Arnold v. KPMG LLP, 334 F. App'x 349 (2d Cir. 2009). · Go Syfert
Arnold v. KPMG LLP, 334 F. App'x 349 (2d Cir. 2009). Cases Citing This Book View Copy Cite
“plaintiff's 13 contention that the period of repose begins to run at the time of the last alleged misrepresentation 14 (even when made after the final purchase or sale of the securities) ignores the applicable limitations 15 period, and thus, is devoid of merit.”
32 citation events (32 in the last 25 years) across 7 distinct courts.
Strongest positive: Robinson v. Lee (nyed, 2024-08-20)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 17 distinct citers.
examined Cited as authority (verbatim quote) Robinson v. Lee
E.D.N.Y · 2024 · quote attribution · 1 verbatim quote · confidence high
plaintiff's contention that the period of repose begins to run at the time of the last alleged misrepresentation (even when made after the final purchase or sale of the securities) ignores the applicable limitations period, and thus, is devoid of merit.
examined Cited as authority (verbatim quote) Integrated Media Res., LLC v. Morley
2d Cir. · 2023 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
plaintiff's 13 contention that the period of repose begins to run at the time of the last alleged misrepresentation 14 (even when made after the final purchase or sale of the securities) ignores the applicable limitations 15 period, and thus, is devoid of merit.
examined Cited as authority (verbatim quote) Guy v. CPI Associates, Inc. (3×) also: Cited as authority (rule)
S.D.N.Y. · 2020 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
he three- year statute of limitations period began to run on the accounting malpractice claim against kpmg no later than may 13, 1998, the date when kpmg issued its formal opinion letter to plaintiff.
cited Cited as authority (rule) Du v. Segelman
E.D.N.Y · 2025 · confidence medium
Sept. 25, 2020), which, in turn, quoted Arnold v. KPMG LLP, 334 F. App’x 349, 351 (2d Cir. 2009)).
cited Cited as authority (rule) Hultman v. Mattson
N.D. Cal. · 2024 · confidence medium
Cal. Mar. 4, 2021) (adopting the latter view) 2 (first quoting Arnold v. KPMG LLP, 334 F. App’x 349, 351 (2d Cir. 2009), and then citing In re 3 Exxon Mobil Corp. Sec.
discussed Cited as authority (rule) Globe Cotyarn Pvt. Ltd. v. AAVN, Inc.
S.D.N.Y. · 2020 · confidence medium
Cir. 2004) (affirming dismissal without leave to amend where plaintiff offered only “conclusory assertions” that amendment would cure a complaint’ deficiencies and “failed to disclose what additional allegations they would make which might lead to a different result”); Arnold v. KPMG LLP, 334 F. App’x 349, 352-53 (2d Cir. 2009) (affirming trial court’s dismissal without leave to amend where plaintiff “failed to identify those facts that would save his complaint, should he be granted leave to amend, with sufficient specificity”).
discussed Cited as authority (rule) Freihofer v. Vermont Country Foods, Inc.
D. Vt. · 2019 · confidence medium
The Court nonetheless held that claims were timely for false disclosures made both within and outside of the repose period, “[a]s those statements made within the repose period likely bear a factual nexus to statements made outside of the repose period.” Id. at 378 . 2 The Second Circuit has rejected this principle in an unpublished opinion, stating that “Plaintiff’s contention that the period of repose begins to run at the time of the last alleged misrepresentation (even when made after the final purchase or sale of the securities) ignores the applicable limitations period, and thus i…
discussed Cited as authority (rule) Wiedis v. Dreambuilder Investments, LLC
S.D.N.Y. · 2017 · confidence medium
Fatal to Plaintiffs, however, the Second Circuit has already answered this precise question: “[t]he ... statute of repose in federal securities law claims, [under Sec tion 1658(b) ] starts to run on the date the parties have committed themselves to complete the purchase or sale transaction.” Arnold v. KPMG LLP, 334 Fed.Appx. 349, 351 (2d Cir. 2009) (internal quotation marks and citation omitted), cert denied, 558 U.S. 991 , 130 S.Ct. 503 , 175 L.Ed.2d 348 (2009).
discussed Cited as authority (rule) Kaplan v. S.A.C. Capital Advisors, L.P.
S.D.N.Y. · 2014 · confidence medium
A violation under Section 10(b) and Rule 10b-5 occurs “on the dates the parties have committed themselves to complete the purchase or sale of transaction.” Arco Capital Corp., Ltd. v. Deutsche Bank AG, 949 F.Supp.2d 532, 544 (S.D.N.Y.2013) (quoting Arnold v. KPMG LLP, 334 Fed.Appx. 349, 351 (2d Cir.2009)).
