Orgone Capital III, LLC v. Keith Daubenspeck

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1815

ORGONE CAPITAL III, LLC, et al.,

Plaintiffs-Appellants,

v.

KEITH DAUBENSPECK, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-10849 — Rebecca R. Pallmeyer, Judge.

____________________

ARGUED SEPTEMBER 24, 2018 — DECIDED JANUARY 7, 2019

____________________

Before WOOD, Chief Judge, and EASTERBROOK and

BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. Hype and reality can be at odds.

This contrast arises often in postmortems on once-fashiona-

ble, now-failed investment securities. Hype can raise inves-

tors’ hopes and, in turn, capital contributions. But when hype

accelerates an investment’s market value beyond its actual

worth, a financial bubble is formed.

2 No. 18-1815

Fisker Automotive, Inc. was such a bubble, bursting in

2013. Plaintiffs, all purchasers of Fisker securities between

2009 and 2012, assert various claims against defendants, each

of whom played roles in Fisker’s early-stage financing, for

allegedly misleading investors regarding Fisker’s intrinsic

value and imminent collapse. 1 Illinois law provides remedies

when securities are sold by means of deceptive and fraudu-

lent practices. But like any civil action, such claims must be

timely filed. Our review does not explore the cause of or the

defendants’ alleged roles in Fisker’s failure. Rather, we decide

whether plaintiffs’ claims fall within the Illinois securities

laws, and if so whether their claims are time-barred by

Illinois’s three-year statute of limitations for securities-based

claims.

I

A

In 2008, Fisker, a manufacturer of luxury hybrid electric

cars, began attracting substantial financing as part of a trend

in venture capital investments toward green energy technol-

ogy start-ups. Investor enthusiasm was spurred by a $528.7

million loan to Fisker from the U.S. Department of Energy,

which offered direct financial support to manufacturers of

clean energy vehicles and components. Under the loan’s

terms, the Energy Department advanced Fisker $192 million.

1Plaintiffs-appellants are Orgone Capital III, LLC, David Burnidge,

Lincolnshire Fisker, LLC, Kenneth A. Steele, Jr., and Robert F. Steel, and

defendants-appellees are Fisker director Keith Daubenspeck, Fisker’s

venture capital patron Kleiner Perkins Caufield & Byers, Kleiner Perkins’s

managing partners Ray Lane and John Doerr, and Fisker’s lead invest-

ment banker Peter McDonnell.

No. 18-1815 3

The venture capital firm Kleiner Perkins Caufield & Byers, a

defendant here and a controlling shareholder of Fisker,

assisted with negotiating and securing the loan to Fisker.

Plaintiffs characterize Kleiner Perkins as “politically-con-

nected” and a “pioneering titan” of Silicon Valley’s venture

capital industry, known for its “hugely successful early back-

ing of companies.”

Support from the federal government and Kleiner Perkins

were not the only factors sparking investor interest. Celebri-

ties including tech-industry rainmakers and A-list movie

stars invested in Fisker’s future. Media outlets from Wall

Street to Hollywood reported on these luminaries’ investment

in and association with Fisker. Further fueling the excitement

was Fisker’s public competition with another emerging

player in the electric vehicle market, Tesla, Inc.

In 2009, before sales began on its first generation of vehi-

cles, Fisker announced that beginning in 2012 or 2013 its

second generation of vehicles would be built in Delaware.

Delaware agreed to chip in $21.5 million in state subsidies and

Vice President Joe Biden and Delaware Governor Jack

Markell participated in Fisker’s media unveiling of this

economic collaboration. Riding this wave of publicity and

contributions, Fisker secured funding from additional

venture capital firms and high net worth investors. These

investors included the five plaintiffs at bar, who collectively

purchased over $10 million in Fisker securities. By 2011, insti-

tutional and individual investors had poured $1.1 billion into

Fisker, betting on its revenue potential and sustainability

values.

Fisker’s rise was rapid and highly publicized. So was its

fall. In late 2011, Fisker began selling its flagship automobile.

