OPINION AND ORDER Pending before the Court are motions for summary judgment on Plaintiffs’ sole remaining claim for aiding and abetting fraud under New York law. The motions are brought by the two remaining groups of Defendants: (1) Isaac R. Dweck (individually and as custodian for Nathan Dweck), Barbara Dweck, Morris I. Dweck, Ralph I. Dweck, and Jack Dweck (collectively, “the Dwecks”), and (2) Aaron Wolfson, the Estate of Abraham Wolfson,1 and Morris Wolfson (collectively, “the Wolfsons”; with the Dwecks, “Defendants”). For the following reasons, the motions are granted. I. Background A. Facts Given this case’s extremely lengthy history, the parties in large part (and understandably) did not focus on the basic background in their briefing. Nevertheless, as the Honorable Paul A. Crotty — to whom this case was previously assigned — succinctly summarized: From May 1992 until July 1996, A.R. Baron [a broker dealer ('Baron')] and its officers, employees, and co-conspirators perpetuated a massive securities fraud scheme. Plaintiffs were Baron customers during the relevant time period and commenced this action in 1999 against eleven organizations and individuals for their alleged participation in the scheme. After [25] years, full bankruptcy proceedings, the convictions of Baron and its officers, and a seemingly endless barrage of litigation, the Wolfson Defendants and the Dweck Defendants are the sole remaining Defendants in this case. Fezzani v. Bear, Stearns & Co., No. 99 Civ. 793 (PAC), 2023 WL 2612454, at *1 (S.D.N.Y. Mar. 23, 2023). Plaintiffs characterize the fraudulent scheme as a “pump and dump” in which “Baron sold securities in a small number of small issuers, trading in the over-the-counter markets, referred to as the Baron ‘House Stocks.’” Dkt. 502 (“Opposition”) at 7. As explained by Roman Okin, who was Plaintiffs’ broker at Baron, the Wolfsons and the Dwecks were allegedly part of “a small group of ‘favored’ investors…[who] received special treatment and various financial benefits from Baron including guaranteed profit, pre-arranged securities trades in exchange for providing capital for the firm and permitting their accounts to be used for parking shares of…[H]ouse [S]tocks.” Dkt. 498 (“Okin Decl.”) 11; see id. 8 (listing Plaintiffs as Okin’s customers). Plaintiffs explain that parking “involves placing stock in a favored investor’s account while the broker promises to buy back shares, if necessary, at a price that affords the insider a guaranteed profit.” Opposition at 24. As the Second Circuit described, Plaintiffs allege that “[b]ased on Baron’s salespeople’s false representations of trading volume and increasing stock prices inducing customers to buy, Baron and its co-conspirators would sell their holdings at a profit before the stock crashed.” Fezzani v. Bear, Stearns & Co., 716 F.3d 18, 21 (2d Cir. 2013) (“2d Cir. 2013 Opinion”). While Defendants dispute many of Plaintiffs’ characterizations of their conduct, these disputes are of no moment in light of the analysis below. B. Procedural History The Court briefly summarizes the procedural history of this case that is relevant to the instant motions. As noted above, Plaintiffs instituted this action in 1999, Dkt. 1, and they filed the operative Amended Complaint in 2005, Dkt. 98. Judge Crotty dismissed many of the defendants in this case, including the Wolfsons and the Dwecks, from the action in 2008. See Fezzani v. Bear, Stearns & Co., 592 F. Supp. 2d 410, 416 (S.D.N.Y. 2008). On appeal, the Second Circuit affirmed the dismissals except for Plaintiffs’ New York law claims for civil conspiracy to defraud and aiding and abetting fraud against the Dwecks and the Wolfsons. See 2d Cir. 2013 Opinion (regarding the Dwecks); Fezzani v. Bear, Stearns & Co., 527 F. App’x 89, 92 (2d Cir. 2013) (“2d Cir. 2013 Summary Order”) (regarding the Wolfsons). The Circuit subsequently denied a motion for panel rehearing. See Fezzani v. Bear, Stearns & Co., 777 F.3d 566, 568 (2d Cir. 2015) (“2d Cir. 2015 Opinion”). On remand, the parties “agreed to truncate discovery in an effort to expedite the resolution of the lawsuit”; Judge Crotty then granted summary judgment in favor of Defendants in 2018. Fezzani v. Bear, Stearns & Co., No. 99 Civ. 793 (PAC), 2018 WL 324897, at *1 (S.D.N.Y. Jan. 5, 2018). The Circuit vacated this decision the following year. See Fezzani v. Dweck, 779 F. App’x 815, 818 (2d Cir. 2019). In July 2023, Judge Crotty granted Defendants’ motion for judgment on the pleadings on the conspiracy claim against them, leaving only the aiding and abetting fraud claim. See Fezzani v. Bear, Stearns & Co., No. 99 Civ. 793 (PAC), 2023 WL 4625544, at *7 (S.D.N.Y. July 19, 2023). Defendants