discussed Cited as authority (rule) Arco Capital Corp. v. Deutsche Bank AG
S.D.N.Y. · 2013 · confidence medium
Under the Second Circuit’s decision in Arnold v. KPMG LLP, 334 Fed.Appx. 349, 351 (2d Cir.2009), “the statute of repose in federal securities law claims starts to run on the date the parties have committed themselves to complete the purchase or sale transaction.” The June 6 Opinion held that the statute of repose barred the CRAFT Notes claims because at latest Arco purchased the CRAFT Notes in May 2007, more than five years before filing its initial Complaint, and “Arco has not meaningfully distinguished itself from Arnold.” (June 6 Opinion at 545.) Arco’s FAC contends that the Jul…
discussed Cited as authority (rule) Arco Capital Corporations Ltd. v. Deutsche Bank AG
S.D.N.Y. · 2013 · confidence medium
The statute of repose begins to run “on the dates the parties have committed themselves to complete the purchase or sale of transaction.” Arnold v. KPMG LLP, 334 Fed.Appx. 349, 351 (2d Cir.2009) (stating that “Plaintiffs contention that the period of repose begins to run at the time of the last alleged misrepresentation (even when made after the final purchase or sale of the securities) ignores the applicable limitations period, and thus is devoid of merit.”); Anwar v. Fairfield Greenwich Ltd., 728 F.Supp.2d 372, 428 (S.D.N.Y.2010) (dismissing Section 10(b) claims as time-barred becaus…
discussed Cited "see" The Central Orthopedic Group, LLP v. Aetna Life Insurance Company
E.D.N.Y · 2025 · signal: see · confidence high
See Arnold v. KPMG LLP, 334 F. App’x 349, 352-53 (2d Cir. 2009) (affirming denial of leave to amend because “Plaintiff failed to identify those facts that would save his complaint, should he be granted leave to amend, with sufficient specificity”); Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) (“[W]here the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied.” (citation omitted)).
discussed Cited "see" The Central Orthopedic Group, LLP v. Aetna Life Insurance Company
E.D.N.Y · 2025 · signal: see · confidence high
See Arnold v. KPMG LLP, 334 F. App’x 349, 352-53 (2d Cir. 2009) (affirming denial of leave to amend because “Plaintiff failed to identify those facts that would save his complaint, should he be granted leave to amend, with sufficient specificity”); Horoshko v. Citibank, N.A., 373 F.3d 248, 249 (2d Cir. 2004) (“[A]n amendment is not warranted absent some indication as to what appellants might add to their complaint in order to make it viable.” (cleaned up)); Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) (“[W]here the plaintiff is unable to demonstrate that he would be ab…
cited Cited "see" Gagliardi v. Prager Metis CPAs LLC
S.D.N.Y. · 2024 · signal: see · confidence high
See Arnold v. KPMG LLP, 334 F. App’x 349, 352 (2d Cir. 2009) (citing McCoy v. Feinman, 785 N.E.2d 714, 718 (N.Y. 2002)).
cited Cited "see" Porrazzo v. Bumble Bee Foods, LLC
S.D.N.Y. · 2011 · signal: see · confidence high
See Arnold v. KPMG LLP, 334 Fed.Appx. 349, 352-53 (2d Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 503 , 175 L.Ed.2d 348 (2009).
discussed Cited "see" Anwar v. Fairfield Greenwich Ltd.
S.D.N.Y. · 2010 · signal: see · confidence high
See Arnold, v. KPMG LLP, 334 Fed.Appx. 349, 351 (2d Cir.2009) (stating that statute of limitations “starts to run on the date the parties have committed themselves to complete the purchase or sale transaction” regardless of when the last misrepresentation occurred); In re Alstom SA Sec.
discussed Cited "see" Houraney v. Burton & Associates, P.C.
E.D.N.Y · 2010 · signal: see · confidence high
See Arnold v. KPMG LLP, 334 Fed.Appx. 349, 352-53 (2d Cir.2009) (leave to amend was properly denied where “plaintiff failed to identify those facts that would save his complaint, should he be granted leave to amend, with sufficient specificity.”) CONCLUSION Plaintiffs proposed amended complaint fails to state a claim of fraud.
Edward H. ARNOLD
v.
KPMG LLP, and Sidley Austin Brown & Wood LLP
No. 08-2040-cv.
Court of Appeals for the Second Circuit.
Jun 1, 2009.
334 F. App'x 349
Michael J. Avenatti, Eagan O’Malley & Avenatti, LLP, Newport Beach, CA, for Appellant., Robert J. Kheel, Willkie Farr & Gallagher, LLP (Kevin B. Clark and Rita D. Mitchell, on the brief), New York, NY, for Appellee KPMG., Richard E. Drooyan, Munger, Tolies & Olson LLP, Los Angeles, CA and Coving-ton & Burling, LLP (Andrew A. Ruffino, Philip A. Irwin, and Jason P. Criss, on the brief), New York, NY, for Appellee Sidley Austin.
Hon, Walker, Wallace, Wesley.
Cited by 18 opinions  |  Published

