UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

HEAVY & GENERAL LABORERS’ ) 

LOCAL 472 & 172 PENSION AND ) 

ANNUITY FUNDS et al., individually ) 

and on behalf of all others similarly situated, ) 

 ) 

 Plaintiff, ) 

 ) No. 20 C 2176 

 v. ) 

 ) Judge Sara L. Ellis 

FIFTH THIRD BANCORP, GREG D. ) 

CARMICHAEL, and TAYFUN TUZUN, ) 

 ) 

Defendants. ) 

ORDER

 The Court denies Lead Plaintiff Heavy & General Laborers’ Local 472 & 172 Pension 

and Annuity Funds (“Lead Plaintiff”) motion for reconsideration [67]. The Court gives Lead 

Plaintiff until October 8, 2021 to file an amended complaint. See Statement for further details. 

STATEMENT

 An individual shareholder brought a putative securities class action lawsuit on behalf of 

herself and all others who purchased common stock in Fifth Third Bancorp (“Fifth Third”) from 

November 9, 2016 and March 6, 2020 (the “Class Period”), alleging that Defendants Fifth Third 

and its officers Greg D. Carmichael and Tayfun Tuzun engaged in federal securities fraud. After 

the Court appointed putative class member Heavy & General Laborers’ Local 472 & 172 

Pension and Annuity Funds as Lead Plaintiff, it filed a consolidated complaint. On April 26, 

2021, the Court dismissed Lead Plaintiff’s consolidated complaint, finding that Lead Plaintiff 

had failed to allege facts that gave rise to a strong inference of scienter on the part of any 

Defendant. Doc. 66. Instead of filing an amended complaint, Lead Plaintiff filed a motion for 

reconsideration, arguing that the Court overlooked certain facts in coming to its conclusion 

regarding Carmichael’s and derivatively Fifth Third’s scienter. 

 Federal Rule of Civil Procedure 54(b) provides that a court may reconsider an 

interlocutory ruling “at any time before the entry of a judgment adjudicating all the claims and 

all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Motions for reconsideration serve a 

limited purpose and are “only appropriate where the court has misunderstood a party, where a 

court has made a decision outside the adversarial issues presented to the court by the parties, 

where the court has made an error of apprehension (not of reasoning), where a significant change 

in the law has occurred, or where significant new facts have been discovered.” Broaddus v. 

Shields, 665 F.3d 846, 860 (7th Cir. 2011) (citing Bank of Waunakee v. Rochester Cheese Sales, 

Case: 1:20-cv-02176 Document #: 74-1 Filed: 09/07/21 Page 1 of 2 PageID #:1164
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Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)), overruled on other grounds, Hill v. Tangherlini, 724 

F.3d 965 (7th Cir. 2013). A motion for reconsideration “is not appropriately used to advance 

arguments or theories that could and should have been made before the district court rendered a 

judgment.” Cnty. of McHenry v. Ins. Co. of the W., 438 F.3d 813, 819 (7th Cir. 2006) (citation 

omitted) (internal quotation marks omitted). 

 Lead Plaintiff argues that the Court committed a clear error by failing to provide Lead 

Plaintiff with the benefit of the plausible inference that Carmichael acted with scienter because 

he knew of the Consumer Financial Protection Bureau (“CFPB”) investigation and the 

unauthorized accounts and predatory consumer practices at Fifth Third by the time the Class 

Period began. In deciding Defendants’ motion to dismiss, the Court considered Lead Plaintiff’s 

allegations concerning the notice provided to Carmichael by the CFPB’s civil investigation 

demands (“CIDs”). Taking into account all the allegations related to the CIDs, the Court 

determined that “[i]nstead of alleging knowledge of the omitted facts, however, all that the 

allegations concerning the CIDs demonstrate at this stage is that Carmichael knew of the 

investigation, not necessarily of the problem itself.” Doc. 66 at 29. Lead Plaintiff now argues 

that, in reaching this conclusion, the Court failed to account for the allegations in the 

consolidated complaint that described the specific sales practices that the CFPB indicated it was 

investigating in the CIDs. But the Court’s opinion disproves this argument; the Court 

specifically acknowledged these allegedly overlooked allegations just two sentences before 

reaching its conclusion that such allegations did not suffice to suggest that Carmichael knew of 

the problem itself. See id. (“According to Lead Plaintiff, these demands apprised Carmichael of 

the CFPB’s investigation into specific allegedly problematic sales practices at Fifth Third, 

namely that employees were opening unauthorized accounts.”). Although Lead Plaintiff 

disagrees with the Court’s reasoning and argues that the case on which it relied, Higginbotham v. 

Baxter International, Inc., 495 F.3d 753, 758 (7th Cir. 2007), is distinguishable, such arguments 

are not proper subjects of reconsideration. See Caisse Nationale de Credit Agricole v. CBI 

Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (“Reconsideration is not an appropriate forum 

for rehashing previously rejected arguments or arguing matters that could have been heard 

during the pendency of the previous motion.”); Bank of Waunakee, 906 F.2d at 1191 

(reconsideration proper where a court has “made an error not of reasoning, but of apprehension” 

(emphasis added) (citation omitted)). 

 Therefore, the Court denies Lead Plaintiff’s motion for reconsideration. The Court 

expresses no opinion on whether Lead Plaintiff can satisfy the pleading requirements of the 

PSLRA in an amended complaint. The Court gives Lead Plaintiff until October 8, 2021 to file 

such an amended complaint, in which Lead Plaintiff can expand on the allegations it emphasizes 

in this motion for reconsideration. 

 

Date: September 7, 2021 /s/_Sara L. Ellis________________ 

 Sara L. Ellis 

 United States District Judge 

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