filed their motions for summary judgment thereafter. Both sets of Defendants filed their opening briefs on September 2, 2023. Dkt. 476 (“Dweck Motion”); Dkt. 479 (original Wolfson motion). After Judge Crotty dismissed certain Plaintiffs from this action on October 5, 2023, Dkt. 490, the Wolfsons re-filed their motion on October 12, 2023, Dkt. 493 (“Wolfson Motion”). Plaintiffs filed their opposition on October 21, 2023, Dkt. 502, and Defendants filed their reply briefs on November 13, 2023, Dkts. 511 (Wolfson reply), 512 (Dweck reply). Defendants also filed motions to strike certain evidence proffered by Plaintiffs that same day. Dkts. 510 (“Dweck Motion to Strike”), 515 (Wolfson motion to strike). Plaintiffs filed their opposition to this motion on November 30, 2023, Dkt. 516, and Defendants filed their reply briefs on December 6, 2023, Dkts. 517 (Wolfson reply), 518 (Dweck reply). This case was reassigned to the undersigned on April 15, 2024. See April 15, 2024 Minute Entry. II. Motions for Summary Judgment and to Strike A. Legal Standard Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and may discharge its burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” id. at 322. “If the moving party meets its initial burden, the nonmoving party must then ‘set forth specific facts showing that there is a genuine issue for trial’ using affidavits or other evidence in the record, and cannot rely on the ‘mere allegations or denials’ contained in the pleadings.” Taylor v. City of New York, No. 19 Civ. 6754 (KPF), 2022 WL 744037, at *6 (S.D.N.Y. Mar. 11, 2022) (quoting Anderson, 477 U.S. at 248). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts…and…may not rely on conclusory allegations or unsubstantiated speculation…. [A] nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal quotation marks and citations omitted); see also Anderson, 477 U.S. at 252 (requiring the non-movant to present more than a “scintilla of evidence”). “Where no rational finder of fact could find in favor of the nonmoving party because the evidence to support its case is so slight, summary judgment must be granted.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal quotation marks and citation omitted). In deciding a motion for summary judgment, the Court must “resolve all ambiguities and draw all justifiable factual inferences in favor of the party against whom summary judgment is sought.” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). At the same time, however, “in considering ‘what may reasonably be inferred’ from witness testimony, the court should not accord the nonmoving party the benefit of ‘unreasonable inferences, or inferences at war with undisputed facts.’” Taylor, 2022 WL 744037, at *7 (quoting Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)). B. Law of the Case A central issue in resolving the pending summary judgment motions is the scope of Plaintiffs’ aiding and abetting fraud claim and, more specifically, the impact of the Second Circuit’s prior opinions on that cause of action. The parties remain extremely far apart on this issue. As they summarized in their joint status letter of April 29, 2024, their disagreement over the scope of this remaining cause of action has prevented any meaningful resolution of this case for well over a decade. Dkt. 523 at 5. The parties do not dispute the basic legal framework for aiding and abetting fraud under New York law, which they agree applies to Plaintiffs’ claim. See Dweck Motion at 6; Wolfson Motion at 8; Opposition at 23. “To establish liability for aiding and abetting fraud under New York law, a plaintiff must show (1) the existence of a fraud; (2) the defendant’s knowledge of the fraud; and (3) that the defendant provided substantial assistance to advance the fraud’s commission.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006) (cleaned up). “To satisfy the knowledge prong, a plaintiff must demonstrate that the defendant had actual knowledge of the underlying fraud.” Pennington v. D’Ippolito, 855 F. App’x 779, 783 (2d Cir. 2021) (citing Oster v. Kirschner, 905 N.Y.S.2d 69, 72 (1st Dep’t 2010)); accord Lerner, 459 F.3d at 292. “Constructive knowledge does not suffice.” Pennington, 855 F. App’x at 783. In turn, “[u]nder New York law, the five elements of fraud are (1) a material misrepresentation or omission of fact (2) made by a defendant with knowledge of its falsity (3) and intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the plaintiff.