similarly situated, Plaintiff-Appellant, v. GOLDMAN, SACHS & CO., CREDIT SUISSE FIRST BOSTON, (2nd Cir. 2004)

Docket Number: 03-7781

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 1st day of April, two thousand and four.

PRESENT:

WILFRED FEINBERG JOSÃ‰ A. CABRANES ROSEMARY S. POOLER Circuit Judges ELI WEINSTEIN, individually and on behalf of all others similarly situated, Consolidated Plaintiff-Appellant, MILTON PFEIFFER, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. No. 03-7781

GOLDMAN, SACHS & CO., CREDIT SUISSE FIRST BOSTON CORP., and MORGAN STANLEY DEAN WITTER, Defendants-Appellees.

APPEARING FOR APPELLANTS: DANIEL A. OSBORN, Beatie and Osborn LLP, New York, NY.

APPEARING FOR APPELLEES: ALEXANDER DIMITRIEF (Katherine J. Alprin, Peter D.

Doyle, on the brief), Kirkland & Ellis LLP, New York, NY, appearing for Appellee Morgan Stanley Dean Witter & Co.

Stephanie G. Wheeler (David H. Braff, of counsel), Sullivan & Cromwell, New York, NY, appearing for Appellee Goldman, Sachs & Co.

Lawrence Portnoy (Avi Gesser, of counsel), Davis Polk & Wardwell, New York, NY, appearing for Appellee Credit Suisse First Boston LLC.

Plaintiffs appeal from a June 30, 2003 judgment entered by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge) dismissing their claim for fraud under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder by the Securities Exchange Commission, 17 C.F.R. § 240.10b-5.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

We have considered appellants' arguments on appeal, and we find that they are without merit. Accordingly, the judgment of the District Court is AFFIRMED.

FOR THE COURT, Roseann B. MacKechnie, Clerk of Court By