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Susan Appert, Individually and On Behalf of All Others Similarly v. Morgan Stanley Deanwitter, Inc

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ARGUED SEPTEMBER 14, 2011

Before WOOD, TINDER, and HAMILTON,Circuit Judges.

Morgan Stanley entered into agreements with its customers that set a fee for handling, postage, and insurance (HPI) for mailing trade confirmation slips after each purchase or sale of securities. Plaintiff, Susan Appert, filed this breach of con-tract action in state court seeking class certification and recovery of these fees charged to customers from 1998 through the present. Morgan Stanley removed the action to federal court asserting jurisdiction pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d), or alternatively, the Securities Litigation Uni-form Standards Act (SLUSA), 15 U.S.C. § 78p(b) and (c) and § 78bb(f), and moved for dismissal. The district court granted Morgan Stanley’s motion, but allowed Appert leave to file an amended complaint. Appert amended her breach of contract claim and also brought a related claim for unjust enrichment. She alleges that Morgan Stanley breached the Client Account Agreement (Agreement) by charging an HPI fee that bore no relationship and was grossly disproportionate to Morgan Stanley’s actual transaction costs. Morgan Stanley again moved for dismissal, arguing that SLUSA barred Appert’s suit or, alternatively, that Appert failed to state a claim for relief. The district court agreed and dismissed Appert’s amended complaint.

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