4 No. 18-1815

By August 2012, it stopped all manufacturing operations to

preserve cash, and in April 2013, Fisker laid off 75% of its re-

maining workforce. That same month, the U.S. Government

seized $21 million in cash from Fisker to fulfill its first loan

payment. In September 2013, the Energy Department put

Fisker’s remaining unpaid loan amount (approximately $168

million) out to bid at a public auction. In November 2013,

Fisker filed for bankruptcy protection. The bubble had burst,

and lawsuits followed.

B

On October 14, 2016, these plaintiffs filed a class action

complaint against the defendants alleging fraud, fraudulent

concealment of material information, breach of fiduciary

duty, and negligent misrepresentation in connection with

their purchases of Fisker securities. In the complaint, plain-

tiffs referenced a report released on April 17, 2013, by a

private research firm, PrivCo, entitled “FISKER

AUTOMOTIVE’S ROAD TO RUIN: How a ‘Billion-Dollar

Startup Became a Billion-Dollar Disaster’.” A press release

accompanying this PrivCo Report opined Fisker may go

down as “the most tragic venture capital-backed debacle in

recent history” due to “[t]he sheer scale of investment capital

and government loan money.” The PrivCo Report claimed

this money and capital was “squandered so rapidly and with

so little to show for it that the wreckage is breathtaking.”

According to plaintiffs, the PrivCo Report was supported by

over 11,000 pages of documents exposing Fisker’s imminent

bankruptcy and malfeasant management. The PrivCo Report

also highlighted production and financial data plaintiffs claim

defendants concealed.

No. 18-1815 5

Plaintiffs’ original complaint also describes several

congressional hearings held in April 2013, one week after the

PrivCo Report was published. Those hearings included testi-

mony from both government and Fisker officials as part of a

congressional investigation of Fisker’s impending failure and

the loss of $192 million in taxpayer funds.

The complaint details how the PrivCo Report and congres-

sional hearings “brought to light” and “revealed the defend-

ants’ alleged wrongdoings. Plaintiffs pleaded “[t]he investi-

gations by PrivCo and Congress revealed fraud and breach of

fiduciary duties by, among others, [the defendants], in

connection with [d]efendants’ scheme to induce [p]laintiffs

and the Class to purchase Fisker Automotive Securities while

concealing from them material adverse information.” Plain-

tiffs also alleged that confidential documents disclosed by

PrivCo and Congress “revealed” the defendants “knew, but

failed to disclose to plaintiffs and the Class, material infor-

mation” concerning Fisker’s production delays. Quoting the

PrivCo Report, plaintiffs claim defendants “kept Fisker’s

troubles secret” and concealed Fisker’s cash crisis and

mismanagement while attracting new investors. Plaintiffs

alleged that defendants secured over $800 million through

fraud by disseminating materially false and misleading infor-

mation to rescue Kleiner Perkins from its “bad bet” on Fisker.

Defendants moved to dismiss plaintiffs’ complaint as

barred by Illinois’s three-year statute of limitations, 815 ILL.

COMP. STAT. 5/13(D), for securities-based claims. Defendants

argued the notices provided by PrivCo and Congress

occurred in April 2013, but plaintiffs waited more than three

years to file their complaint in October 2016. The district court

6 No. 18-1815

agreed and granted defendants’ motion based upon plain-

tiffs’ “straightforward factual disclosures” regarding the

PrivCo Report and at the congressional hearings. To the

district court, these disclosures demonstrated plaintiffs must

at a minimum have known facts that, in the exercise of

reasonable diligence, would have led to actual knowledge of

their claims.

Although the district court dismissed plaintiffs’ complaint

as untimely, plaintiffs were granted leave to amend if they

wished “to expressly contradict the court’s conclusion about

the dates that they learned of the facts that would lead them

to their claims.”

C

Plaintiffs accepted the district court’s invitation and

amended their complaint in three ways. First, they deleted all

references to the PrivCo Report and congressional hearings.

