Courtois v. Toms Capital Inv. Mgmt. LP

Issue of Fact Exists on Vicarious Liability as to Unjust Enrichment, Negligence Claims

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 21, 22, 23, 24, and 25 were read on this motion to DISMISS. DECISION ORDER ON MOTION Upon the foregoing documents, it is ordered that the motion by defendant Toms Capital Investment Manager LP to dismiss the claims asserted against in the complaint is determined as follows. Plaintiff Kevin S. Courtois bring this action against defendants Toms Capital Investment Management LP (“Toms”), Kiwi Los Angeles LLC (“Kiwi”),¹and Alex Rosner (“Rosner”), alleging that defendants advised him to invest in high-risk securities which, due to defendants’ negligence or fraud, resulted in approximately $300,000 in losses. The 11-count complaint asserts causes of action for: (1) fraud/fraudulent inducement/fraudulent misrepresentation; (2) negligent misrepresentation; (3) unjust enrichment; (4) breach of an implied covenant of good faith and fair dealing; (5) conversion; (6) breach of fiduciary duty; (7) breach of federal securities laws; (8) negligence/malpractice; (9) a private right of action under the Investment Advisers Act of 1940 (15 USC 80b-1, et seq.); (10) a private right of action under the Martin Act (General Business Law art 23-A); and (11) what is coined as “Unsustainable Investments.” Toms now moves pursuant to CPLR 3211 (a) (7) to dismiss the complaint.² Background Plaintiff alleges that he met Rosner at a friend’s engagement party in August 2019 (complaint 6). Rosner allegedly represented that he was an investment officer at an investment advisory and brokerage firm known as Toms Capital Investment Management, LP (id.,

7, 9), that he was the “right hand man” to Toms’ Chief Executive Officer and that Toms’ Chief Investment Officer was “his boss” (id., 13). According to the complaint, in February 2020, Rosner proposed to use Toms’ proprietary research and his knowledge of his boss’ investment strategies to advise plaintiff on trading in stocks and stock options using plaintiff’s Robinhood brokerage account (id.,

Courtois v. Toms Capital Inv. Mgmt. LP

Issue of Fact Exists on Vicarious Liability as to Unjust Enrichment, Negligence Claims

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