In a action for breach of contract and securities fraud, district court's grant of plaintiff's motion to dismiss is affirmed where: 1) the court properly ruled that plaintiff's contract claim was barred by the Statute of Frauds as the possibility of performance of the alleged oral agreement within one year depended solely on the will and actions of plaintiff, the party seeking to enforce the agreement; and 2) plaintiff's securities fraud claim under the Securities Exchange Act and SEC rules fail for lack of plausible and cogent allegations of scienter as the factual allegations do not give rise to an inference of either fraudulent intent or conscious recklessness, and the inferences advocated by plaintiff were not as compelling as an inference of negligence.
Appeal from the United States District Court for the Southern District of New York.
Argued: January 16, 2009
Decided: July 14, 2009
Before JACOBS, Chief Judge, KEARSE and HALL, Circuit Judge.
Opinion by KEARSE, Circuit Judge.
For Plaintiff: Ted Poretz
For Defendant: Bennett Falk