Second, they asserted Delaware rather than Illinois law

controls this case under choice of law provisions within

certain Fisker securities purchase agreements. Third, they

claimed they first learned of the defendants’ purported

wrongdoing on December 27, 2013, after an action was

brought in Delaware by separate investor plaintiffs against

some of the same defendants here. 2

Defendants moved again for dismissal and judgment on

the pleadings under Federal Rule of Civil Procedure 12(b)(6)

and (c). They argued plaintiffs’ amended complaint suffers

from the same infirmities as the original and that the lawsuit

2 The Delaware plaintiffs raised the same core allegations as the plain-

tiffs here, relied on the same information derived from the PrivCo Report

and congressional hearings, and were represented by the same counsel.

No. 18-1815 7

remains time-barred. The district court agreed, and

concluded that plaintiffs’ claims came under Illinois law,

regardless of plaintiffs’ contention that Delaware law should

apply.

The district court also ruled that plaintiffs’ amended

complaint failed to cure the fundamental problem with their

original complaint, which affirmatively pleaded plaintiffs

had notice of their claims in April 2013. After the first dismis-

sal, the court gave plaintiffs leave to amend to “expressly

contradict” its finding that plaintiffs learned of facts in April

2013 that would lead them to their claims. But rather than

rebut the court’s finding, plaintiffs just deleted all references

to the PrivCo Report or congressional hearings from their

amended complaint. Because this information was not contra-

dicted in the amended complaint, the court reaffirmed its

previous conclusion that Illinois’s three-year statute of limita-

tions for securities law claims barred plaintiffs’ action, and

dismissed plaintiffs’ complaint with prejudice.

II

We review de novo a district court’s order granting a Rule

12(b)(6) motion to dismiss based on the statute of limitations.

Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934

(7th Cir. 2012). We similarly review de novo a district court’s

grant of judgment under Rule 12(c). Milwaukee Police Ass'n v.

Flynn, 863 F.3d 636, 640 (7th Cir. 2017); see also Brooks v. Ross,

578 F.3d 574, 579 (7th Cir. 2009) (noting that practical effect of

addressing a statute of limitations defense in Rule 12(c)

motion is same as addressing it in Rule 12(b)(6) motion).

Where a plaintiff alleges facts sufficient to establish a

statute of limitations defense, the district court may dismiss

8 No. 18-1815

the complaint on that ground. O'Gorman v. City of Chicago,

777 F.3d 885, 889 (7th Cir. 2015); Whirlpool Fin. Corp. v. GN

Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995) (“[I]n the context

of securities litigation, if a plaintiff pleads facts that show its

suit [is] barred by a statute of limitations, it may plead itself

out of court under a Rule 12(b)(6) analysis.”). In performing

our review, we take the plaintiffs’ factual allegations as true

and give them the benefit of all reasonable inferences. Whirl-

pool Fin. Corp., 67 F.3d at 608. We may also take judicial notice

of matters of public record and consider documents

incorporated by reference in the pleadings. Milwaukee

Police Ass’n, 863 F.3d at 640.

The district court dismissed plaintiffs’ claims as precluded

by Illinois securities law’s three-year statute of limitations. On

appeal, we decide whether that limitations period applies,

and if so, whether it has expired.

A

A district court exercising diversity jurisdiction applies

the statute of limitations of the forum state, Klein v. George G.

Kerasotes Corp., 500 F.3d 669, 671 (7th Cir. 2007), in this case

Illinois.

Plaintiffs argue otherwise. Despite bringing securities-

based claims, they contend the Illinois securities laws do not

govern their lawsuit. They argue choice of law provisions

contained in some (but not all) of the Fisker securities

purchase agreements they executed required them to pursue

their claims under Delaware law. Plaintiffs posit that because

they are precluded from any remedies under the Illinois

securities law, they cannot be subject to its three-year statute

of limitations, and thus that their lawsuit must be governed

No. 18-1815 9

by Illinois’s five-year statute of limitations for “civil actions

not otherwise provided for.” See 735 ILL. COMP. STAT.

5/13-205.

