17-2319-cv Sejin Precision Indus. Co. Ltd. et al. v. Citibank, N.A., et al. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthous e, 40 Foley Square, in the City of New York, on the 5 th day of March, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR., PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges

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--------------- --------------- --------------- --------------- ---------- S EJIN P RECISION I NDUSTRY C O ., L TD .; M TEKVISION C O ., L TD .; S UNGJIN T EXTILE I NDUSTRY C O

. L TD .; S AMHWAN S TEEL C O ., L TD .; T ECHNO E LECTRONICS C O ., L TD .; AND I L S HIN S PINNING C O

. L TD ., Plaintiffs-Appellants , v. No. 17-2319-cv
C ITIBANK , N.A.; C ITIGROUP , I NC .; C ITIBANK O VERSEAS I NVESTMENT C ORPORATION ; C ITICORP H OLDINGS I NC .; AND C ITIGROUP G LOBAL M ARKETS I NC ., Defendants-Appellees

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--------------- --------------- --------------- --------------- ---------- For Appellants: Alan L. Po liner, Kim & Bae, P.C., Fort Lee, New Jersey. For Appellees: D ANIEL M. P ERRY , Milbank, Tweed, Hadley & McCloy LLP (Jed M. Schwartz, Taryn J. Gallup, Daniel B. Kaplan, on the brief ), New York, New York.

### 2 Appeal from a judgment of the United States District Court for the Southern District of New York (Rakoff, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on June 30, 2017, is AFFIRMED

. Plaintiffs Sejin Precision I ndustry Co. Ltd., Mtekvision Co., Ltd., Sungjin Textile Industry Co., Ltd., Samhwan Steel Co., Ltd., Techno Electroni cs Co., Ltd., and Il Shin Spinning Co., Ltd. (collectively, “Plaintiffs”) are South Korean manufacturers that export their products. They receive payment for their goods in various curre ncies, including U.S. dollars (“USD”), and exchange those currencies for South Korean won (“ KRW”). As a result, Plaintiffs bear the risk arising from fluctuations in the USD-KRW exchange rate. To minimize their exposure to fluctuations in that exchange rate, Plaintiffs entered into contracts with non-party Citibank Korea, Inc. (“CK I”). These financial instruments were called “KIKOs,” which stands for “knock-in, knock-out.” Plaintiffs allege that Defendant Citigroup, Inc. and its subsidiaries Defe ndants Citibank, N.A., Citibank Over seas Investment Corporation, Citicorp Holdings Inc., and Citigroup Global Mark ets Inc. (collectively, “Defendants”) designed the KIKOs and marketed them to unsophisticated bus inesses in Asia through subsidiaries such as
CKI. Between November 2004 and March 2008, Plainti ffs entered into several KIKO contracts with CKI. Throughout 2008, the dolla r appreciated considerably ag ainst the won. As a result, from December 2007 through August 2010, Plaintiffs suffered millions of dollars in losses when

### 3 CKI exercised its option to exchange won for more valuable dollars. 1 On September 2, 2016, Plaintiffs initiated this action against Defendants. The thrust of Plaintiffs’ claims on appeal is that CKI duped th em into purchasing KIKOs by falsely stating that the KIKOs would serve as a hedge because CKI be lieved that the dollar would weaken against the won. Plaintiffs further allege that CKI sold them KIKOs without disclosing that its affiliates were engaged in attempts to manipulate benchmark fore ign exchange rates, including manipulation that affected the USD-KRW exchange rate. The distri ct court dismissed Plaintiffs’ claims because they fell outside New York’s statute of limitations period. Alternatively, the district court held that Plaintiffs failed to state a plausible claim for relief. We review de novo a district court’s grant of a motion to dismiss for failure to state a claim. Trs. of the Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter, accep ted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Likewise, at the pleading stage, a compla int is subject to dismissal “if it appears on the face of the complaint that the cause of action has not been brought within the statute of limitations.” Santos v. Dist. Council of United Bhd. of Carpenters, AFL-CIO , 619 F.2d 963, 967 n.4 (2d Cir.

1 See Cmpl. at ¶ 655 (alleging that Sejin experienced losses betw een December 2007 and February 2008); id. at ¶ 750 (alleging that CKI made its last trade under a KIKO contract with Mtek on January 21, 2010); id. at ¶¶ 786, 794, 801, 804 (alleg ing that, in August 2007, Sungjin entered into three KIKO contracts that had at most three-year terms, and thus CKI’s exercise of its options under those contracts must have taken place before or during August 2010); id. at ¶ 867 (alleging that Samhwan suffered KI KO-related losses in 2009); id. at ¶¶ 917–20 (alleging that Techno experienced losses between March and June 2008); id. at ¶ 970 (alleging th at Ilshin experienced losses in March, September, and October of 2008).

