Time-barred

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WI Court of Appeals – District III

Case Name: Scott J. Brauer, et al. v. Veripure, LLC, et al.

Case No.: 2018AP761

Officials: Lundsten, P.J., Blanchard, and Kloppenburg, JJ.

Focus: Time-barred

This appeal involves securities fraud, racketeering, and intentional misrepresentation claims brought against multiple defendants by Scott Brauer, Adam Kilgas, Duane McVane, Matt Vandehey, and Paul Weyers (collectively, “the investors”). The circuit court dismissed these claims on summary judgment. The investors argue that the court erred by: (1) granting summary judgment dismissing all of the investors’ securities fraud claims as time-barred by the applicable statute of limitations; and (2) denying the investors’ post summary judgment motion for leave to file a second amended complaint in an attempt to cure deficiencies identified by the court in the racketeering and intentional misrepresentation claims made in the first amended complaint.

We conclude that the circuit court erroneously granted summary judgment dismissing the securities fraud claims of most of the investors because, based on the record developed to date, there are competing reasonable inferences from the undisputed facts as to whether those claims are barred by the applicable 2-year limitation period. However, investor McVane’s situation is different from that of the other investors. As to McVane, we affirm dismissal of his claims based on McVane’s implicit concession in his reply brief that his securities fraud claims are barred by the applicable 5-year limitation period. Finally, we affirm the court’s denial of the investors’ motion for leave to amend the dismissed racketeering and intentional misrepresentation claims, because the investors fail to address, in their reply brief, the counterargument raised by the defendants in their response brief. Accordingly, we affirm in part, reverse in part, and remand to the circuit court for further proceedings.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.