Plaintiffs’ argument is ambitious, but not supported by

law. As an initial matter, choice of law provisions did not bind

the plaintiffs. Nor do choice of law provisions automatically

foreclose the application of a forum state’s laws. Rather,

choice of law issues may be waived or forfeited by declining

to assert them in litigation. See McCoy v. Iberdrola Renewables,

Inc., 760 F.3d 674, 684 (7th Cir. 2014) (“The choice of law issue

may be waived … if a party fails to assert it.”); see also Vukadi-

novich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that

choice of law is “normally” waivable). Plaintiffs were likewise

free to waive the Delaware choice of law provisions they now

invoke. Further, the Illinois three-year statute of limitations

applies to all actions “brought for relief under [the Illinois

securities laws] or upon or because of any of the matters for

which relief is granted.” 815 ILL. COMP. STAT. 5/13(D). Thus,

“claims that do not directly invoke the [Illinois securities

laws] may still fall within its statute of limitations,” including

Delaware common law claims, like those plaintiffs assert.

Klein, 500 F.3d at 671 (citing Tregenza v. Lehman Brothers, Inc.,

678 N.E.2d 14, 15 (Ill. App. Ct. 1997)).

In Tregenza, an investor plaintiff raised the same types of

claims as plaintiffs here—common law causes of action for

breach of fiduciary duty, fraud, and negligent misrepresenta-

tion arising out of the purchase of securities. The Illinois Ap-

pellate Court affirmed the dismissal of the investor’s claims

and held that they triggered the three-year statute of limita-

tions because “[they] are reliant ‘upon … matters for which

10 No. 18-1815

relief is granted’ by the Securities Law.” Tregenza, 678 N.E.2d

at 15 (quoting 815 ILL. COMP. STAT. 5/13(D)).

We applied the same reasoning in Klein to conclude the

Illinois securities laws governed the plaintiff’s claims.

500 F.3d at 672–74 (affirming dismissal of plaintiff’s claims for

common law fraud, breach of fiduciary duty, and punitive

damages as untimely under the Illinois securities laws). 3 In

Klein, we held that whether a plaintiff’s claim amounts to an

action for relief under the Illinois securities law, or upon or

because of any of the matters for which relief is granted by the

securities law, depends on what acts are encompassed within

the securities law. Id. at 672; see also 815 ILL. COMP. STAT.

5/13(D); Allstate Ins. Co. v. Countrywide Fin. Corp., 824 F. Supp.

2d 1164, 1176 (C.D. Cal. 2011) (interpreting same Illinois stat-

ute) (“The Court need not look past the plain language of the

statute to conclude that the ‘matters for which relief is

granted’ refers to the conduct giving rise to a suit rather than

the procedural question of whether an [Illinois securities law]

suit is allowed in a particular case.”)

Illinois’s securities laws expressly prohibit the types of

misconduct alleged by plaintiffs and provide remedies there-

for. Plaintiffs claim defendants concealed material infor-

mation and made knowingly false statements regarding

Fisker’s operational and financial conditions in connection

with the sale of Fisker securities. Such conduct is prohibited

3Before 2013, the Illinois securities laws contained a five-year statute

of repose, which applied to any “action … brought for relief under this

Section or upon or because of any of the matters for which relief is granted

by this Section.” See 2013 Ill. Legis. Serv. P.A. 98–174 § 13(D) (West). In

deciding whether the former statute of repose applied to the claims in

Klein, we interpreted the same statutes as here.

No. 18-1815 11

under Illinois securities laws sections 5/12(F) (prohibiting

fraud and deceit in connection with the sale of securities),

5/12(G) (prohibiting the sale of securities by means of untrue

or misleading statements), and 5/12(I) (prohibiting any

device, scheme or artifice to defraud in connection with the

sale of securities). See 815 ILL. COMP. STAT. 5/12. Section 13 of

this statute provides remedies for the conduct prohibited in

these statutes. Likewise, its three-year statute of limitations

expressly applies to their violation. So under Klein, plaintiffs

have pleaded acts encompassed within and governed by the

Illinois securities laws, which are governed by its limitation

period.

