Avenue CLO Fund, Ltd. et al v. Bank of America, N.A., et al

Filing 79

CERTIFIED REMAND ORDER. MDL No. 2106. Signed by MDL (FLSD) on 1/14/14. (Attachments: # 1 Transmittal from FLSD, # 2 1 09-md-02106 Designation of Record, # 3 1 09-md-02106 Dkt. Sheet - flsd, # 4 09-MD-2106 DE 1, 2, 4-30, # 5 0 9-MD-2106 DE 32-36, # 6 09-MD-2106 DE 37 part 1 of 3, # 7 09-MD-2106 DE 37 part 2 of 3, # 8 09-MD-2106 DE 37 part 3 of 3, # 9 09-MD-2106 DE 38, 39, 41-47, 49, 50, # 10 09-MD-2106 DE 51, # 11 09-MD-2106 DE 52-59, 61-65, 68, 70, 72-76, # (1 2) 09-MD-2106 DE 78-84, 86-91, # 13 09-MD-2106 DE 93, 95-103, 106-108, # 14 09-MD-2106 DE 110-115, # 15 09-MD-2106 DE 116-125, 127-129, 132-134, # 16 09-MD-2106 DE 136-140, 142-158, # 17 09-MD-2106 DE 160-162, 164-167, 170-175, 177-190, # ( 18) 09-MD-2106 DE 191-199, 201-215, # 19 09-MD-2106 DE 217-229, 232-247, # 20 09-MD-2106 DE 248, # 21 09-MD-2106 DE 249 part 1 of 2, # 22 09-MD-2106 DE 249 part 2 of 2, # 23 09-MD-2106 DE 251-253, 262-266, 284-287, 300, 301, 310, 319, 326-3 31, # 24 09-MD-2106 DE 335, 336, 338-344, 346-349, # 25 09-MD-2106 DE 350, # 26 09-MD-2106 DE 351-358, # 27 09-MD-2106 DE 360-366, 368-374, # 28 09-MD-2106 DE 375 part 1 of 3, # 29 09-MD-2106 DE 375 part 2 of 3, # 30 09-MD-2106 DE 375 p art 3 of 3, # 31 09-MD-2106 DE 376 part 1, # 32 09-MD-2106 DE 376 part 2, # 33 09-MD-2106 DE 376 part 3, # 34 09-MD-2106 DE 376 part 4, # 35 09-MD-2106 DE 376 part 5, # 36 09-MD-2106 DE 376 part 6, # 37 09-MD-2106 DE 376 part 7, # 38 09-MD-2106 DE 376 part 8, # 39 09-MD-2106 DE 376 part 9, # 40 09-MD-2106 DE 377 part 1, # 41 09-MD-2106 DE 377 part 2, # 42 09-MD-2106 DE 378, # 43 09-MD-2106 DE 379, # 44 09-MD-2106 DE 380, # 45 09-MD-2106 DE 381 part 1, # 46 09-MD-2 106 DE 381 part 2, # 47 09-MD-2106 DE 382 part 1, # 48 09-MD-2106 DE 382 part 2, # 49 09-MD-2106 DE 382 part 3, # 50 09-MD-2106 DE 382 part 4, # 51 09-MD-2106 DE 383 part 1, # 52 09-MD-2106 DE 383 part 2, # 53 09-MD-2106 DE 383 part 3, # 54 09-MD-2106 DE 383 part 4, # 55 09-MD-2106 DE 383 part 5, # 56 09-MD-2106 DE 383 part 6, # 57 09-MD-2106 DE 383 part 7, # 58 09-MD-2106 DE 383 part 8, # 59 09-MD-2106 DE 383 part 9, # 60 09-MD-2106 DE 383 part 10, # 61 09-MD-2106 DE 383 part 11, # 62 09-MD-2106 DE 384 part 1, # 63 09-MD-2106 DE 384 part 2, # 64 09-MD-2106 DE 384 part 3, # 65 09-MD-2106 DE 384 part 4, # 66 09-MD-2106 DE 384 part 5, # 67 09-MD-2106 DE 384 part 6, # 68 09-MD-2106 DE 384 part 7, # ( 69) 09-MD-2106 DE 384 part 8, # 70 09-MD-2106 DE 384 part 9, # 71 09-MD-2106 DE 384 part 10, # 72 09-MD-2106 DE 384 part 11, # 73 09-MD-2106 DE 385 part 1, # 74 09-MD-2106 DE 385 part 2, # 75 09-MD-2106 DE 386 part 1, # 76 09-MD-2106 DE 386 part 2, # 77 09-MD-2106 DE 386 part 3, # 78 09-MD-2106 DE 386 part 4, # 79 09-MD-2106 DE 386 part 5, # 80 09-MD-2106 DE 386 part 6, # 81 09-MD-2106 DE 386 part 7, # 82 09-MD-2106 DE 387 part 1, # 83 09-MD-2106 DE 387 part 2, # 84 09-MD-2106 DE 388, # 85 09-MD-2106 DE 389 part 1, # 86 09-MD-2106 DE 389 part 2, # 87 09-MD-2106 DE 389 part 3, # 88 09-MD-2106 DE 389 part 4, # 89 09-MD-2106 DE 390, 392-394, # 90 1 10-cv-20236 Dkt. Sheet - flsd, # 91 10cv20236 DE #1-27, 29-31, 45, 53, 60-65, 67-70, 73, # 92 1 09-cv-23835 Dkt. Sheet - flsd, # 93 09cv23835 DE 112, 115-126, # 94 09cv23835 DE 130, 134, 135 and 145)(Copies have been distributed pursuant to the NEF - MMM)

Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 1 of 26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to Case Nos:
09-CV-23835-ASG
10-CV-20236-ASG.

JOINT OPPOSITION TO DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO
DISMISS THE TERM LENDERS’ DISBURSEMENT AGREEMENT CLAIMS

Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 2 of 26

TABLE OF CONTENTS
Page Nos.
I.

PRELIMINARY STATEMENT ................................................................................. 1

II.

BACKGROUND ......................................................................................................... 3
A.
B.

BofA’s Obligations under the Disbursement Agreement ................................ 4

C.
III.

The Funding and Disbursement Process.......................................................... 3

BofA’s Breaches of the Disbursement Agreement .......................................... 6

ARGUMENT ............................................................................................................... 9
A.

The Term Lenders Have Stated Claims for Breach of the
Disbursement Agreement .............................................................................. 10
1.

BofA Breached the Disbursement Agreement When It
Failed to Issue Stop Funding Notices and Disbursed Funds
under Circumstances Where It Knew that Defaults Had
Occurred and Conditions Precedent to Disbursement Had
Not Been Met ..................................................................................... 10

2.

BofA Breaches Are Not Excused by Borrower Certificates
that BofA Knew To Be Materially Incorrect ..................................... 10
a)
b)

B.

BofA’s position is contrary to the express terms of
the Disbursement Agreement................................................. 11
BofA’s position is contrary to settled New York
law.......................................................................................... 13

The Nevada Term Lenders Have Properly Alleged a Claim for
Breach of the Implied Covenant of Good Faith and Fair Dealing ................. 17
1.

2.

IV.

The Nevada Term Lenders’ Breach of Contract Claim Is
Alternative to, not Duplicative of, Their Breach of Implied
Covenant Claim ................................................................................. 17
The Nevada Term Lenders’ Implied Covenant Claim is
Not Inconsistent with the Express Terms of the
Disbursement Agreement .................................................................. 17

CONCLUSION.......................................................................................................... 20

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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 3 of 26

TABLE OF AUTHORITIES
Page No.(s)
Cases

511 W. 232nd Owners Corp. v. Jennifer Realty Co.,
98 N.Y.2d 144 (N.Y 2002) ....................................................................................................... 18
Apache Bohai Corp. LDC v. Texaco China BV,
No. 05-20413, 2007 U.S. App. LEXIS 4403 (5th Cir. Feb. 27, 2007) ..................................... 16
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ................................................................................................................ 8
Bank Brussels Lambert v. Chase Manhattan Bank, N.A.,
No. 93 Civ. 5298 (LMM), 1996 U.S. Dist. LEXIS 15631 (S.D.N.Y. Oct. 17, 1996) .......... 14, 15
Baum v. County of Rockland,
337 F.Supp.2d 454 (S.D.N.Y. 2004) ........................................................................................ 11
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................... 8
Chase Manhattan Bank v. Motorola, Inc.,
184 F. Supp. 2d 384 (S.D.N.Y. 2002) ...................................................................................... 15
Coca-Cola Enters. v. Novelis Corp.,
No. 08-12214, 2008 U.S. App. LEXIS 22293 (11th Cir. 2008) ............................................... 10
Components Direct, Inc. v. European American Bank & Trust Co.,
175 A.D.2d 227 (N.Y. App. Div. 1991) ................................................................................... 18
Cont'l Cas. Co. v. State of N.Y. Mortgage Agency,
No. 94 Civ. 8408(KMW), 1998 WL 513054 (S.D.N.Y. Aug. 18, 1998) ................................. 15
County of Suffolk v. Long Island Lighting Co.,
266 F.3d 131 (2d Cir. 2001) ..................................................................................................... 11
Cross & Cross Properties Ltd. v. Everett Allied Co.,
886 F.2d 497 (2d Cir. 1989) ..................................................................................................... 18
Curley v. AMR Corp.,
153 F.3d 5 (2d Cir. 1998) ......................................................................................................... 16
EBC I, Inc. v. Goldman Sachs & Co.,
5 N.Y.3d 11 (N.Y. 2005) .......................................................................................................... 17

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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 4 of 26

Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co.,
375 F.3d 168 (2d Cir. 2004) ..................................................................................................... 10
Fidata Trust Co. of New York v. Banker’s Trust Co.,
No. 87 Civ. 5025 (RO), 1990 U.S. Dist. LEXIS 2228 (S.D.N.Y. Mar. 2, 1990) ..................... 16
Galli v. Metz,
973 F.2d 145 (2d Cir. 1992) ..................................................................................................... 12
JPMorgan Chase Bank, N.A. v. IDW Group, LLC,
No. 08 Civ. 9116 (PGG), 2009 U.S. Dist. LEXIS 9207 (S.D.N.Y. Feb. 9, 2009) ................... 17
LaSalle Bank N.A. v. Citicorp Real Estate,
No. 01 Civ. 4389 (AGS), 2002 U.S. Dist. LEXIS 23323 (S.D.N.Y. Dec. 4, 2002) ................. 13
Manicini Enters. v. Am. Express Co.,
236 F.R.D. 695 (S.D. Fla. 2006) ................................................................................................. 9
Merrill Lynch & Co. v. Allegheny Energy, Inc.,
500 F.3d 171 (2d Cir. 2007) ..................................................................................................... 13
Muzak Corp. v. Hotel Taft Corp.,
1 N.Y.2d 42 (N.Y. 1956) .......................................................................................................... 11
Prestige Rests. & Entm’t, Inc. v. Bayside Seafood Rest., Inc.,
No. 09-23128-CIV-GOLD/MCALILEY, 2010 U.S. Dist. LEXIS 15535 (S.D. Fla. Feb. 22,
2010) ........................................................................................................................................... 9
Rocon Mfg., Inc. v. Ferraro,
605 N.Y.S.2d 591 (N.Y. App. Div. 1993) ................................................................................ 11
Smith v. CPC Int’l, Inc.,
177 F.3d 110 (2d Cir. 1999) ..................................................................................................... 18
Sommer v. Federal Signal Corp.,
79 N.Y.2d 540 (N.Y. 1992) ...................................................................................................... 16
Stanfield Offshore Leveraged Assets, Ltd v. Metro Life Ins. Co.,
883 N.Y.S.2d 486 (N.Y. App. Div. 2009) ................................................................................ 14
Terwilliger v. Terwilliger,
206 F.3d 240 (2d Cir. 2000) ..................................................................................................... 11
UniCredito Italiano SpA v. JPMorgan Chase Bank,
288 F. Supp. 2d 485 (S.D.N.Y. 2003) ...................................................................................... 14
United States ex rel. Bayer Clothing Group, Inc. v. Tropical Shipping & Constr. Co.,
No. 3:06-cv-42-J-33TEM, 2006 U.S. Dist. LEXIS 70671 (M.D. Fla. Sept. 26, 2006) .............. 9

