092960P.pdf   08/20/2010  Marlin Lustgraaf  v.  Bryan Behrens
   U.S. Court of Appeals Case No:  09-2960
                          and No:  09-2963
                          and No:  09-2965
                          and No:  09-2969
                          and No:  09-3349
                          and No:  09-3352
                          and No:  09-3355
                          and No:  09-3356
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Melloy, Author, with Loken and Bright, Circuit Judges]
   Civil case - Securities. In action against defendants for control-person
   liability under Sec. 20(a) of the Securities Exchange Act of 1934, the
   complaints alleged with sufficient particularity the presence of a primary
   violation; the district court erred in dismissing the claims against
   defendant Sunset as it effectively provided defendant Behrens access to
   the markets and had the duty to monitor his activities; under the circuit's
   case law, without further allegations that defendant KCL actually
   exercised control of Behrens's general operations, control-person liability
   could not be extended to KCL; no error in denying plaintiffs' motion to
   file a second amended complaint as it failed to cure the defect in their
   case; considering the issue of control-person liability under state law, the
   Nebraska, Iowa and Arizona statutes all permit liability against a broker-
   dealer based on direct or indirect control of the primary violator, and
   none of the statutes require plaintiff to always prove material aid;
   considering the facts alleged regarding control-person liability under state
   law, the plaintiffs have made a sufficient showing to overcome defendant
   Sunset's motion to dismiss; however, defendant KCL is simply to far
   removed from the transactions to be liable under a state control-person
   theory; complaint failed to state a common law claim for liability based
   on apparent authority; district court did not err in dismissing claims based
   on respondeat superior. Please consult the opinion for further details.