Plaintiffs contend that rather than Klein, Carpenter v. Exelon

Enterprises Co., LLC, 927 N.E.2d 768 (Ill. App. 1 Dist. 2010),

controls this case. Carpenter held that § 13 of the Illinois secu-

rities laws does not provide a remedy for common law claims

for breach of fiduciary duty brought by sellers of securities.

Id. at 774–77. Because the plaintiffs-sellers in Carpenter lacked

a remedy under the Illinois securities laws, the Illinois Appel-

late Court ruled that the three-year statute of limitations did

not govern their claims. Id. at 777. But where Carpenter and

Klein separate—whether the Illinois securities laws provide a

remedy for stock sellers—is of no value to plaintiffs. The lack

of an available remedy in Carpenter was due to the Carpenter

plaintiffs’ status as stock sellers. Here, plaintiffs sue as

purchasers of Fisker securities, not sellers. The Illinois securi-

ties laws expressly provide relief to securities purchasers. See

815 ILL. COMP. STAT. 5/13(A) (specifying that those who par-

ticipated or aided in selling a security in violation of the Illi-

nois securities laws are “joint and severally liable to the pur-

chaser,” including purchasers’ attorneys’ fees and expenses).

12 No. 18-1815

Plaintiffs’ position also suffers from forum shopping prob-

lems because the outcome they propose would reward a

stockholder who fails to bring suit in the appropriate state in

a timely manner. To address this problem, plaintiffs cite

Ferens v. John Deere Co. to show that forum shopping for a

more favorable statute of limitations is permissible. 494 U.S.

516, 531 (1990) (applying Mississippi’s six-year statute of

limitations to Pennsylvania claims after Pennsylvania’s two-

year tort limitations period had expired). But here, unlike in

Ferens, a more favorable statute of limitations law does not

exist. Plaintiffs concede that had they initiated their lawsuit in

Delaware under Delaware law, their claims would be subject

to a three-year statute of limitations. Likewise, had plaintiffs

initiated their lawsuit in Illinois under Illinois law, the same

three-year limit would be applied. Plaintiffs have offered no

authority to support their contention that by suing in Illinois

under Delaware law, parties get two additional years to sue.

Plaintiffs cannot avoid Illinois’s statute of limitations by

encasing their common law claims in a Delaware husk.

Because the Illinois securities law’s three-year limitations

period controls in this case, Illinois’s residual five-year statute

of limitations does not apply. See 735 ILL. COMP. STAT. 5/13-

205 (restricting five-year statute of limitations to “civil actions

not otherwise provided for”); see also Tregenza, 678 N.E.2d at

15 (holding that the plaintiff’s action “is a cause otherwise

provided for” under the Illinois securities law, and that five-

year limitations period in § 5/13-205 is inapplicable) (internal

quotations omitted). The remaining question is whether

plaintiffs’ lawsuit was timely filed.

No. 18-1815 13

B

Actions for relief under the Illinois securities laws must be

brought within three years from the date of a security’s sale.

815 ILL. COMP. STAT. 5/13(D). But if the party suing neither

knew nor in the exercise of reasonable diligence should have

known of any alleged violation of the Illinois securities law,

the three-year period to sue for Illinois securities law claims

begins to run the earlier of:

(1) the date upon which the party bringing the

action has actual knowledge of the alleged viola-

tion of this Act; or

(2) the date upon which the party bringing the

action has notice of facts which in the exercise of rea-

sonable diligence would lead to actual knowledge of

the alleged violation of this Act.

815 ILL. COMP. STAT. 5/13(D)(1)-(2) (emphases added).

Fisker securities were last sold to these plaintiffs in 2012.

Yet plaintiffs’ amended complaint avers they did not know of

facts concerning the defendants’ alleged violations until after

December 27, 2013, such that their October 14, 2016, original

complaint was timely filed. In its final dismissal order,

however, the district court found that the defendants’ alleged

fraud “was presented for the entire world to see no fewer than

three times before October 14, 2013.” Applying an “inquiry

notice” standard, the district court determined that PrivCo’s

and Congress’s April 2013 disclosures gave plaintiffs notice

of their potential claims. These findings were not rebutted,

and the district court concluded it was implausible that plain-

tiffs were first notified of facts leading to their claims later

than April 2013.