-iii-

Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 5 of 26

United Techs. Corp. v. Mazer,
556 F.3d 1260 (11th Cir. 2009) ................................................................................................ 17
Vermont Teddy Bear Co. v. 538 Madison Realty Co.,
1 N.Y.3d 470 (N.Y. 2004) ........................................................................................................ 15
Watts v. Fla. Int’l. Univ.,
495 F.3d 1289 (11th Cir. 2007) .................................................................................................. 9
Other Authorities

Restatement 2d of Contracts, § 205 .............................................................................................. 18
Rules

Fed. R. Civ. P. 8(d) ....................................................................................................................... 17
Fed. R. Civ. P. 9(b) ......................................................................................................................... 7

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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 6 of 26

Plaintiffs in Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., No. 09-cv23835-ASG (the “Avenue Complaint”) and ACP Master, Ltd., et al. v. Bank of America, N.A., et
al., No. 10-cv-20236-ASG (the “Aurelius Complaint”) jointly oppose Bank of America N.A.’s
Motion to Dismiss the Term Lenders’ Disbursement Agreement Claims as follows:

I.

PRELIMINARY STATEMENT
Plaintiffs are Term Lenders under a credit facility for the financing of the construction of

the Fontainebleau Resort and Casino in Las Vegas. The facility was governed primarily by two
agreements. The Credit Agreement established the circumstances under which the Lenders were
required to deposit loan proceeds into a holding account, known as the Bank Proceeds Account.
The Disbursement Agreement established the conditions under which the Borrower could access
those proceeds. Bank of America, N.A. (“BofA”) was the Disbursement Agent under the
Disbursement Agreement. This motion involves the Term Lenders’ claims against BofA for its
wrongful disbursement of loan proceeds to the Borrowers.
As Disbursement Agent, BofA functioned as the gatekeeper on behalf of all Lenders,
responsible for ensuring that loan proceeds under the Credit Facility remained safely in the Bank
Proceeds Account unless and until all conditions precedent to disbursement were satisfied. BofA
was the last line of defense against the Borrower’s improper withdrawal of those proceeds.
BofA failed the Term Lenders. As the Project’s financial condition deteriorated, BofA
disbursed hundreds of millions of dollars of Term Lender Loans to the Borrower at times when
BofA knew of material defaults and failed conditions precedent that barred those disbursements.
BofA directly benefited from those improper disbursements by reducing its exposure on its own
Revolving Loans, and indirectly benefited by fostering its ongoing business relationship with the
Borrower and its principal indirect owner, Jeffrey Soffer.

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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 7 of 26

BofA does not dispute that the Term Lenders properly allege existing material defaults at
the time of these disbursements. But BofA asserts that it was nothing more than an
“administrative” paper-pusher, charged only with determining whether the certificates the
Borrower submitted in connection with Advance Requests were genuine and contained
representations stating that all conditions precedent to disbursement had been satisfied. If so,
says BofA, it blindly could rely upon the certificates to disburse funds. It had no obligation to
investigate further.
BofA misses the point. The Term Lenders do not argue that BofA failed to police the
Borrower’s filings. This is a case about BofA’s failure to act in light of known facts. BofA was
not privileged under the Disbursement Agreement to disburse funds in cavalier “reliance” on
false certificates when it knew of material defaults and failed conditions precedent to
disbursement that the Borrower had failed to disclose or acknowledge. This common sense
conclusion is supported by the express terms of the Disbursement Agreement or, alternatively,
by the implied covenant of good faith and fair dealing. It also is supported by applicable New
York law holding that a party may neither “rely” upon facts that it knows are materially incorrect
nor seek to contractually insulate itself from its own gross negligence and willful misconduct in
doing so.
Contracts must be construed according to their plain meaning and manifest purpose. The
purpose of the Disbursement Agreement was to ensure that Loan proceeds were not improperly
disbursed. That was BofA’s job. BofA was not hired to sit as the Three Wise Monkeys –
hearing, speaking and seeing no evil. It was hired to protect the Lenders. It did not.

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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 8 of 26

II.

BACKGROUND
Plaintiffs are lenders under a June 6, 2007 Credit Agreement that provided $1.85 billion

in bank financing to Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC
(together, the “Borrower”) for the development and construction of the Fontainebleau Resort and
Casino in Las Vegas, Nevada (the “Project”). The $1.85 billion bank financing included three
types of loan commitments: (a) a $700 million Initial Term Loan Facility; (b) a $350 million
Delay Draw Loan Facility (together with the Initial Term Loan, the “Term Loan Facilities”), and
(c) an $800 million Revolving Loan Facility. Plaintiffs are each lenders under the Term Loan
Facility (“Term Lenders”).
BofA served as Administrative Agent to all lenders under the Credit Agreement and as
Disbursement Agent for the benefit of all lenders under a related Master Disbursement
Agreement. BofA was also a Revolving Lender, an Issuing Lender, and the Swing Line Lender.
It was not a Term Lender. The Disbursement Agreement governed the disbursement of funds to
the Borrower under the Credit Agreement, the Second Lien Facility and the Retail Facility.
A.

The Funding and Disbursement Process

The Credit Agreement and the Disbursement Agreement created a two-step process for
the Borrower to obtain loan proceeds under the Delay Draw Loan Facility and the Revolving
Facility:
First: In order to obtain loans, the Borrower submitted a Notice of Borrowing to BofA
(as Administrative Agent) pursuant to the Credit Agreement. Upon notice from BofA, each
lender became obligated to make its pro-rata share of the requested loans available, subject only
to certain identified conditions precedent in the Credit Agreement. BofA then deposited the
proceeds of these loans into the Bank Proceeds Account.

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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 9 of 26

Second: In order to access funds from the Bank Proceeds Account, the Borrower
submitted an Advance Request to BofA (as Disbursement Agent) pursuant to the Disbursement
1

Agreement. If and when the conditions precedent to disbursement set forth in Section 3.3 of the
Disbursement Agreement were satisfied, BofA (as Disbursement Agent) then issued, together
2

with the Project Entities, an Advance Confirmation Notice, authorizing the advance of funds
3

from the Bank Proceeds Account to the Bank Funding Account. Upon the issuance of an
Advance Confirmation Notice, BofA as Disbursement Agent could then disburse funds to the
4

Borrower. If those conditions precedent were not satisfied, then BofA as Disbursement Agent
5

was obligated to issue a “Stop Funding Notice.” The issuance of a Stop Funding Notice not
only prohibited the disbursement of funds to the Borrower but also relieved the Lenders of any
obligation under the Credit Agreement to make Loans until the circumstances giving rise to the
6

Stop Funding Notice were resolved.

It is BofA’s breach of its gatekeeper obligations in connection with that second step
under the Disbursement Agreement that is at issue in this motion.
B.

BofA’s Obligations under the Disbursement Agreement

As Disbursement Agent, BofA assumed responsibility to all of the lenders under the
Credit Agreement, the Second Lien Facility and the Retail Facility to administer the construction

1

Disbursement Agreement (“D.A.”) § 2.4, attached as Ex. A to the Second Amended Avenue
Complaint.

2

The Project Entities are the Borrower and certain affiliates. Id. at Ex. A.

3

Id. at §§ 2.4.6, 2.6.1(b).

4

Id. at §§ 2.4.6, 2.6.2.

5

Id. at §§ 2.5.1, 2.5.2(a)(ii).

6

Credit Agreement (“C.A.”) § 2.4(e).
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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 10 of 26

loans and the disbursement of the loan proceeds to the Borrower. BofA agreed “to exercise
commercially prudent practices in the performance of its duties consistent with those of similar
institutions holding collateral, administering construction loans and disbursing disbursement
7

8

control funds.” BofA was paid for its work.

BofA had a duty to ensure that funds under the Credit Facility were disbursed only if all
of the conditions precedent to disbursement set forth in Section 3.3 of the Disbursement
9

Agreement were satisfied as of the date of the Advance. Those conditions included:


§ 3.3.2 – each representation and warranty of each Project Entity in Article 4 was true
and correct as if made on such date;



§ 3.3.3 – there was no Default or Event of Default under any of the Financing
Agreements;



§ 3.3.8 – the In Balance Test was satisfied;



§ 3.3.11 – there had been no development or event since the Closing Date that could
reasonably be expected to have a Material Adverse Effect on the Project;



§ 3.3.21 – BofA as Bank Agent was not aware of any material and adverse
information concerning the Project or the loan transactions; and



§ 3.3.23 – the Retail Agent and Retail Lenders under the Retail Facility had made all
Advances required of them under the Advance Request.

If any condition precedent were not satisfied, BofA could not approve an Advance
10

Request, could not issue an Advance Confirmation Notice, and therefore could not advance
money from the Bank Proceeds Account to the Bank Funding Account. To the contrary, BofA

7

D.A. § 9.1.

8

Id. at § 9.5.

9

Id. at §§ 2.4.6, 2.5.1, 2.5.2(a)(ii).

10

Id. at § 2.4.6.
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11

was required to issue a Stop Funding Notice.

Moreover, upon notice of a Default, BofA was

required to exercise all rights and powers vested in it by any of the loan documents with “the
same degree of care and skill . . . as a prudent person would exercise or use under the
12

circumstances in the reasonable administration of its own affairs.”

Specifically, upon issuance

of a Stop Funding Notice, BofA could not “withdraw, transfer or release any funds on deposit in
13

the Accounts,” including the Bank Proceeds Account.
C.

BofA’s Breaches of the Disbursement Agreement

BofA is liable under Section 9.10 of the Disbursement Agreement for any damages
resulting from its “bad faith, fraud, gross negligence or willful misconduct.” The Term Lenders
have alleged that BofA acted in bad faith, with gross negligence, and in willful disregard of its
obligations under the Disbursement Agreement when, beginning in September 2008, it approved
Advance Requests, executed Advance Confirmation Notices, failed to issue Stop Funding
Notices and disbursed Loan proceeds, all at times when it knew that Defaults had occurred and
14

that conditions precedent to disbursement had not been satisfied.

In particular, the Term Lenders have alleged the following defaults, each of which
resulted in the failure of one or more conditions precedent to BofA’s disbursement of funds:


Lehman Brothers Holdings, Inc. (“Lehman”), the Retail Agent and largest Retail
Lender (responsible for $215 million, of which $189.6 million was to be advanced
after closing), filed for bankruptcy in September 2008 and failed to honor at least four
Advances thereafter in breach of the Retail Facility Agreement and thereby defaulted
on its lending obligations under the Retail Facility Agreement (“Lehman Default”);

11

Id. at § 2.5.1(i).

12

Id. at § 9.2.3.

13

Id. at § 2.5.2(a)(ii).