SUMMARY ORDER

Plaintiff-Appellant Edward H. Arnold appeals from a judgment of the United States District Court for the Southern District of New York (Crotty, J.) dismissing his third amended complaint. In August 2005, Plaintiff commenced the instant action against Defendant-Appellees KPMG LLP (“KPMG”) and Sidley Austin Brown & Wood LLP (“Brown & Wood”) for federal securities fraud pursuant to Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5, and for several New York law causes of action, the gravamen of which was professional malpractice. The district court granted Defendants’ motion to dismiss Plaintiffs amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on statute of limitations grounds. We assume the parties’[*351] familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal. See Arnold v. KPMG LLP, 543 F.Supp.2d 230, 231-34 (S.D.N.Y.2008).

"We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks and citation omitted). A complaint must plead "enough facts to state a claim to relief that is plausible on its face" to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Federal Securities Law Claim

At the time of Plaintiffs securities transactions, claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule lOb-S had to be brought "within one year after the discovery of the facts constituting the violation and within three years after such violation." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991); see also In re Lawrence, 293 F.3d 615, 620-21 (2d Cir.2002).[1] The three-year statute of repose in federal securities law claims "starts to run on the date the parties have committed themselves to complete the purchase or sale transaction." Groudahl v. Merritt & Harris, Inc., 964 F.2d 1290, 1294 (2d Cir.1992) (emphasis omitted).

Here, Plaintiffs claim is based on a series of securities transactions he executed beginning in September 1997 and ending in December 1997, with the last of these transactions occurring on December 31, 1997. Plaintiff did not commence this suit until August 19, 2005. Accordingly, the district court correctly concluded that Plaintiffs federal securities claims were time-barred as of December 31, 2000, almost five years before the commencement of this action. Plaintiffs contention that the period of repose begins to run at the time of the last alleged misrepresentation (even when made after the final purchase or sale of the securities) ignores the applicable limitations period, and thus, is devoid of merit.