### 4 1980); see also Harris v. City of N.Y. , 186 F.3d 243, 250 (2d Cir. 1999). In undertaking this review, we assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our deci sion to affirm the distri ct court’s decision. Plaintiffs are South Korean companies that allege that they suffered lo sses in South Korea. To sustain a claim for fraud under New York law, th erefore, Plaintiffs’ fraud claims must be timely under the statutes of limitations of both New York and South Korea. N.Y. C.P.L.R. § 202. In New York, the limitations period fo r a fraud claim is “the greater of six years from the date the cause of action accrued or two year s from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it.” Id. § 213(8). Plaintiffs’ complaint was filed on September 2, 2016. To fall within the six-year peri od, Plaintiffs’ claims mu st have accrued after September 2, 2010. To be saved by the two-year discovery rule, Plaintiffs’ allegations must demonstrate that they could not have discovere d Defendants’ fraud with reasonable diligence before September 2, 2014. Applying this standard, we hold that Plaintiffs’ claims are barred by New York’s statute of limitations. A. Six-Year Accrual Period Plaintiffs entered into KIKO contracts with CKI between November 2004 and March 2008. Plaintiffs allege that they suffered losses on the KIKO contracts from December 2007 through August 2010. Accepting Plaintiffs’ allegations as tr ue, all of Plaintiffs’ fraud claims accrued outside the six-year limitations period. Compare Prichard v. 164 Ludlow Corp ., 854 N.Y.S.2d 53, 54 (1st Dep’t 2008) (fi nding in a cause of action for fraudu lent inducement that § 213(8)’s sixyear period began when the plaintiffs purchased the stocks at issue), with N.Y.C. Transit Auth. v. Morris J. Eisen, P.C. , 715 N.Y.S.2d 232, 237 (1st Dep’t 2000) (“[A] cause of action for fraud

### 5 cannot accrue until every element of the claim, in cluding injury, can truthfully be alleged.”), abrogated on other grounds as recognized in Melcher v. Green berg Traurig, LLP , 988 N.Y.S.2d 101, 104 (2014).
B. Discovery Rule Nor can Plaintiffs rely on New York’s discovery rule to resuscitate their stale claims. As noted above, under the discovery rule fraud claims are timely if br ought within two years of when the plaintiff “discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. § 213(8). “The test as to when fra ud should with reasonable diligence have been discovered is an objective one.” Gutkin v. Siegal , 926 N.Y.S.2d 485, 486 (1st Dep’t 2011) (quoting Armstrong v. McAlpin , 699 F.2d 79, 88 (2d Cir. 1983)). [W]here the circumstances are such as to suggest to a person of ordinary intelligence the probability th at he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would ha ve developed the truth, and shuts his eyes to the facts which ca ll for investigation, knowledge of the fraud will be imputed to him. Id. (quoting Armstrong , 699 F.2d at 88). For instance, public reports of and lawsuits alleging fraud “are sufficient to put a plaint iff on inquiry notice of fraud.” Aozora Bank, Ltd. v. Deutsche Bank Secs. Inc. , 29 N.Y.S.3d 10, 14 (1st Dep’t 2016). Similarly, evidence of losses may put plaintiffs on inquiry notice. Id. Applying this standard, Plainti ffs cannot satisfy the discovery rule because they had ample opportunity to discover the basis for their fra ud claims before September 2, 2014. Plaintiffs allege that they suffered millions of dollars in losses on their KIKO contracts from 2007 to 2010. In response, Plaintiffs filed laws uits in South Korea against CKI, asserting claims arising from the KIKOs. These losses and subsequent lawsuits dem onstrate that Plaintiffs were on notice that

### 6 their losses stemmed from poten tially fraudulent conduct. Plain tiffs had a duty therefore to investigate not just CKI’s conduct but also Defe ndants’ involvement in the KIKO products. Moreover, while Plaintiffs were litigating against CKI in South Korea, another South Korean manufacturer, Simmtech Co. (“Simmtech”), filed lawsuits in the United States against Defendants alleging that the KI KO products were fraudulent, see Simmtech Co. v. Citibank, N.A ., No. 13-cv-6768 (KBF), 2016 WL 4184296 (S.D.N.Y. Aug. 3, 2016), aff’d , 697 F. App’x 35 (2d Cir. 2017), and that Defendants engaged in mark et manipulation that affected the USD-KRW exchange rate, see Simmtech Co. v. Barclays Bank PLC , 13-cv-7953 (LGS) (S.D.N.Y. Nov. 8, 2013), ECF No. 1. Simmtech’s allegations were av ailable in publicly filed documents and were reported in the South Korean press. 2 See Staehr v. Hartford Fin. Servs. Grp., Inc. , 547 F.3d 406, 424–25 (2d Cr. 2008) (holding that the di strict court did not err in ta king judicial notice of press coverage, prior lawsuits, and regulatory filings). These facts indicate that with reasonable diligence Plaintiffs c ould have discovered Defendants’ conduct at least three ye ars before Plaintiffs filed their complaint. Plaintiffs suffered substantial losses and filed several lawsuits agains t CKI, and Defendants’ re lationship to the KIKO products was publicly known as early as July 2013, when Simmtech filed its first complaint. The discovery rule, therefore, does not re nder Plaintiffs’ claims timely.

2 See, e.g. , Na Jeong-ju, Korean firm sues global banks , The Korea Times (Nov. 18, 2013), http://bit.ly/2EQkdm2 (last vi sited Feb. 21, 2018); Kim Yon-se, Korean firms sue IBs in U.S. over FX rigging , The Korea Herald (Nov. 18, 2013), http://bit. ly/2EsRdD2 (last visited Feb. 21, 2018); Hyun Jin Park, Great damage caused by foreign exchange rate manipulation at a global financial company , Dong-A Ilbo (Nov. 19, 2013), http://bit.l y/2EbOkDn (last visited Feb. 21, 2018).

### 7 We have considered Plaintiffs’ remaining argum ents on appeal and find them to be without merit. We AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court