14 No. 18-1815

Plaintiffs challenge the district court’s application of

inquiry notice to dismiss their claims. They argue the first

clause of 815 ILL. COMP. STAT. 5/13(D)(2) regarding “notice of

facts” means “actual notice of facts,” not “inquiry notice.”

Plaintiffs note that “inquiry notice” does not appear in the

statute. But plaintiffs’ position encounters two problems.

First, although the text of § 5/13(D)(2) does not include the

phrase “inquiry notice,” it also does not include “actual

notice.” Plaintiffs ask us to supplant one omitted term for

another, which leads to the second problem: if we agreed with

plaintiffs’ proposed interpretation, what constitutes “actual

notice of facts” would be indistinguishable from “actual

knowledge,” the triggering event contained in § 5/13(D)(1).

Such a reading would render § 5/13(D)(1) redundant, which

violates the surplusage canon of statutory construction.

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 176

(2012).

In contrast, the inquiry notice standard is consistent with

§ 5/13(D) and the cases interpreting this statute. Cf. Tregenza

v. Great Am. Commc’ns Co., 12 F.3d 717, 718 (7th Cir. 1993)

(explaining that under “inquiry notice,” a statute of limita-

tions “begins to run when the victim of the alleged fraud

became aware of facts that would have led a reasonable per-

son to investigate whether he might have a claim”); Allstate

Ins. Co., 824 F. Supp. 2d at 1182 (holding § 5/13(D) “appears to

be very close to the California inquiry notice standard,” which

“requires only that a party be on notice that an injury was

‘caused by wrongdoing’ before the statute begins to run.”).

But here, we need not decide which notice standard

applies because plaintiffs’ suit is time-barred under the plain

language of § 5/13(D). Applying the text of § 5/13(D) to this

No. 18-1815 15

case, plaintiffs must show they did not have notice of facts

that, in the exercise of reasonable diligence, would lead to

actual knowledge of the defendants’ alleged violations on or

before October 14, 2013. They have failed to do so. Plaintiffs’

original complaint made more than fleeting references to the

April 2013 PrivCo Report and ensuing congressional

hearings. They repeatedly pleaded these publications

“brought to light” and “revealed” the facts forming the bases

of their lawsuit. The PrivCo Report’s writing was not subtle.

It characterized Fisker as “the most tragic venture capital-

backed debacle in recent history” and alluded to fraud and

breach of fiduciary duties as the cause of Fisker’s “breathtak-

ing wreckage.” The PrivCo Report and congressional

hearings did more than stir up the possibility of a legal action;

they provided plaintiffs a detailed litigation roadmap.

Red flags were not limited to disclosures by PrivCo and

Congress as provided in their original complaint. According

to plaintiffs’ amended complaint, in late 2011 “a scandal

erupted concerning Solyndra, another green energy start up

with DOE funding, and Fisker [] became a political issue

given its similar ties to DOE, becoming the subject of negative

stories on major news networks like ABC, CBS, and Fox, as

well as major newspapers.” The amended complaint contin-

ues that in early January 2012, Fisker executives notified

investors that “DOE refused to resume funding Fisker.” In

February 2012, media reported that Fisker’s “cash crunch”

resulted in forced layoffs, in addition to reporting on Fisker’s

scaled back sales projections and automobile recalls. The

same month, Fisker also informed its investors that it had

become “a political football” and that its negative press was

“a consequence of [] election year politics.” In August 2012,

Fisker’s leadership wrote to stockholders explaining that

16 No. 18-1815

Fisker “has been under a media microscope” and was “the

target of politically motivated PR attacks.”

“Scandals,” “negative stories,” “cash crunches,” product

recalls, layoffs, “PR attacks,” nationwide portrayal as a polit-

ical scapegoat, and cancellation of crucial federal funding—

all under the lens of a “media microscope”—are distressing

facts for any stockholder. All of these signals occurred before

April 2013 and were incorporated into plaintiffs’ amended

complaint.

