-
House”, up to $.25 per copy for commercial reproduction, supported by receipts) showing the product as costs requested.

Repro. Method No. of Total No. Total CT. USE ONLY
(Mark One) Original Documents No. of COSTS COSTS
In-House Comm* Pages Reproduced Copies REQUESTED ALLOWED

Appellate Docketing Fee — — — — —

Appellant’s Brief
Appendix
Appellee’s Brief X 68 7 476 119 $119.00
Reply Brief
Appellee's Supplemental Appendix X 234 3 702 175.5 $175.50

*Note: If reproduction was done commercially, TOTAL $ 294.5 $ $294.50
receipt(s) must be attached.
REQUESTED ALLOWED

I hereby swear or affirm that the costs claimed were actually and necessarily incurred in this appeal and that I have served this Bill of Costs on
counsel/parties of record.

Signature: Date Signed: October 22, 2024
Attorney Name: Jack E. Pace III Attorney for: Apex Clearing Corporation
(Type or print your name) (Type or print name of client)

E-mail: jpace@whitecase.com Phone: (212) 819-8520

Street Address/City/State/Zip: White & Case LLP
1221 Avenue of the Americas, New York, NY 10020-1095
FOR COURT USE ONLY

Costs are hereby taxed in the amount of $ $294.50 against Appellants

and are payable directly to Appellees

David J. Smith, Clerk of Court

Issued on: By: /S/ Tresa A. Raines DATE: 10/23/2024
Deputy Clerk

BOC Rev.: 6/17
Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 38 of 39
USCA11 Case: 23-10436 Document: 63-2 Date Filed: 12/05/2024 Page: 2 of 3
Invoice
Invoice Number: 0009153784
Counsel Press Inc.
Date: 10/18/2023
PO Box 65019
Baltimore, Maryland 21264-5019 Fed. Tax ID: 47-3380949
Phone: (800) 427-7325 Terms: ON RECEIPT
Sold To

White & Case LLP
1221 Avenue of Americas
New York, NY 10020 USA

Attention: Kim King, Esq. File No.: 322093
Court: USCOA - 11TH
Case Name: Peter Jang, et al. v Apex Clearing Corp.
Amount .
APPELLEE'S APPENDIX
234.00 Page(s) @ $4.15 $971.10
21.00 Exhibit Tabs - (3 x 7) @ $2.45 $51.45
3.00 Volumes Spiral Bound @ $5.25 $15.75
1.00 Filing of Documents @ $80.00 $80.00
1.00 Shipping & Handling @ $368.00 $368.00

ANSWERING APPELLEE'S BRIEF
1.00 Preparation of Brief @ $750.00 $750.00
68.00 Page(s) @ $0.00
3.00 Volumes Spiral Bound @ $5.25 $15.75

Subtotal $2,252.05
This Invoice is Due Upon Receipt. Please Show Invoice
00-VW Sales Tax $199.87
Number on Check When Submitting Payment.
10/20/2023 09:59 AM
$0.00
Payment/Credit $0.00
Page 1 of 1 Balance $2,451.92
NEW YORK, NY - WASHINGTON, DC - PHILADELPHIA, PA - LOS ANGELES, CA - CHICAGO, IL
BUFFALO, NY - RICHMOND, VA - BOSTON, MA - ISELIN, NJ - SYRACUSE, NY - ROCHESTER, NY - DELHI, NY
Case 1:21-md-02989-CMA Document 712 Entered on FLSD Docket 12/06/2024 Page 39 of 39
USCA11 Case: 23-10436 Document: 63-2 Date Filed: 12/05/2024 Page: 3 of 3
Invoice
Invoice Number: 0009149640
Counsel Press Inc.
Date: 06/28/2023
PO Box 65019
Baltimore, Maryland 21264-5019 Fed. Tax ID: 47-3380949
Phone: (800) 427-7325 Terms: ON RECEIPT
Sold To

White & Case LLP
1221 Avenue of Americas
New York, NY 10020 USA

Attention: Kim King, Esq. File No.: 320956
Court: USCOA - 11TH
Case Name: Peter Jang v. Apex Clearing Corporation
Amount .
APPELLEE'S BRIEF
- (39 copies)
1.00 Preparation of Brief @ $1,765.00 $1,765.00
Page(s)
39.00 Volumes Spiral Bound @ $5.25 $204.75
1.00 Filing of Documents @ $80.00 $80.00
1.00 Shipping & Handling @ $252.00 $252.00

Subtotal $2,301.75
This Invoice is Due Upon Receipt. Please Show Invoice
00-VW Sales Tax $204.28
Number on Check When Submitting Payment.
07/13/2023 13:48 PM
$0.00
Payment/Credit $0.00
Page 1 of 1 Balance $2,506.03
NEW YORK, NY - WASHINGTON, DC - PHILADELPHIA, PA - LOS ANGELES, CA - CHICAGO, IL
BUFFALO, NY - RICHMOND, VA - BOSTON,MA - ISELIN, NJ - SYRACUSE, NY - ROCHESTER, NY - DELHI, NY

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