14

Avenue Complaint ¶¶ 173-178; Aurelius Complaint ¶¶ 146-153.
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Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 12 of 26



First National Bank of Nevada, a Term Lender, went into receivership in July 2008
resulting in the repudiation of its commitment by the FDIC, and thereby defaulting
under the Credit Agreement (“Bank of Nevada Default”);



The Revolving Lenders failed to fund the March 3, 2009 Notice of Borrowing
(“Revolver Defaults”); and



Certain Delay Draw Term Lenders failed to fund the March 9, 2009 Notice of
Borrowing, which BofA was notified of by the Borrower on March 16, 2009 (“Delay
Draw Defaults”).

Each of these events constituted a Default under the Disbursement Agreement, and each
prevented satisfaction of the following conditions precedent:


§ 3.3.3 – no Defaults or Events of Defaults;



§ 3.3.2 – no incorrect representations and warranties by the Project Entities, including
representations regarding the absence of Defaults;



§ 3.3.11 – no Material Adverse Effects;



§ 3.3.21 – no material adverse information affecting the Project; and



§ 3.3.23 – no unpaid advances by any Retail Lender, including Lehman.

Each default, therefore, compelled BofA to issue a Stop Funding Notice and to refrain from any
disbursements until the default was cured.
BofA does not dispute those defaults in its Motion. Instead, BofA asserts (although not
an apparent basis for its Motion) that the Term Lenders “offer only vague allegations” that BofA
“knew” of these defaults and failed conditions precedent. As an initial matter, a party’s state of
mind, including knowledge, “may be pleaded generally,” even under the heightened pleading
15

standards of Rule 9(b) applicable to a fraud case, which this is not.

Under recent Supreme

Court decisions, a claim raising a defendants’ state of mind will not be dismissed unless the state

15

Fed. R. Civ. P. 9(b).
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16

of mind would not be “plausible” in light of the historical facts alleged.

It is hardly

“implausible” that BofA knew of the Lehman Bankruptcy (one of the most spectacular
bankruptcies in history), that it knew of the FDIC’s takeover of the Bank of Nevada, or that it
knew of its own defaults and the defaults of its fellow Revolving Lenders.
But the Term Lenders have done more than simply allege BofA’s knowledge generally.
They specifically have alleged that: (1) BofA knew of the Lehman Defaults beginning in
September 2008, and BofA was informed by at least one of the Term Lenders in September and
17

October of 2008 that those defaults meant that conditions precedent had failed; (2) BofA knew
of the Bank of Nevada Default beginning in at least January 2009 from the Borrower’s own
submissions, including the In Balance Reports that reduced the Revolving Loan Availability by
the amount of Bank of Nevada’s commitment, as evidenced by BofA’s own March 23, 2009
18

letter to all Lenders; (3) depending on BofA’s interpretation de jure of the meaning of “fully
drawn” under the Disbursement Agreement, it knew from its review of In Balance Reports from
the Borrowers (and highlighted in the same March 23, 2009 letter to all Lenders) as early as
August 2007 that the Borrowers had failed to meet the In Balance test required for
19

disbursement; (4) BofA knew in March 2009 from the Borrower and from certain of the Term
20

Lenders of the Revolver Defaults; (5) BofA knew in March 2009 from the Borrower and
certain of the Term Lenders (as reflected in its own March 23, 2009 letter) of the Delay Draw

16

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007).
17

Avenue Complaint ¶¶ 129-131, 138; Aurelius Complaint ¶¶ 98-99, 109-111.

18

Avenue Complaint ¶¶ 147, 138; Aurelius Complaint ¶¶ 117-118, 122-126.

19

Avenue Complaint ¶¶ 138, 147-150, 161, 163-164; Aurelius Complaint ¶¶ 61-63, 88-95.

20

Avenue Complaint ¶¶ 151, 155; Aurelius Complaint ¶¶ 64-65, 69.
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21

Defaults; and (6) BofA knew, as a result of its own position and that of the other Revolving
Lenders in refusing to fund the March 2 and 3 Advance Request, of material adverse changes to
22

the Project.

Even if it were the law that the Term Lenders were required to plead BofA’s
23

knowledge with specificity, those allegations more than suffice.

BofA provides no authority

for its contention that something more is required.

III.

ARGUMENT
BofA’s motion must be denied unless the court finds that the Term Lenders’ “factual
24

allegations [do not] raise a right to relief above the speculative level.”

In making that

determination, the court must “accept all the factual allegations in the complaint as true and
25

evaluate all inferences derived from those facts in the light most favorable” to the Plaintiffs.

In

particular, ambiguity in a contractual provision creates a question of fact, which “must be

21

Avenue Complaint ¶ 157; Aurelius Complaint ¶ 90.

22

Avenue Complaint ¶ 160.

23

Contrary to BofA’s unsupported assertion, the Term Lenders are not required to plead the
specific evidence or attach the specific documents detailing BofA’s knowledge. BofA Motion 910. See, e.g., Manicini Enters. v. Am. Express Co., 236 F.R.D. 695, 698 (S.D. Fla. 2006)
(document on which a plaintiff’s claim is based is not required to be attached to the complaint);
United States ex rel. Bayer Clothing Group, Inc. v. Tropical Shipping & Constr. Co., No. 3:06cv-42-J-33TEM, 2006 U.S. Dist. LEXIS 70671, at *25-26 (M.D. Fla. Sept. 26, 2006) (same).
Further, BofA’s argument that any notice it received in its capacity as Administrative Agent did
not provide it notice in its capacity as Disbursement Agent due to the “No Imputed Knowledge”
provision (§ 9.2.5) is misplaced. Plaintiffs have alleged that BofA, in all of its capacities, had
actual knowledge of the defaults and failed conditions precedent. Nothing more is required at
this stage.

24

Prestige Rests. & Entm’t, Inc. v. Bayside Seafood Rest., Inc., No. 09-23128-CIVGOLD/MCALILEY, 2010 U.S. Dist. LEXIS 15535, at *9 (S.D. Fla. Feb. 22, 2010) quoting
Watts v. Fla. Int’l. Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

25

Id.
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resolved in the plaintiffs’ favor” on a motion to dismiss.
A.

26

The Term Lenders Have Stated Claims for Breach of the Disbursement
Agreement
1.

BofA Breached the Disbursement Agreement When It Failed to Issue
Stop Funding Notices and Disbursed Funds under Circumstances
Where It Knew that Defaults Had Occurred and Conditions
Precedent to Disbursement Had Not Been Met

BofA knew of numerous defaults and failures of conditions precedent that, without the
need for any investigation or exercise of discretion, required it to issue Stop Funding Notices and
prohibited BofA from approving Advance Requests, from executing Advance Confirmation
27

Notices and from disbursing loan proceeds to the Borrower.

Under those circumstances, BofA

was required not only to exercise all rights and powers vested in it under the Disbursement
Agreement (including issuing a Stop Funding Notice), but also to “use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under the circumstances in
28

the reasonable administration of its own affairs.”

It did not. Instead, it failed to issue Stop

Funding Notices and continued to disburse funds in the face of those known defaults and failed
conditions precedent, all in breach of its express obligations under the Disbursement Agreement.
2.

BofA’s Breaches Are Not Excused by Borrower Certificates that BofA
Knew To Be Materially Incorrect

BofA asserts that Section 9.3.2 shields it from liability. Section 9.3.2 provides that the
Disbursement Agent “may rely” upon certificates provided by the Project Entities and “shall not
be required to conduct any independent investigation as to the accuracy, veracity or

26

Coca-Cola Enters. v. Novelis Corp., No. 08-12214, 2008 U.S. App. LEXIS 22293, at *4 (11th
Cir. 2008), citing Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168,
178 (2d Cir. 2004).

27

D.A. §§ 2.4.6, 2.5.1(i), 2.5.2(a)(ii), 3.3.

28

Id. at § 9.2.3.
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29

completeness” of any such certificate.

Assuming arguendo that BofA was entitled to rely in

good faith on certifications by the Project Entities if it lacked contrary knowledge, under the
express terms of the Disbursement Agreement and as a matter of law, BofA could not rely on
certifications it either knew or, but for its own gross negligence, bad faith or willful misconduct,
would have known, were materially incorrect.
a)

BofA’s position is contrary to the express terms of the
Disbursement Agreement

When interpreting a contract “the entire contract must be considered, and all parts of it
30

reconciled, if possible, in order to avoid an inconsistency.”

Where there is an inconsistency

between a specific provision and a more general or boilerplate provision, the specific provision
31

governs.

As demonstrated below, a reading of the entire Disbursement Agreement reveals that

the parties did not intend to bestow upon BofA the all-encompassing protections it now seeks to
extract from Section 9.3.2. The parties agreed upon specific mechanisms to ensure that BofA
could not disburse loan proceeds if it learned facts contrary to representations made in
certificates submitted by the Project Entities. BofA’s contention that it was permitted to ignore
all known, adverse information in determining whether it was authorized to disburse funds under
the Disbursement Agreement would impermissibly read these sections out of the Agreement.

29

BofA Motion 8, 12-13.

30

32

Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir. 2000).

31

Rocon Mfg., Inc. v. Ferraro, 605 N.Y.S.2d 591, 593 (N.Y. App. Div. 1993) citing Muzak Corp.
v. Hotel Taft Corp., 1 N.Y.2d 42, 46 (N.Y. 1956); see also County of Suffolk v. Long Island
Lighting Co., 266 F.3d 131,139 (2d Cir. 2001) (under New York law, specific provisions will
limit the meaning of general provisions whether or not there is a true conflict between the two
provisions).
32

“[I]t is a cardinal maxim of contract interpretation that an agreement should not be construed in
a manner that renders any provision meaningless….” Baum v. County of Rockland, 337
F.Supp.2d 454, 467 (S.D.N.Y. 2004), vacated in part on other grounds, 2005 U.S. Dist. LEXIS
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The clearest of those provisions is Section 7.1.3(c). It provides that it is an Event of
Default under the Disbursement Agreement if any representation, warranty or certification by
any of the Project Entities (including any Advance Request or other certificate submitted with
respect to this Agreement) is “found to have been incorrect.” Section 7.1.3(c) establishes that
BofA cannot simply ignore known, material inaccuracies in the Project Entities’ certificates. To
the contrary, if BofA “found” material inaccuracies in any Borrower certificate, it was placed on
notice of an Event of Default, which, as noted above, required it to issue a Stop Funding Notice
33

and prohibited it from further making disbursements.

