Docket No. 06-0784-cv.

489 F.3d 499 (2007)

Andrew E. ROTH, derivatively on behalf of Metal Management, Inc., Plaintiff-Appellant, v. T. Benjamin JENNINGS, European Metal Recycling, Ltd., and Metal Management, Inc., Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided: June 6, 2007.

Attorney(s) appearing for the Case

Paul D. Wexler, New York, N.Y. (Bragar Wexler & Eagel, New York, NY, Ostrager Chong Flaherty & Broitman, New York, NY, on the brief), for Plaintiff-Appellant.

Allan T. Slagel, Chicago, IL (Heather A. Jackson, Shefsky & Froelich, Chicago, IL, John J. Clarke, Jr., DLA Piper Rudnick Gray Cary, New York, NY, on the brief), for Defendant-Appellee Jennings.

Thomas E. Lynch, New York, N.Y. (Steven C. Bennett, Jones Day, New York, NY, on the brief), for Defendant-Appellee European Metal Recycling, Ltd.

Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiff Andrew E. Roth, suing derivatively on behalf of nominal defendant Metal Management, Inc. ("MMI" or "Metal Management"), for disgorgement to MMI of "short-swing profits" under § 16(b) of the Securities Exchange Act of 1934 ("Exchange Act" or "Act"), 15 U.S.C. § 78p (b), appeals from a final judgment of the United States District Court for the Southern District of New York, Deborah...


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