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 13 F.4th 247, 259 (2d Cir. 2021) (cleaned up).2 The most significant discrepancy between the parties’ positions concerns the underlying fraud. Per Plaintiffs, the underlying fraud constitutes “statement[s] that Baron was a legitimate brokerage firm engaged in legitimate trading or the fraudulent omission to disclose [that] the entire Baron enterprise was in fact fraudulent.” Opposition at 17. By contrast, the Dwecks assert that the underlying fraud constitutes “Baron s[elling] shares to [Plaintiffs] at prices that were manufactured by Baron salespeople but were represented as set by trading in a market that was falsely represented to exist.” Dweck Motion at 7 (quoting 2d Cir. 2015 Opinion, 777 F.3d at 572). The Wolfsons broadly agree with the Dwecks’ characterization, stating that prior decisions in this case have “restricted the aiding and abetting claim to include only: (1) trades the Plaintiffs authorized Baron to execute on their behalf; and, in connection with those trades (2) proof of specific misrepresentations by Baron relating to each individual Plaintiff trade.” Wolfson Motion at 3. Plaintiffs object to these characterizations, contending that the “predicate fraud in this case is not…about treating individual purchases or sales in isolation,…[but] about whether a reasonable jury could find [that] the entire Baron criminal scheme was a fraud.” Opposition at 17. Defendants broadly speaking have the better of the argument. This Court is bound by the Second Circuit’s prior descriptions of the Amended Complaint’s allegations under the mandate rule. “The mandate rule compels compliance on remand with the dictates of the superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (internal quotation marks omitted). “[T]he trial court should look to both the specific dictates of the remand order as well as the broader spirit of the mandate.” Id. (internal quotation marks omitted). The Second Circuit’s decisions make clear that the misrepresentation theory alleged in the Amended Complaint concerns, as the Dwecks contend, allegations “only that Baron sold shares to appellants at prices that were manufactured by Baron salespeople but were represented as set by trading in a market that was falsely represented to exist.” 2d Cir. 2015 Opinion, 777 F.3d at 572; see id. at 573 (“To sum up, the facts alleged in this complaint do not involve any ongoing market affected by false pricing signals by Dweck. What they involve are misrepresentations to the victims by Baron salespeople as to how the price they were charging for particular securities was arrived at.”). Or as the Circuit summarized in its first decision in this case in 2013: [Plaintiffs] alleged that Baron and Bear Stearns falsely represented the securities were trading in “an active, liquid, bona fide market,” and that [they] believed the price at which the securities were offered was that established by that public market rather than an artificial price established by Baron. The deception on which [Plaintiffs] relied, therefore, were statements by Baron’s salespeople that the customers were buying at a price set by public market activity. 2d Cir. 2013 Opinion, 716 F.3d at 21 (quoting Am. Compl. 21) (citations omitted). Notably, the Circuit also concluded that “[i]n the entire 116-page complaint, [Plaintiffs] have not specifically pleaded a causal link between any single stock purchase or sale and a corresponding parking by Dweck or coordinated transactions by others.” 2d Cir. 2015 Opinion, 777 F.3d at 572; see also 2d Cir. 2013 Opinion, 716 F.3d at 23 (“There is no allegation that any [Plaintiff] was told of Dweck’s artificial trading, or purchased such securities in specific reliance on such trading. Baron and Bear Stearns are the sole sources alleged regarding [Plaintiffs'] perceptions of prices at which trades were being made.” (citations omitted)).3 The Court can discern no reason to find that these characterizations of the Amended Complaint’s allegations would not equally apply to Plaintiffs’ remaining aiding and abetting fraud claim, even as the Circuit’s opinions focused on their dismissed federal securities fraud claims. Rather, the Circuit remanded the aiding and abetting fraud claim because these same allegations sufficed at the pleadings stage for that claim. As the Circuit panel wrote in the 2013 Opinion, “Dweck is sufficiently alleged to have had particular knowledge of some artificial trades, to have participated in them, and to have actively facilitated Baron’s fraudulent business generally by loans and other investments.…[Plaintiffs] have sufficiently pleaded with particularity that Dweck provided knowing and substantial assistance in financing and facilitating the Baron fraud.” 