Whether or not BofA was required to

look for inaccuracies, it certainly could not simply ignore those that it “found.”
Moreover, the parties did not limit the universe of information that prevented BofA from
disbursing funds merely to information that contradicted specific representations, warranties or
certifications made by the Project Entities. Instead, they expansively conditioned disbursement
on BofA’s lack of any awareness of any material, adverse information. Section 3.3.21 provides
the following Condition Precedent to Advances:
[T]he Bank Agent [BofA] shall not have become aware after the
date hereof of any information or other matter affecting any Loan
Party . . . the Project or the transactions contemplated hereby that
taken as a whole is inconsistent in a material and adverse manner
with the information or other matter disclosed to them concerning
such Persons and the Project, taken as a whole.
Section 3.3.21 establishes a bright-line prohibition on disbursements if BofA became aware of
“any information” concerning the Project or any of the Loan Parties (including the Project

8751 (S.D.N.Y. 2005); see also Galli v. Metz, 973 F.2d 145, 149 (2d Cir. 1992) (“an
interpretation of a contract that has ‘the effect of rendering at least one clause superfluous or
meaningless . . . is not preferred and will be avoided if possible.’”) quoting Garza v. Marine
Transp. Lines, Inc., 861 F.2d 23, 27 (2d Cir. 1988).
33

D.A. §§ 2.5.1, 2.5.2(a)(ii), 3.3.3, 9.2.3.
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Entities) that “taken as a whole” was “inconsistent in a material adverse manner” with other
information it had been provided, including any information in any certificates.
Finally, BofA agreed in Section 9.1 to “exercise commercially reasonable efforts and
utilize commercially prudent practices . . . consistent with those of similar institutions holding
collateral, administering construction loans and disbursing disbursement control funds.” To the
extent that BofA asserts that it is a “commercially prudent practice[]” to rely on certificates
notwithstanding actual knowledge to the contrary, that assertion – if not absurd on its face – is a
34

fact issue that is not appropriate for determination on a motion to dismiss.
b)

BofA’s position is contrary to settled New York law

BofA’s position not only misconstrues the Disbursement Agreement, it is contrary to
settled New York law.
First, as a general matter, indeed as a matter of definition, a party may not claim to “rely”
upon, i.e., act based upon the assumed truth of, facts that it knows are materially incorrect.
Cases uniformly reject a parties’ claim of reliance upon purported misrepresentations that it
knew (or should have known) to be false. In Merrill Lynch & Co. v. Allegheny Energy, Inc., the
Second Circuit reiterated the settled holding that a party “cannot demonstrate justifiable reliance
35

on representations it knew were false” or to which it was “knowingly blind.”

34

“The issues of whether [BofA’s] actions were prudent or whether they met customary
standards present questions of fact separate from the legal question of whether the actions were
permissible under” the Disbursement Agreement. LaSalle Bank N.A. v. Citicorp Real Estate,
No. 01 Civ. 4389 (AGS), 2002 U.S. Dist. LEXIS 23323, at *12 (S.D.N.Y. Dec. 4, 2002)
(denying seller lender’s motion to dismiss breach of contract claims based on the breach of its
representation that it used “prudent” practices in servicing the loan and met “customary
standards utilized by prudent” similar institutions).
35

500 F.3d 171, 182 (2d Cir. 2007) quoting Banque Franco-Hellinque de Commerce
International et Maratime, S.A. v. Orestes Christopides, 106 F.3d 22 (2d Cir. 1997) (holding
Guarantor could not have justifiably relied on false statements he had reason to know were
false).
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That same general principle has been applied specifically in the context of multi-party
36

loan agreements. In Bank Brussels Lambert v. Chase Manhattan Bank, N.A., the borrower
under a revolving credit facility filed for bankruptcy, and the lenders brought an action against
Chase, the agent bank, alleging that Chase breached the credit agreement by performing its
37

duties with negligence, gross negligence, willful misconduct and fraud.

Specifically, the

lenders alleged that Chase violated an express condition to funding when it issued a letter of
credit in purported reliance on documents from the borrower, including financial statements and
38

a certificate representing that no material adverse change had occurred.

The lenders claimed

that Chase knew (or had reason to know) that the documents were materially inaccurate. Chase
did not dispute that the documents were inaccurate but argued, as BofA does here, that the credit
agreement relieved it of responsibility for the accuracy of the information the borrower supplied.
39

The Court rejected that argument.

“[I]f Chase knew, or was grossly negligent in not knowing,

that the materials . . . were materially inaccurate, it cannot argue that those materials were
40

satisfactory in ‘substance.’”

36

No. 93 Civ. 5298 (LMM), 1996 U.S. Dist. LEXIS 15631 (S.D.N.Y. Oct. 17, 1996).

37

Id. at *4.

38

Id. at *17-18.

39

Id. at *19-21.

40

Id. at *21. The cases BofA cite do not address whether an agent bank can fulfill its obligations
by relying on statements it knows are inaccurate. Instead, they each concern whether or not an
agent had a duty to disclose information or a duty to investigate. See BofA Motion 13 nn. 45 &
46 citing Stanfield Offshore Leveraged Assets, Ltd v. Metro Life Ins. Co., 883 N.Y.S.2d 486,
489-90 (N.Y. App. Div. 2009) (holding plaintiffs failed to plead aiding and abetting fraud where
the crux of the claim was that the agent bank assisted in the borrower's fraud by failing to
disclose the borrower’s insolvency and the loan agreement provided that the agent had no duty to
disclose); UniCredito Italiano SpA v. JPMorgan Chase Bank, 288 F. Supp. 2d 485, 497-99, 50203 (S.D.N.Y. 2003) (granting loan administrators' motion to dismiss fraud and misrepresentation
claims as well as claim for breach of implied covenant to the extent it was based on the
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41

The court in Chase Manhattan Bank v. Motorola, Inc. reached a similar result.

Motorola involved a loan guarantee by Motorola in connection with a loan to Iridium, a spin-off
from Motorola. Iridium issued a certificate in apparent compliance with the loan agreements,
which Motorola argued relieved it of its guarantee obligations. Chase, the agent bank,
questioned the certificate and demanded that the guarantee be reinstated. The court found that
the certificate was materially false and rejected Motorola’s claim that it could rely on the false
certificate to terminate its obligation because (1) Iridium’s issuance of a false certificate was
itself an Event of Default under the loan agreement that triggered the guarantee (as were the
Project Entities’ false certificates here an Event of Default under Section 7.1.3(c) of the
Disbursement Agreement) and (2) Motorola “knew, or was on notice of, the false and misleading
42

nature of Iridium’s Certificate.”

Like the guarantor in Motorola and the bank agent in Bank Brussels Lambert, BofA knew
or was grossly negligent in not knowing that the certificates submitted by the Project Entities

defendants’ failure to disclose information concerning the borrower where the operative
contracts specifically absolved the defendants from any duty to disclose); Cont'l Cas. Co. v. State
of N.Y. Mortgage Agency, No. 94 Civ. 8408(KMW), 1998 WL 513054 (S.D.N.Y. Aug. 18, 1998)
(holding a trustee complied with the terms of a contract where it : “relied in good faith on various
documents in carrying out its duties” and was under no duty to investigate the validity of
documents it “in good faith reasonably believe[d] to be genuine”).
41

184 F. Supp. 2d 384 (S.D.N.Y. 2002).

42

Id. at 394-395. In connection with a different issue, the court noted that the Credit Agreement
at issue expressly provided that Chase could rely on Iridium’s certificates “regardless of any
investigation made by [it] or on its behalf and notwithstanding that [Chase] or any Lender may
have had notice or knowledge of any [. . .] incorrect representation or warranty.” Id. at 395
(emphasis added). That demonstrates that the banking industry understands how to write
language insulating a bank agent from responsibility for known inaccuracies and
misrepresentations in certificates submitted by borrowers. Notably, the parties to the
Disbursement Agreement provided no such language, and BofA’s attempt to read such language
into the agreement is impermissible. Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1
N.Y.3d 470, 475-476 (N.Y. 2004) (explaining that “courts may not by construction add or excise
terms” of a contract).
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were materially inaccurate, and BofA cannot now escape liability by contending that it relied on
those false statements.
Second, under New York law as well as under the express terms of the Disbursement
43

Agreement, BofA is liable for its own gross negligence and willful misconduct.

Purporting to

rely on representations it knows or has reason to know are false to the detriment of the Term
44

Lenders is, at a minimum, grossly negligent.

And BofA’s contention that the Disbursement

Agreement insulated it from liability for its own gross negligence would read into the agreement
protections contrary to the public policy of New York: “It is the public policy of [New York] . . .
that a party may not [contractually] insulate itself from damages caused by grossly negligent
45

conduct,” and any such clauses are unenforceable.

Accordingly, even if the Disbursement

Agreement could be read to provide BofA the protections it now puts forth (which, for the
reasons set forth above, it cannot), such protections would be invalid and unenforceable under
New York law.

43

Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554 (N.Y. 1992); D.A. § 9.10.

44

Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998) (Under New York law, gross negligence
requires conduct that “evinces a reckless disregard for the rights of others or smacks of
intentional wrongdoing.”); Fidata Trust Co. of New York v. Banker’s Trust Co., No. 87 Civ.
5025 (RO), 1990 U.S. Dist. LEXIS 2228, at *4 (S.D.N.Y. Mar. 2, 1990) (Under New York law,
gross negligence requires that a defendant disregarded “the consequences which may ensue from
[his] act, and indifference to the rights of others.”)
45

Sommer, 79 N.Y.2d at 554; see also Apache Bohai Corp. LDC v. Texaco China BV, No. 0520413, 2007 U.S. App. LEXIS 4403 (5th Cir. Feb. 27, 2007) (stating rule under New York law).
-16-

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B.

The Nevada Term Lenders Have Properly Alleged a Claim for Breach of the
Implied Covenant of Good Faith and Fair Dealing
1.

The Nevada Term Lenders’ Breach of Contract Claim Is Alternative
to, not Duplicative of, Their Breach of Implied Covenant Claim

BofA argues that the plaintiffs in the Avenue Action (the “Nevada Term Lenders”) have
failed to allege a claim for breach of any express term of the Disbursement Agreement. In the
same breath, BofA asserts that the Nevada Term Lenders’ claim for breach of the implied
covenant of good faith and fair dealing must be dismissed because it is duplicative of the
(purportedly deficient) express contract claim. It is not. Among other things, the Nevada Term
Lenders allege here, but not in the express breach claim, that BofA failed to communicate
information regarding defaults known to BofA.

46

In any event, BofA cannot have it both ways.

If the express contract claim fails, there clearly is no duplication of claims. Until that
determination is made, the Nevada Term Lenders are entitled to pursue claims in the
47

alternative.

BofA has cited no authority to the contrary.
2.

The Nevada Term Lenders’ Implied Covenant Claim Is Not
Inconsistent with the Express Terms of the Disbursement Agreement

In New York, the covenant of good faith and fair dealing is implied in every contract and
encompasses a pledge by each party not to “do anything which has the effect of destroying or
injuring the right of the other party to receive the fruits of the contract.”

48

The implied covenant

is intended to fill gaps in the express terms of a contract to ensure that the “parties’ intent and

46

Avenue Complaint ¶ 192.

47

Fed. R. Civ. P. 8(d); United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009)
(“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both
alternative and inconsistent claims.”).

48

JPMorgan Chase Bank, N.A. v. IDW Group, LLC, No. 08 Civ. 9116 (PGG), 2009 U.S. Dist.
LEXIS 9207, at *11 (S.D.N.Y. Feb. 9, 2009); see also EBC I, Inc. v. Goldman Sachs & Co., 5
N.Y.3d 11, 22 (N.Y. 2005) (same).
-17-

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49

reasonable expectations in entering the contract” are not frustrated.

The parties’ “reasonable

expectations” are shaped by what a “reasonable person in the position of the promisee would be
50

justified in understanding were included” and are informed by principles of sound commercial
51

practice.

Until the funds in the Bank Proceeds Account were distributed, they remained in place
for the benefit of the Lenders. BofA was the gatekeeper of the Bank Proceeds Account on behalf
of all Lenders, responsible for ensuring that the funds remained in place unless and until all of
the agreed conditions precedent to disbursement had been satisfied. The Nevada Term Lenders
reasonably understood and expected that if BofA became aware that conditions to funding had
not been satisfied, in particular that there were material, existing Defaults, it would not disburse
the funds it was charged with overseeing on their behalf. Certainly, the Nevada Term Lenders
expected that BofA would not disburse funds as a means of promoting its own interests and the
52

interests of the Revolving Lenders (including BofA) over the interests of the Term Lenders.