State Law Claims

As the district court concluded (and Plaintiff conceded), his various state law claims against KPMG and Brown & Wood merged into a single claim for professional malpractice against both Defendants. Under New York law, an action for professional malpractice, either legal or accounting, must be commenced within three years from the date of accrual. See N.Y. C.P.L.R. § 214(6). "A claim accrues when the malpractice is committed, not when the client discovers it." Williamson v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 7-8, 840 N.Y.S.2d 730, 872 N.E.2d 842 (2007); see also Glamm v. Allen, 57 N.Y.2d 87, 93, 453 N.Y.S.2d 674, 439 N.E.2d 390 (1982). An accounting malpractice claim "accrues upon the client's receipt of the accountant's work product since this is the point that a client reasonably relies on the accountant's skill and advice and, as a consequence of such reliance, can become liable for tax deficiencies." Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 (1994). At this time, "all the facts necessary to the[*352] cause of action have occurred and an injured party can obtain relief in court.” Id.

To sustain a claim for legal malpractice in New York, a plaintiff must demonstrate that the “attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence.” AmBase Corp. v. Davis Polk & Wardwell, 8 Ñ.Y.Sd 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 (2007) (internal citation omitted). Such a claim accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court.” McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 (2002) (internal quotation marks and citation omitted). Generally, “this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is then ignorant of the wrong or injury.” Id. (internal quotation marks and citation omitted). It is well-settled that the relevant inquiry is “when the malpractice was committed, not when the client discovered it.” Id. (internal quotation marks and citation omitted).

We agree with the district court that the three-year statute of limitations period began to run on the accounting malpractice claim against KPMG no later than May 13, 1998, the date when KPMG issued its formal opinion letter to Plaintiff. Thus, Plaintiffs malpractice claim was time-barred as of May 13, 2001. This rule applies with equal force to the legal malpractice claim asserted against Brown & Wood. Brown & Wood issued its legal opinion letter (which contained the allegedly incorrect legal advice upon which Plaintiffs claims are based), on August 28,1998; thus, the claims asserted against it were similarly time-barred three years from that date. Moreover, as set forth in the well-reasoned opinion of the district court, Plaintiff cannot avoid the statute of limitations bar by claiming that the limitations period was tolled because of the continuous representation doctrine or fraudulent concealment. See Arnold, 543 F.Supp.2d at 236-37.

Request to Replead the Complaint

Under the Federal Rules of Civil Procedure, “[a] party may amend its pleading once as a matter of course ... before being served with a responsive pleading.” Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend its pleading by leave of the court which should be “freely give[n] ... [when] justice so requires.” Fed.R.Civ.P. 15(a)(2). “A district court has broad discretion to decide whether to grant leave to amend, a decision that we review for an abuse of discretion.” Joblove v. Barr Labs. Inc. (In re Tamoxifen Citrate Antitrust Litig.), 429 F.3d 370, 404 (2d Cir.2005). “[W]here .the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir.1999). Although leave to amend should be liberally granted, it may properly be denied for “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo, 514 F.3d at 191 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

We conclude that the district court acted well within its discretion in denying Plaintiff leave to amend his complaint. Plaintiff failed to identify those facts that would save his complaint, should he be granted[*353] leave to amend, with sufficient specificity. Although Plaintiff asserts he brought certain facts to the district court’s attention at oral argument on the motion to dismiss, a review of the transcript of that hearing reveals that Plaintiff proffered only vague and general allegations of “communications” and “conversations” between Plaintiff and Defendants. The district court did not abuse its discretion in denying Plaintiff leave to amend under these circumstances. See Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir.2006).

Accordingly, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED.

1

The Sarbanes-Oxley Act of 2002 extended the statute of repose to two years after discovery of the alleged fraud and five years from the date of the securities transaction at issue. See 28 U.S.C. § 1658(b). But these new pen-ods do not apply retroactively to revive causes of action time-barred before July 30, 2002. See In re Enter. Mortg. Acceptance Co., LLC Sec. Litig., 391 F.3d 401, 411 (2d Cir.2004).