2d Cir. 2013 Opinion, 716 F.3d at 23, 25; see 2d Cir. 2013 Summary Order, 527 F. App’x at 92 (holding “that plaintiffs sufficiently pleaded with particularity the involvement of [the Wolfsons] in the alleged conspiracy such that plaintiffs can survive a motion to dismiss as to these three defendants’ state law claims” for civil conspiracy to defraud and aiding and abetting fraud). While the Circuit did not explicitly spell out the knowledge aspect of the aiding and abetting fraud claim, the Amended Complaint makes clear that at least the Wolfsons’ relevant knowledge was of the misrepresentations regarding the securities’ pricing.4 See Am. Compl. 293 (“The Wolfson Defendants were aware, because of their knowledge and experience in the securities markets as well as because they had been so informed by [Andrew] Bressman [Baron's Chief Executive Officer during most of the relevant period], that Baron customers, such as Plaintiffs, would have the beliefs outlined above,” i.e., that Plaintiffs “were buying and selling securities at actual market prices rather than buying securities at inflated and manipulated prices”). It also is confirmed by the Amended Complaint’s stated (and since dismissed) theory of common law fraud, which was that the Baron Defendants’ and Bear Stearns’s misrepresentations and omissions to Plaintiffs “cause[d] [P]laintiffs to form false impressions in [their] minds that the [House Stocks] were trading in legitimate, competitive, liquid markets and that prices at which such securities traded were bona fide and not the product of manipulation.” Id. 349. Given these factors, the relevant underlying fraud at issue is not a roving inquiry into malpractice at Baron or misrepresentations “that Baron was a legitimate brokerage firm engaged in legitimate trading,” Opposition at 17, but rather a theory centered on Baron brokers’ misrepresentations to Plaintiffs that they were buying securities for which a bona fide market existed and at prices that were determined by that fictitious market. Ultimately, Plaintiffs must show that the Wolfsons and the Dwecks had actual knowledge that the Baron brokers made those misrepresentations to Plaintiffs, among other requirements. That legal framing informs the remainder of the Court’s decision. C. Motion to Strike Before turning to the substance of summary judgment, the Court must resolve one aspect of the Dwecks’ motion to strike. The Dwecks move to strike several statements in the Okin Declaration. First, they seek to strike paragraphs 11, 12, and 13 of the Declaration, which read in relevant part that: “There was a small group of ‘favored’ investors, sometimes referred to at Baron as ‘VIPs.’ They received special treatment and various financial benefits from Baron including guaranteed profit, pre-arranged securities trades in exchange for providing capital for the firm and permitting their accounts to be used for parking shares of A.R. Baron ‘house stocks.’” Okin Decl. 11. “Bressman had explicit agreements of that type…with [the Wolfsons], and with Isaac R. Dweck, and agreed to treat them as ‘favored’ investors. I know that of my personal knowledge because when Bressman was out of the office, I was responsible for transactions with the Wolfsons and Dweck.” Id. 12. “[Isaac] Dweck was often in the Baron office and consulted with Bressman about the operation of the firm. He introduced the Wolfsons to Baron and because of that relationship had special status.” Id. 13. The Dwecks argue that these statements should be excluded on the basis that Okin lacks personal knowledge of these matters, as required by Rule 56(c)(4), and that they are speculative and conclusory. See Dweck Motion to Strike at 5-6. The motion is denied as to these statements. As relevant here, “[t]he test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge.” Searles v. First Fortis Life Ins. Co., 98 F. Supp. 2d 456, 461 (S.D.N.Y. 2000) (citation omitted); accord Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 764 (2d Cir. 1991) (applying this rule in the context of Federal Rule of Evidence 602). “The lack of certain specific details or arguably vague statements will not render the affidavit inadmissible, but affect the weight and credibility of the testimony, which have to be determined by the trier of fact at trial.” Han v. Shang Noodle House, Inc., No. 20 Civ. 2266 (PKC), 2023 WL 5755213, at *6 n.8 (E.D.N.Y. Sept. 5, 2023) (internal quotation marks omitted). A reasonable trier of fact plainly could believe that Okin had personal knowledge of these matters. Okin declared that he “was the head salesman” at Baron for much of the brokerage’s existence and that he “was responsible for transactions with the Wolfsons and Dweck” when Bressman was out of office. Okin Decl.
1, 12. He also declared that he had “personal transactions with Dweck” and discussed stock purchases with Morris and Aaron Wolfson. Id.