The Nevada Term Lenders’ expectations were reasonable. To the extent BofA contends that the

49

Cross & Cross Properties Ltd. v. Everett Allied Co., 886 F.2d 497, 502 (2d Cir. 1989); see also
Restatement 2d of Contracts, § 205, Comment a (“Good faith performance or enforcement of a
contract emphasizes faithfulness to an agreed common purpose and consistency with the justified
expectations of the other party….”)

50

511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153 (N.Y. 2002).

51

Components Direct, Inc. v. European American Bank & Trust Co., 175 A.D.2d 227, 229-230
(N.Y. App. Div. 1991) (finding breach of covenant of good faith and fair dealing because sound
commercial practice would require party to give notice prior to terminating contract despite the
fact there was no express contract provision requiring such notice; court inferred notice
requirement because “any other construction would make the contract unreasonable”).
52

Avenue Complaint ¶ 192; see, e.g., Smith v. CPC Int’l, Inc., 177 F.3d 110 (2d Cir. 1999)
(holding claims for breach of contract and breach of implied covenant should have survived
summary judgment because there were factual disputes as to whether defendant breached the
distribution agreements in bad faith by terminating the contract without good cause in order to
enrich itself).
-18-

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Disbursement Agreement does not expressly prohibit BofA’s disbursement of funds under these
circumstances, the implied covenant of good faith clearly does.
BofA’s sole contention is that a good faith obligation not to disburse under these
circumstances would be inconsistent with certain express terms of the Disbursement
53

Agreement. They are not:


§ 9.3.2 (right to rely on certifications by Project Entities) – as noted in Section
III.A.2., supra, assuming arguendo that BofA was entitled to rely in good faith on
certifications by the Project Entities if it did not have contrary knowledge, it was not
permitted under either the express terms of the Disbursement Agreement (§§ 7.1.3(c),
3.3.21and 9.1) or under settled New York law to “rely” on certifications that it knew
to be false.



§ 9.10 (limitation of liability, no duty to investigate) – the Nevada Term Lenders do
not base their claims upon the failure of BofA to investigate and discover facts, but
rather that it knew facts that it failed to act upon.



§ 2.5.1 (Stop Funding Notice) – Section 2.5.1 required BofA to issue a Stop Funding
Notice in the event that “the conditions precedent to an Advance have not been
satisfied.” This is consistent, not inconsistent, with the Nevada Term Lenders’ claim
that BofA violated its obligations by failing to do so.



§ 9.2.5 (no imputed knowledge) – the Nevada Term Lenders do not allege that BofA
had only imputed knowledge of the defaults and failed conditions precedent, rather
that it had actual knowledge.



§ 11.1 (written notice) – the fact that the Disbursement Agreement required notices to
be in writing is hardly inconsistent with BofA’s good faith obligation not to disburse
funds when it knew of defaults and failed conditions precedent.

Because there is no inconsistency between the Nevada Term Lenders’ covenant of good faith
claims and the express terms of the Disbursement Agreement, BofA’s motion to dismiss the
Nevada Term Lenders’ claim for breach of the implied covenant of good faith and fair dealing
should be denied.

53

BofA Motion 17-18.
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IV.

CONCLUSION
For the foregoing reasons Plaintiffs respectfully request this Court deny BofA’s Motion

to Dismiss Term Lenders’ Disbursement Agreement Claims in its entirety.
DATED: March 22, 2010
Respectfully submitted,

Brett Amron
BAST AMRON
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

By: /s David A. Rothstein
David A. Rothstein
Lorenz M. Pruss
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]

-and-

-and-

James B. Heaton, III
Steven J. Nachtwey
John D. Byars
Vincent S. J. Buccola
BARTLIT BECK HERMAN PALENCHAR
& SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

J. Michael Hennigan
Kirk D. Dillman
HENNIGAN, BENNETT & DORMAN LLP
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Avenue CLO Fund, LTD.,
et al.

Attorneys for Plaintiffs ACP Master, Ltd. and
Aurelius Capital Master, Ltd.

-20-

Case 1:09-md-02106-ASG Document 52 Entered on FLSD Docket 03/22/2010 Page 26 of 26

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing JOINT OPPOSITION TO
DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS THE TERM
LENDERS’ DISBURSEMENT AGREEMENT CLAIMS was filed with the Clerk of the Court
using CM/ECF. I also certify that the foregoing document is being served this day on all counsel
of record or pro se parties identified on the attached Service List in the manner specified either
via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
the Notice of Electronic Filing.

Dated: March 22, 2010.

/s David A. Rothstein
David A. Rothstein

HBDDOCS\779520.18

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-2106-CIV-GOLD/MCALILEY
This document relates to all actions
In re:
FONTAINEBLEAU LAS VEGAS CONTRACT
LITIGATION,
MDL No. 2106
______________________________________/
MDL ORDER NUMBER ELEVEN: GRANTING MOTIONS FOR
LIMITED APPEARANCES OF STEVEN CHIN AND PHILLIP GERACI [DE 53]; [DE 54]
THIS CAUSE having come before the Court upon the Motion for Limited Appearance
of Steven Chin and Phillip Geraci, Consent to Designation and Request to Electronically
Receive Notices of Electronics Filings (“Motion”) [DE 53]; [DE 54], requesting, pursuant
to the Special Rules Governing the Admission and Practice of Attorneys in the United
States District Court for the Southern District of Florida, permission for a limited
appearance of Steven Chin and Phillip Geraci in this matter and to electronically receive
notice of electronic filings. Having considered the Motion and being otherwise fully advised
in the Premises, it is hereby
ORDERED and ADJUDGED that:
1.

The Motions for Limited Appearance, Consent to Designation and Request to
Electronically Receive Notices of Electronic Filings [DE 53]; [DE 54] are
GRANTED.

2.

Steven Chin and Phillip Geraci are permitted to appear and participate in this
action for purposes of limited appearances as co-counsel on behalf of Defendant
HSH Nordbank AG in the above-referenced actions.

3.

The Clerk shall provide electronic notification of all electronic filings to Steven

Case 1:09-md-02106-ASG Document 55 Entered on FLSD Docket 03/31/2010 Page 2 of 2

Chin and Phillip Geraci at [e-mail] and
[e-mail] , respectively.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of
March, 2010.

__________________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc:
Magistrate Judge Chris McAliley
All Counsel of Record

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-2106-CIV-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS CONTRACT
LITIGATION,
MDL No. 2106
This document relates to all actions.
______________________________________/
MDL ORDER NUMBER TWELVE: SETTING TELEPHONIC STATUS CONFERENCE

THIS CAUSE is before the Court upon the parties’ request for a telephonic status
conference. While the parties requested that a status conference be held at 5:15 p.m. on
Wednesday, April 14, 2010, the Undersigned has a conflict at that particular time.
Accordingly, it is hereby ORDERED AND ADJUDGED that
1.

A telephonic status conference is hereby set before the Honorable Alan S. Gold, at
the United States District Court, Courtroom 11-1, Eleventh Floor, 400 North Miami
Avenue, Miami, Florida, on Friday April 16, 2010 at 1:30 p.m. Participants shall
call 1-866-208-0348 and provide the Conference ID #: 68617563. Please be
prompt.

2.

The parties are ORDERED to file a Joint Submission of 5 pages or less no later
than Thursday April 15, 2010 at 12:00 p.m. specifying the issues to be discussed
at the status conference and setting forth their respective positions on said issues.
DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of April,
2010.

__________________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge Bandstra
All Counsel of Record

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MASTER CASE NO. 09-2106-MD-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
______________________________________/
JOINT MOTION FOR EXTENSION OF CERTAIN PRE-TRIAL DEADLINES
Plaintiffs in ACP Master, Ltd. v. Bank of America, N.A., 09-CV-08064 (S.D.N.Y.) and
Avenue CLO Fund, Ltd. v. Bank of America, N.A., 09-CV-1047 (D. Nev.) (collectively the “Term
Lender Plaintiffs”), Plaintiff Fontainebleau Las Vegas, LLC (“Fontainebleau”)1 and Defendants,
as required by MDL Order Number 13, submit this joint motion specifically identifying the pretrial deadline modifications requested by the parties.
WHEREAS, on January 8, 2010, the Court issued MDL Order Number 3 (the
“Scheduling Order”) which established certain pre-trial deadlines; and
WHEREAS, on April 15, 2010, the parties filed a Joint Statement in which, inter alia, all
parties joined in requesting sixty-day extensions of certain deadlines set forth in the Scheduling
Order; and

1

Subject to all applicable orders of the Court, Fontainebleau joins this motion without
prejudice to any position that may be taken, or relief that may be sought, by any Chapter 7
Trustee that is appointed in accordance with the April 12, 2010, and April 19, 2010 Orders in In
re Fontainebleau Las Vegas Holdings, LLC, et al, No. 09-2-21481-BKC-AJC (Bankr. S.D. Fl.),
and specifically reserves all applicable rights in that regard.

Case 1:09-md-02106-ASG Document 62 Entered on FLSD Docket 04/22/2010 Page 2 of 6

WHEREAS, on April 19, 2010, the Court issued MDL Order Number 13, which, inter
alia, required the parties to file a Motion for Extension of Pre-Trial Deadlines specifically
identifying the pre-trial deadlines the parties are requesting.
NOW, THEREFORE, the parties hereby respectfully request that this Court approve the
following extensions to the pre-trial deadlines set forth in the Scheduling Order:
1.

The Scheduling Order currently provides that the deadline for completion of

document productions in response to initial Requests for Production is May 13, 2010. The
parties request that this date be extended by sixty days, to Monday, July 12, 2010.
2.

The Scheduling Order currently provides that the deadline for commencement of

fact depositions is July 1, 2010. The parties request that this date be extended by sixty days, to
Monday, August 30, 2010.
3.

The Scheduling Order currently provides that the deadline for identification of

expert witnesses by the Term Lender Plaintiffs and Fontainebleau is September 30, 2010. The
parties request that this date be extended by sixty days, to Monday, November 29, 2010.
4.

The Scheduling Order currently provides that the deadline for Defendants’

identification of expert witnesses is November 1, 2010. The parties request that this date be
extended by sixty days, to Friday, December 31, 2010.
Respectfully submitted,
Dated: April 22, 2010

By:

/s/ John B. Hutton

GREENBERG TRAURIG, P.A.
John B. Hutton
Florida Bar No. 902160
Mark D. Bloom
Florida Bar No. 303836
1221 Brickell Avenue
Miami, FL 33131
Telephone: [phone]
2

Case 1:09-md-02106-ASG Document 62 Entered on FLSD Docket 04/22/2010 Page 3 of 6

Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
-andSIMPSON THACHER & BARTLETT LLP
Thomas C. Rice (pro hac vice)
David Woll (pro hac vice)
425 Lexington Avenue
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]

ATTORNEYS FOR DEFENDANTS
JPMORGAN CHASE BANK, N.A.,
BARCLAYS BANK PLC, DEUTSCHE
BANK TRUST COMPANY AMERICAS,
and THE ROYAL BANK OF SCOTLAND
PLC
By:

/s/ Craig V. Rasile

HUNTON & WILLIAMS LLP
Craig V. Rasile
Kevin M. Eckhardt
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
-andO’MELVENY & MYERS LLP
Bradley J. Butwin (pro hac vice)
Jonathan Rosenberg (pro hac vice)
Daniel L. Cantor (pro hac vice)
William J. Sushon (pro hac vice)
7 Times Square
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]

By:

/s/ Arthur Halsey Rice

RICE PUGATCH ROBINSON &
SCHILLER, P.A.
Arthur Halsey Rice
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]
-andKAYE SCHOLER LLP
Aaron Rubinstein (pro hac vice)
Phillip A. Geraci (pro hac vice)
425 Park Avenue
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT HSH
NORDBANK AG, NEW YORK BRANCH

By:
3

/s/ Robert Fracasso

Case 1:09-md-02106-ASG Document 62 Entered on FLSD Docket 04/22/2010 Page 4 of 6

[e-mail]
[e-mail]
ATTORNEYS FOR BANK OF AMERICA,
N.A. and MERRILL LYNCH CAPITAL
CORPORATION

By:

/s/ Harold D. Moorefield, Jr.

STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, PA
Harold D. Moorefield, Jr.
Drew M. Dillworth
Museum Tower
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Telephone: [phone]
Facsimile: [phone]
-andKATTEN MUCHIN ROSENMAN LLP
Kenneth E. Noble (pro hac vice)
Anthony L. Paccione (pro hac vice)
575 Madison Avenue
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT BANK
OF SCOTLAND PLC
By:
/s/ Bruce J. Berman
MCDERMOTT WILL & EMERY LLP
Bruce J. Berman, Esq.
201 South Biscayne Boulevard
Suite 2200
Miami, Florida 33131-4336
[phone] (tel)
[phone] (fax)
E-mail: [e-mail]

SHUTTS & BOWEN LLP
Robert Fracasso
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
-andMAYER BROWN LLP
Jean-Marie L. Atamian (pro hac vice)
Jason I. Kirschner (pro hac vice)
1675 Broadway
New York, New York 10019-5820
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR SUMITOMO MITSUI
BANKING CORPORATION
By:

/s/ Peter Roberts

SHAW GUSSIS FISHMAN GLANTZ
WOLFSON & TOWBIN LLC
Robert W. Glantz (limited appearance)
Peter J. Roberts (limited appearance)
321 North Clark St., Suite 800
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
-andASTIGARRAGA DAVIS
MULLINS & GROSSMAN, PA
Gregory S. Grossman
701 Brickell Avenue, 16th Floor
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

Andrew B. Kratenstein (limited appearance)
Michael R. Huttenlocher (limited appearance) ATTORNEYS FOR DEFENDANT
MB FINANCIAL BANK, N.A.
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10173
4

Case 1:09-md-02106-ASG Document 62 Entered on FLSD Docket 04/22/2010 Page 5 of 6

[phone] (tel)
[phone] (fax)
E-mail: [e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT
CAMULOS MASTER FUND, L.P.

HENNIGAN BENNETT & DORMAN LLP
By: /s/ Kirk Dillmann
J. Michael Hennigan
Kirk D. Dillman
865 S Figueroa Street
Suite 2900
Los Angeles, CA 90017

BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP

-and-

By:
/s/ Steven J. Nachtwey
James B. Heaton, III
Steven J. Nachtwey
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

DIMOND KAPLAN & ROTHSTEIN, P.A.

-and-

David A. Rothstein
2665 South Bayshore Drive
Penthouse Two
Miami, FL 331343
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Brett Amron
BAST AMRON
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs
AVENUE CLO FUND, LTD., ET AL.

Attorneys for Plaintiffs
ACP MASTER, LTD., ET AL.
BILZIN SUMBERG BAENA PRICE &
AXELROD LLP
Counsel to the Plaintiff
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
By: /s/ Scott L. Baena
Scott L. Baena
Florida Bar No. 186445
Mindy A. Mora
Florida Bar No. 678910
5

Case 1:09-md-02106-ASG Document 62 Entered on FLSD Docket 04/22/2010 Page 6 of 6

Jay M. Sakalo
Florida Bar No. 156310
and
KASOWITZ, BENSON, TORRES &
FRIEDMAN LLP
Special Litigation Counsel to the Plaintiff
1633 Broadway
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Marc E. Kasowitz
N.Y. Bar No. 1309871
(pro hac vice)
David M. Friedman
N.Y. Bar No. 2275758
(pro hac vice)
Jed I. Bergman
N.Y. Bar No. 2928349
(pro hac vice)
Seth A. Moskowitz
N.Y. Bar No. 2884542
(pro hac vice)

6

Case 1:09-md-02106-ASG Document 63 Entered on FLSD Docket 04/22/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to 09-CV-01047-KJD-PAL
_________________________________________/

VOLUNTARY DISMISSAL WITHOUT PREJUDICE BY PLAINTIFFS
ROSEDALE CLO, LTD. AND ROSEDALE CLO II LTD.
PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 41(a)(1), plaintiffs Rosedale
CLO, Ltd. and Rosedale CLO II Ltd. hereby voluntarily dismiss this action without prejudice.
The Second Amended Complaint was filed on January 15, 2010. At this time, no defendant has
answered or filed a summary judgment motion. This voluntary dismissal by Rosedale CLO, Ltd.
and Rosedale CLO II Ltd. in no way modifies or affects the remaining plaintiffs’ prosecution of
their claims against defendants.
Dated: April 22, 2010.
Respectfully submitted,

By: /s Lorenz Michel Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz Michel Prüss, Esq.
Fla Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 331343
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders

Case 1:09-md-02106-ASG Document 63 Entered on FLSD Docket 04/22/2010 Page 2 of 2

Of counsel:
J. Michael Hennigan
Kirk D. Dillman
HENNIGAN, BENNETT & DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on April 22, 2010, a copy of the foregoing
VOLUNTARY DISMISSAL WITHOUT PREJUDICE BY PLAINTIFFS ROSEDALE
CLO, LTD. AND ROSEDALE CLO II LTD. was filed with the Clerk of the Court using
CM/ECF. I also certify that the foregoing document is being served this day on all counsel of
record or pro se parties identified on the attached Service List in the manner specified either via
transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized
manner for those counsel or parties who are not authorized to receive electronically the Notice of
Electronic Filing.

By: /s Lorenz Michel Prüss
Lorenz Michel Prüss

2

Case 1:09-md-02106-ASG Document 64 Entered on FLSD Docket 04/27/2010 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA
This document relates to Case No.: 09-23835-CIV-GOLD/BANDSTRA
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
_________________________________/
ORDER DISMISSING PARTIES WITHOUT PREJUDICE UPON NOTICE
OF VOLUNTARY DISMISSAL [DE 63]; DIRECTING CLERK TO TAKE ACTION
THIS CAUSE is before the Court upon a Notice of Voluntary Dismissal [DE 63]
filed by certain Plaintiffs regarding their participation in Case Number 09-CV-23835
(“the Nevada action”). Having considered the Notice, the record, and being otherwise
duly advised, it is hereby ORDERED AND ADJUDGED that:
1.

The following parties are hereby DISMISSED WITHOUT PREJUDICE from the
Nevada Action:
a.
b.

2.

Rosedale CLO II Fund, Ltd.;
Rosedale CLO, Ltd.;

The clerk is directed to correct the pertinent dockets so that the
above-referenced parties are no longer listed as Plaintiffs in the Nevada Action.
DONE and ORDERED IN CHAMBERS at Miami, Florida this 26th day of April,

2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge Bandstra
Counsel of record

Case 1:09-md-02106-ASG Document 65 Entered on FLSD Docket 04/28/2010 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to 09-CV-01047-KJD-PAL
/
VOLUNTARY DISMISSAL WITHOUT PREJUDICE BY PLAINTIFFS ABERDEEN
LOAN FUNDING, LTD.; ARMSTRONG LOAN FUNDING, LTD.; BRENTWOOD CLO,
LTD.; EASTLAND CLO, LTD.; GLENEAGLES CLO, LTD; GRAYSON CLO, LTD;
GREENBRIAR CLO, LTD.; HIGHLAND CREDIT OPPORTUNITIES CDO, LTD.;
HIGHLAND LOAN FUNDING V, LTD.; HIGHLAND OFFSHORE PARTNERS, L.P.;
JASPER CLO, LTD.; LIBERTY CLO, LTD.; LOAN FUNDING IV LLC; LOAN
FUNDING VII LLC; LOAN STAR STATE TRUST; RED RIVER CLO, LTD.;
ROCKWALL CDO, LTD.; ROCKWALL CDO II, LTD.; SOUTHFORK LLO, LTD.;
STRATFORD CLO, LTD.; AND WESTCHESTER CLO, LTD.
PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 41(a)(1), plaintiffs Aberdeen
Loan Funding, Ltd.; Armstrong Loan Funding, Ltd.; Brentwood CLO, Ltd.; Eastland CLO, Ltd.;
Gleneagles CLO, Ltd; Grayson CLO, Ltd; Greenbriar CLO, Ltd.; Highland Credit Opportunities
CDO, Ltd.; Highland Loan Funding V, Ltd.; Highland Offshore Partners, L.P.; Jasper CLO, Ltd.;
Liberty CLO, Ltd.; Loan Funding IV LLC; Loan Funding VII LLC; Loan Star State Trust; Red
River CLO, Ltd.; Rockwall CDO, Ltd.; Rockwall CDO II, Ltd.; Southfork LLO, Ltd.; Stratford
CLO, Ltd.; and Westchester CLO, Ltd. (“Highland Plaintiffs”) hereby voluntarily dismiss this
action without prejudice. The Second Amended Complaint was filed on January 15, 2010. At
this time no defendant has answered or filed a summary judgment motion. This voluntary
dismissal by the Highland Plaintiffs in no way modifies or affects the remaining plaintiffs’
prosecution of their claims against defendants.

Case 1:09-md-02106-ASG Document 65 Entered on FLSD Docket 04/28/2010 Page 2 of 3

Dated: April 28, 2010.

Respectfully submitted,

By:

/s Lorenz Michel Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz Michel Prüss, Esq.
Fla. Bar No.: 581305
[e-mail]

DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders
Of counsel:
J. Michael Hennigan
Kirk D. Dillman
HENNIGAN, BENNETT & DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

2

Case 1:09-md-02106-ASG Document 65 Entered on FLSD Docket 04/28/2010 Page 3 of 3

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on April 28, 2010, a copy of the foregoing
VOLUNTARY DISMISSAL WITHOUT PREJUDICE BY PLAINTIFFS ABERDEEN
LOAN FUNDING, LTD.; ARMSTRONG LOAN FUNDING, LTD.; BRENTWOOD CLO,
LTD.; EASTLAND CLO, LTD.; GLENEAGLES CLO, LTD; GRAYSON CLO, LTD;
GREENBRIAR CLO, LTD.; HIGHLAND CREDIT OPPORTUNITIES CDO, LTD.;
HIGHLAND LOAN FUNDING V, LTD.; HIGHLAND OFFSHORE PARTNERS, L.P.;
JASPER CLO, LTD.; LIBERTY CLO, LTD.; LOAN FUNDING IV LLC; LOAN
FUNDING VII LLC; LOAN STAR STATE TRUST; RED RIVER CLO, LTD.;
ROCKWALL CDO, LTD.; ROCKWALL CDO II, LTD.; SOUTHFORK LLO, LTD.;
STRATFORD CLO, LTD.; AND WESTCHESTER CLO, LTD. was filed with the Clerk of
the Court using CM/ECF. I also certify that the foregoing document is being served this day on
all counsel of record or pro se parties identified on the attached Service List in the manner
specified either via transmission of Notices of Electronic Filing generated by CM/ECF or in
some other authorized manner for those counsel or parties who are not authorized to receive
electronically the Notice of Electronic Filing.