Fisker was a sophisticated and speculative private equity

investment. Among plaintiffs, the lowest total investment

was over $350,000, and the highest over $7,500,000. Yet even

an unsophisticated investor should have realized between

late 2011 (when Fisker was correlated with Solyndra) and

April 2013 (following the release of the PrivCo Report) that

something was wrong. Even assuming plaintiffs shut them-

selves off from media, a simple internet search of “Fisker” to

check on the status of their investment—as any reasonable

investor would do—would have revealed these troubling

facts. Plaintiffs counter that defendants were especially

sophisticated and employed significant resources to conceal

Fisker’s problems. The ominous facts plaintiffs detail in their

amended complaint undercut this assertion. Even if plausible,

plaintiffs’ assertion expired once PrivCo and Congress

presented Fisker’s flaws to the public. Defendants could no

longer conceal wrongdoings because, as plaintiffs expressly

concede, PrivCo and Congress “revealed” and “brought to

light” such wrongdoings as early as April 2013.

Finally, plaintiffs contend the district court improperly

construed allegations in their superseded original complaint

as judicial admissions. See 188 LLC v. Trinity Indus., Inc., 300

No. 18-1815 17

F.3d 730, 736 (7th Cir. 2002) (“When a party has amended a

pleading, allegations and statements in earlier pleadings are

not considered judicial admissions.”). Plaintiffs insist that

allegations in a superseded complaint—here, references to the

PrivCo Report and congressional hearings—should be

ignored.

An amended pleading does not operate as a judicial tabula

rasa. “Under some circumstances, a party may offer earlier

versions of its opponent's pleadings as evidence of the facts

therein.” Id. In response, “the amending party may offer evi-

dence to rebut its superseded allegations.” Id. Consistent with

this process, the district court granted plaintiffs leave to

amend to rebut facts that they pleaded in their original com-

plaint showing their awareness of the defendants’ alleged

securities violations more than three years before filing. The

court provided plaintiffs the opportunity to expressly contra-

dict the court’s finding about when they learned of facts that

would lead them to their claims. Rather than contradict those

facts, plaintiffs simply deleted any references to them. A

district court is not required to ignore its prior decision, or its

findings supporting a dismissal and grant of leave to amend,

where, as here, the findings are based upon undisputed

public information plaintiffs themselves brought before the

district court.

A district court may judicially notice a fact that is not sub-

ject to reasonable dispute because it: (1) “is generally known

within the trial court's territorial jurisdiction;” or (2) “can be

accurately and readily determined from sources whose accu-

racy cannot reasonably be questioned.” FED. R. EVID. 201(b);

see also General Electric Capital Corp. v. Lease Resolution Corp.,

128 F.3d 1074, 1081 (7th Cir. 1997) (holding same). Here, the

18 No. 18-1815

district court considered the original complaint, as well as its

2017 opinion inviting plaintiffs to rebut their allegations of

notice triggering the Illinois securities limitations period. “[I]f

the finding taken from the prior proceeding is ‘not subject to

reasonable dispute,’ then the court has satisfied the eviden-

tiary criteria for judicial notice.” General Elec. Capital Corp., 128

F.3d at 1082; see also Watkins v. United States, 854 F.3d 947, 950

(7th Cir. 2017) (“Absent a claim that there is a plausible, good-

faith basis to challenge the legitimacy of [a prior complaint],”

the court is entitled to take judicial notice of a complaint and

its contents). That the PrivCo report exists, the Congressional

hearings transpired, and plaintiffs pleaded both facts in their

original complaint is beyond “reasonable dispute.” Accord-

ingly, the district court permissibly considered these findings

in its second and final dismissal of the plaintiffs’ lawsuit.

III

Plaintiffs’ case concerns matters for which the Illinois

securities laws grant relief, and therefore falls within its three-

year statute of limitations. Plaintiffs’ claims against the

defendants accrued no later than April 2013, but they filed

their complaint in October 2016. Because plaintiffs failed to

bring this action within three years from the date their claims

accrued, their lawsuit was untimely filed and appropriately

dismissed.

AFFIRMED.