By: /s Lorenz Michel Prüss
Lorenz Michel Prüss

3

Case 1:09-md-02106-ASG Document 68 Entered on FLSD Docket 05/03/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA
This document relates to Case No.: 09-23835-CIV-GOLD/McALILEY
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
_________________________________/
ORDER DISMISSING PARTIES WITHOUT PREJUDICE PURSUANT TO NOTICE
OF VOLUNTARY DISMISSAL [DE 65]; DIRECTING CLERK TO TAKE ACTION
THIS CAUSE is before the Court upon a Notice of Voluntary Dismissal [DE 65]
filed by certain Plaintiffs regarding their participation in Case Number 09-CV-23835
(“the Nevada action”). Having considered the Notice, the record, and being otherwise
duly advised, it is hereby ORDERED AND ADJUDGED that:
1.

The following parties are hereby DISMISSED WITHOUT PREJUDICE from the
Nevada Action:
a.

Aberdeen Loan Funding, Ltd.;

b.

Armstrong Loan Funding, Ltd.;

c.

Brentwood CLO, Ltd.;

d.

Eastland CLO, Ltd.;

e.

Gleneagles CLO, Ltd;

f.

Grayson CLO, Ltd;

g.

Greenbriar CLO, Ltd.;

h.

Highland Credit Opportunities CDO, Ltd.;

i.

Highland Loan Funding V, Ltd.;

j.

Highland Offshore Partners, L.P.;

k.

Jasper CLO, Ltd.;

Case 1:09-md-02106-ASG Document 68 Entered on FLSD Docket 05/03/2010 Page 2 of 2

l.
m.

Loan Funding IV LLC;

n.

Loan Funding VII LLC;

o.

Loan Star State Trust;

p.

Red River CLO, Ltd.;

q.

Rockwall CDO, Ltd.;

r.

Rockwall CDO II, Ltd.;

s.

Southfork LLO, Ltd.;

t.

Stratford CLO, Ltd.; and

u.
2.

Liberty CLO, Ltd.;

Westchester CLO, Ltd..

The clerk is directed to correct the dockets so that the above-referenced parties
are no longer listed as plaintiffs in the Nevada Action.
DONE and ORDERED IN CHAMBERS at Miami, Florida this 30th day of April,

2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge Bandstra
Counsel of record

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA

In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
FONTAINEBLEAU RESORTS, LLC’S UNOPPOSED MOTION FOR EXTENSION
OF TIME TO RESPOND TO PLAINTIFF TERM LENDERS’ DOCUMENT REQUESTS
DATED APRIL 22, 2010
Comes now, Third Party, Fontainebleau Resorts, LLC (“Fontainebleau”), by and
through its undersigned counsel, and pursuant to S.D. Fla. L.R. 7.1 hereby files this
Unopposed Motion for Extension of Time to Respond to Plaintiff Term Lenders’1 Document
Requests dated April 22, 2010 (the “Request”), and would state:
1.

On April 22, 2010, Plaintiff Term Lenders served Fontainebleau with the 41-

item Request. Fontainebleau’s response to same is due on or before May 13, 2010.
2.

Fontainebleau respectfully requests an additional thirty (30) days to respond

to the Request.2
3.

In accordance with S.D. Fla. L.R. 7.1.A.3, the undersigned counsel certifies

1

The Term Lenders include the plaintiffs in the cases captioned Avenue CLO Fund, Ltd.,
et al. v. Bank of America, et al., Case No. 09-cv-1047-KJD-PAL (D. Nev.) And ACP Master,
Ltd., et al v. Bank of America, N.A., et al., Case No. 09-cv-8064-LTS/THK (S.D.N.Y.).
2

Undersigned counsel was retained for the limited purpose of filing this Unopposed
Motion for Extension of Time to Respond to Plaintiff Term Lenders’ Document Requests dated
April 22, 2010. Undersigned counsel has not been retained for any other purposes, including with
respect to subsequent discovery requests.

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 2 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
that she has conferred with counsel for Plaintiff Term Lenders with regard to this Motion
and the relief sought. Counsel for Plaintiff Term Lenders have expressed that they have
no opposition to the relief requested.
5.

In addition, pursuant to S.D. Fla. L.R. 7.A.2, attached is a proposed Order

granting this Motion.
WHEREFORE, Third Party, Fontainebleau Resorts, LLC, respectfully requests that
this Honorable Court enter an order granting its Unopposed Motion for Extension of Time
to Respond to Term Lender’s Document Request dated April 22, 2010.
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 200
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

/s Sarah J. Springer
Craig J. Trigoboff
Florida Bar No. 880541
Sarah J. Springer
Florida Bar No. 0070747

2

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 3 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 13, 2010, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on the attached service list through transmission of
Notices of Electronic Filing generated by CM/ECF.
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 200
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

/s Sarah J. Springer
Craig J. Trigoboff
Florida Bar No. 880541
Sarah J. Springer
Florida Bar No. 0070747

3

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 4 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
ORDER ON FONTAINEBLEAU RESORTS’S UNOPPOSED MOTION FOR
EXTENSION OF TIME TO RESPOND TO PLAINTIFF TERM LENDERS’
DOCUMENT REQUEST DATED APRIL 22, 2010
THIS CAUSE came before the Court on Fontainebleau Resorts, LLC’s Motion for
Extension of Time to Respond to Plaintiff Term Lenders’ Document Request dated April
22, 2010. The Court, having considered the Motion, being advised of the agreement
among counsel for the respective parties, and being otherwise duly advised in the
premises, it is hereupon
ORDERED and ADJUDGED that Fontainebleau Resorts, LLC’s Motion be and the
same is hereby granted. Fontainebleau Resorts, LLC shall serve its Response to Term
Lender’s Document Request dated April 22, 2010, on or before June 14, 2010.
DONE and ORDERED in Fort Lauderdale, Miami-Dade County, Florida, on this
_____ day of May, 2010.
________________________________________
DISTRICT JUDGE ALAN S. GOLD
Copies to:
Craig J. Trigoboff, Esq.
Counsel on the attached Service List
4

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 5 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
SERVICE LIST
ATTORNEYS :

REPRESENTING :

Bradley J. Butwin, Esq.
Daniel L. Canton, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tel: [phone]/Fax: [phone]

Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
Tel: [phone]/Fax: [phone]

Bank of America, N.A.

Craig V. Rasile, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deustche Bank Trust Company Americans
Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland PLC

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas

John Blair Hutton III, Esq.
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

5

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 6 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
ATTORNEYS :

REPRESENTING :

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Royal Bank of Scotland PLC

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tel: [phone]/Fax: [phone]

Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Blvd.
Suite 1500 Miami Center
Miami, FL 33131
Tel: [phone]/Fax: [phone]

Sumitomo Mitsui Banking Corporation

Aaron Rubinstein, Esq.
W. Stewart Wallace, Esq.
Steven C. Chin, Esq.
Philip A. Geraci, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tel: [phone]/Fax: [phone]

HSH Nordbank AG, New York Branch

Aruthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3rd Avenue, Suite 1800
Fort Lauderdale, FL 33301
Tel: [phone]/Fax: [phone]

HSH Nordbank AG, New York Branch

6

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 7 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
ATTORNEYS :

REPRESENTING :

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tel: [phone]/ Fax: [phone]

MG Financial Bank, N.A.

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W. Liberty Street
Reno, NV 89501
Tel: [phone]/Fax: [phone]

MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 606554
Tel: [phone]/Fax: [phone]

MB Financial Bank, N.A.

Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

Royal Bank of Scotland PLC

Anthony L. Paccione, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]

Bank of Scotland
Bank of Scotland PLC

Arthur S. Linker, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

Bruce Judson Berman, Esq.
McDERMOTT WILL & EMERY LLP
201 S Biscayne Blvd., Suite 2200
Miami, FL 33131-4336
Tel: [phone]/Fax: [phone]

Camulos Master Fund, L.P.

7

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 8 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
ATTORNEYS :

REPRESENTING :

Andrew B. Kratenstein, Esq.
Michasel R. Huttonlocher, Esq.
McDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173-1922
Tel: [phone]/Fax: [phone]

Camulos Master Fund, L.P.

Nicholas J. Santoro, Esq.
SANTORO, DRIGGS, WALCH, KEARNEY,
HOLLEY & THOMPSON
400 S. Fourth Street, 3rd Floor
Las Vegas, NV 89101
Tel: [phone]/Fax: [phone]

Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz, Esq.
KASOWITZ BENSON TORRES & FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tel: [phone]/Fax: [phone]

Fontainebleau Las Vegas, LLC

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE &
AXELROD
200 S. Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tel: [phone]/Fax: [phone]

Fontainebleau Las Vegas, LLC

Harold Defore Moorefield, Jr., Esq.
STERNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130

Bank of Scotland PLC

Kenneth E. Noble, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

8

Case 1:09-md-02106-ASG Document 70 Entered on FLSD Docket 05/13/2010 Page 9 of 9

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
ATTORNEYS :

REPRESENTING :

Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

9

Case 1:09-md-02106-ASG Document 72 Entered on FLSD Docket 05/14/2010 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to 09-23835-CIVGOLD/BANDSTRA.

/

JOINT MOTION TO ADD PLAINTIFFS TO THE ACTION
Plaintiffs and Defendants submit this Joint Motion to add as plaintiffs to this action
Caspian Alpha Long Credit Fund, L.P. (“Caspian”), Monarch Master Funding Ltd. (“Monarch”),
and Normandy Hill Master Fund, L.P. (“Normandy”), and in support thereof, state as follows.
WHEREAS, Caspian, Monarch, and Normandy wish to join in the claims asserted by the
Plaintiffs in the Second Amended Complaint [D.E. 15] filed on January 15, 2010; and
WHEREAS, Defendants, while not conceding or admitting in any way that the claims of
Caspian, Monarch, or Normandy or any of the other Plaintiffs are meritorious, nonetheless agree
to the addition of Caspian, Monarch, and Normandy as plaintiffs to this action pursuant to the
following terms.
NOW, THEREFORE, the parties hereby respectfully request that this Court approve the
following terms agreed to by the parties in this action:
1.

Caspian, Monarch, and Normandy will be added to this action without the need of

filing a separate complaint.
2.

iManage\787170.7

Caspian, Monarch, and Normandy shall be bound by all existing case deadlines.

Case 1:09-md-02106-ASG Document 72 Entered on FLSD Docket 05/14/2010 Page 2 of 5

3.

Caspian, Monarch, and Normandy shall be bound by any order issued by this

Court on the pending motions to dismiss filed by Defendants.
4.

Caspian, Monarch, and Normandy shall file Corporate Disclosure Statements

pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Initial Disclosures pursuant to Rule
26(a)(1) of the Federal Rules of Civil Procedure, and written responses to all outstanding
discovery requests within 14 days of entry of an order adding them to this action.
Respectfully submitted,
Dated: May 14, 2010

By:

/s/ Lorenz Michel Prüss
David A. Rothstein
Fla. Bar No.: 056881
[e-mail]
Lorenz Michel Prüss
Fla. Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, Florida 33133
Telephone:
[phone]
Facsimile:
[phone]
-andHENNIGAN, BENNETT & DORMAN LLP
J. Michael Hennigan
Kirk D. Dillman
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiffs Avenue CLO Fund,
Ltd., et. al.

-2iManage\787170.7

Case 1:09-md-02106-ASG Document 72 Entered on FLSD Docket 05/14/2010 Page 3 of 5

By:

/s/ John B. Hutton

By:

/s/ Arthur Halsey Rice

GREENBERG TRAURIG, P.A.
John B. Hutton
Mark D. Bloom
1221 Brickell Avenue
Miami, Florida 33131
Telephone:
[phone]
Facsimile:
[phone]

RICE PUGATCH ROBINSON &
SCHILLER, P.A.
Arthur Halsey Rice
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, Florida 33301
Telephone:
[phone]
Facsimile:
[phone]

-and-

-and-

SIMPSON THACHER & BARTLETT LLP
Thomas C. Rice (pro hac vice)
David Woll (pro hac vice)
425 Lexington Avenue
New York, New York 10017
Telephone:
[phone]
Facsimile:
[phone]

KAYE SCHOLER LLP
Aaron Rubinstein (pro hac vice)
Phillip A. Geraci (pro hac vice)
425 Park Avenue
New York, New York 10022
Telephone:
[phone]
Facsimile:
[phone]

Attorneys for Defendants JPMorgan Chase
Bank, N.A., Barclays Bank PLC, Deutsche
Bank Trust Company Americas, and The Royal
Bank of Scotland PLC

Attorneys for Defendant HSH Nordbank, AG,
New York Branch

By:

By:

/s/ Craig V. Rasile

/s/ Robert Fracasso

HUNTON & WILLIAMS LLP
Craig V. Rasile
Kevin M. Eckhardt
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone:
[phone]
Facsimile:
[phone]

SHUTTS & BOWEN LLP
Robert Fracasso
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131
Telephone:
[phone]
Facsimile:
[phone]

-and-

-and-

O’MELVENY & MYERS LLP
Bradley J. Butwin (pro hac vice)
Jonathan Rosenberg (pro hac vice)
Daniel L. Cantor (pro hac vice)
William J. Sushon (pro hac vice)
7 Times Square
New York, New York 10036
Telephone:
[phone]
Facsimile:
[phone]

MAYER BROWN LLP
Jean-Marie L. Atamian (pro hac vice)
Jason I. Kirschner (pro hac vice)
1675 Broadway
New York, New York 10019-5820
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Sumitomo Mitsui Banking
Corporation

Attorneys for Bank of America, N.A. and
Merrill Lynch Capital Corporation
-3iManage\787170.7

Case 1:09-md-02106-ASG Document 72 Entered on FLSD Docket 05/14/2010 Page 4 of 5

By:

/s/ Harold D. Moorefield, Jr.

STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Harold D. Moorefield, Jr.
Drew M. Dillworth
Museum Tower
150 West Flager Street, Suite 2200
Miami, Florida 33130
Telephone:
[phone]
Facsimile:
[phone]

By:

/s/ Peter Roberts

SHAW GUSSIS FISHMAN GLANTZ
WOLFSON & TOWBIN LLC
Robert W. Glantz (limited appearance)
Peter J. Roberts (limited appearance)
321 North Clark Street, Suite 800
Chicago, Illinois 60654
Telephone:
[phone]
Facsimile:
[phone]
-and-

-andKATTEN MUCHIN ROSENMAN LLP
Kenneth E. Noble (pro hac vice)
Anthony L. Paccione (pro hac vice)
575 Madison Avenue
New York, New York 10022
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant Bank Scotland PLC

By:

ASTIGARRAGA DAVIS MULLINS &
GROSSMAN, P.A.
Gregory S. Grossman
701 Brickell Avenue, 16th Floor
Miami, Florida 33131
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant MB Financial Bank,
N.A.

/s/ Bruce J. Berman

MCDERMOTT WILL & EMERY LLP
Bruce J. Berman
201 South Biscayne Boulevard
Suite 2200
Miami, Florida 33131-4336
Telephone:
[phone]
Facsimile:
[phone]
-andMCDERMOTT WILL & EMERY LLP
Andrew B. Kratenstein (limited appearance)
Michael R. Huttenlocher (limited appearance)
340 Madison Avenue
New York, NY 10173
Miami, Florida 33131-4336
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant Camulos Master
Fund, L.P.

-4iManage\787170.7

Case 1:09-md-02106-ASG Document 72 Entered on FLSD Docket 05/14/2010 Page 5 of 5

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on May 14, 2010, a copy of the foregoing JOINT
MOTION TO ADD PLAINTIFFS TO THE ACTION was filed with the Clerk of the Court
using CM/ECF. I also certify that the foregoing document is being served this day on all counsel
of record or pro se parties identified on the attached Service List in the manner specified either
via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
the Notice of Electronic Filing.

By: /s/ Lorenz Michel Prüss
Lorenz Michel Prüss

-5-

Case 1:09-md-02106-ASG Document 72-1 Entered on FLSD Docket 05/14/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO 09-MD-02106-CIV-GOLD/BANDSTRA

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to 09-23835-CIVGOLD/BANDSTRA.

/

[PROPOSED] ORDER GRANTING JOINT MOTION TO ADD ADDITIONAL
PLAINTIFFS TO THE ACTION
THIS CAUSE is before the Court on the Joint Motion to Add Additional Plaintiffs to the
Action submitted by Plaintiffs and Defendants. For the reasons set forth in the Motion, it is
hereby
ORDERED AND ADJUDGED that
1.

The Motion is GRANTED.

2.

Caspian Alpha Long Credit Fund, L.P. (“Caspian”), Monarch Master Funding Ltd.
(“Monarch”), and Normandy Hill Master Fund, L.P. (“Normandy”) are hereby added
as plaintiffs to this action and join in the claims asserted by the Plaintiffs in the
Second Amended Complaint filed January 15, 2010 without the need of filing a
separate complaint.

3.

Caspian, Monarch, and Normandy shall be bound by all existing case deadlines.

4.

Caspian, Monarch, and Normandy shall be bound by any future order to be issued by
this Court on the pending motions to dismiss.

HBDDOCS\787121.1

Case 1:09-md-02106-ASG Document 72-1 Entered on FLSD Docket 05/14/2010 Page 2 of 2

5.

Caspian, Monarch, and Normandy shall file Corporate Disclosure Statements
pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Initial Disclosures
pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure, and written
responses to all outstanding discovery requests within 14 days of entry of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this __ day of May, 2010.

_______________________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT COURT JUDGE

cc:

Magistrate Judge Bandstra
All Counsel of Record

Case 1:09-md-02106-ASG Document 73 Entered on FLSD Docket 05/18/2010 Page 1 of 2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-2106-MD-GOLD/MCALILEY
IN RE:
FONTAINEBLEAU LAS VEGAS
HOLDINGS, LLC, ET AL.,
DEBTORS.
/
FONTAINEBLEAU LAS VEGAS LLC,
PLAINTIFF,
VS.
BANK OF AMERICA, N.A., ET AL.,

DEFENDANTS.

/

ORDER GRANTING JOINT MOTION TO ADD
ADDITIONAL PLAINTIFFS; DIRECTING CLERK TO TAKE ACTION
THIS CAUSE is before the Court on the Joint Motion to Add Additional Plaintiffs to the
Action submitted by Plaintiffs and Defendants [DE 72]. For the reasons set forth in the Motion,
it is hereby
ORDERED AND ADJUDGED that
1.

The Motion [DE 72] is GRANTED.

2.

Caspian Alpha Long Credit Fund, L.P. (“Caspian”), Monarch Master Funding Ltd.
(“Monarch”), and Normandy Hill Master Fund, L.P. (“Normandy”) are hereby added
as plaintiffs to this action and join in the claims asserted by the Plaintiffs in the
Second Amended Complaint filed January 15, 2010 without the need of filing a
separate complaint.

3.

Caspian, Monarch, and Normandy shall be bound by all existing case deadlines.

4.

Caspian, Monarch, and Normandy shall be bound by any future order to be issued by
this Court on the pending motions to dismiss.

Case 1:09-md-02106-ASG Document 73 Entered on FLSD Docket 05/18/2010 Page 2 of 2

5.

Caspian, Monarch, and Normandy shall file Corporate Disclosure Statements
pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Initial Disclosures
pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure, and written
responses to all outstanding discovery requests no later than June 4, 2010.

6.

The clerk shall update the pertinent docket(s) accordingly.
DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of May, 2010.

_________________________________
ALAN S. GOLD, US DISTRICT JUDGE

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Case 1:09-md-02106-ASG Document 75 Entered on FLSD Docket 05/20/2010 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 09-MD-02106-CIV-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
________________________________________/
This Document Relates to: 09-CV-21879
MOTION BY BILZIN SUMBERG BAENA PRICE &
AXELROD LLP TO WITHDRAW AS COUNSEL OF RECORD
FOR PLAINTIFF FONTAINEBLEAU LAS VEGAS, LLC
Bilzin Sumberg Baena Price & Axelrod LLP ("Bilzin Sumberg"), co-counsel of record to
Plaintiff Fontainebleau Las Vegas, LLC ("Fontainebleau"), hereby moves for entry of an Order
pursuant to S.D. Fla. L.R. 11.1(d)(3) authorizing Bilzin Sumberg to withdraw as co-counsel of
record for Fontainebleau and discharging Bilzin Sumberg from any further responsibilities in
respect of these cases and, in support thereof, states as follows:
1.

Fontainebleau and certain of its affiliates (the "Fontainebleau Debtors") retained

Bilzin Sumberg as their general bankruptcy counsel in connection with their chapter 11
bankruptcy cases filed in the United States Bankruptcy Court for the Southern District of Florida
(the "Bankruptcy Court").
2.

In the engagement letters executed by the Fontainebleau Debtors, the

Fontainebleau Debtors acknowledged that Bilzin Sumberg "has not undertaken to represent the
[Fontainebleau Debtors] if their bankruptcy cases (i) are converted to cases under chapter 7, (ii)
if a chapter 11 trustee is appointed, (iii) the venue of the cases is transferred to a district outside
the State of Florida or (iv) if an order is entered directing the disgorgement of any payments

1

Case 1:09-md-02106-ASG Document 75 Entered on FLSD Docket 05/20/2010 Page 2 of 9

made to [Bilzin Sumberg] in respect of fees, including any retainer payments. Accordingly,
[Bilzin Sumberg] reserves the right to seek to withdraw as counsel in any of the foregoing
events."
3.

On April 12, 2010, pursuant to 11 U.S.C. § 1112(a), the Bankruptcy Court entered

an order converting the bankruptcy cases of the Fontainebleau Debtors to cases under chapter 7
of the Bankruptcy Code, effective upon such order becoming final.1 On April 19, 2010, the
Bankruptcy Court entered an order determining the conversion order to be final.2
4.

On April 20, 2010, pursuant to 11 U.S.C. § 701, the United States Trustee

appointed Soneet R. Kapila as interim chapter 7 trustee for the Fontainebleau Debtors' estates.3
Pursuant to 11 U.S.C. §§ 323 and 704, the chapter 11 trustee is the legal representative of the
Fontainebleau Debtors' estates and the chapter 7 trustee, as opposed to Fontainebleau, is charged
with the furtherance of the interests of the Fontainebleau's bankruptcy estate in respect of this
case, including, without limitation, further prosecution of this case on behalf of Fontainebleau's
estate or settlement thereof.
5.

On May 3, 2010, the Bankruptcy Court approved the retention of the law firm of

Stichter Riedel Blain & Prosser, P.A. and Harley E. Riedel, Russell M. Blain, Becky FerrellAnton, and Susan Heath Sharp of that firm as general bankruptcy counsel to the chapter 7
trustee.4
6.

On May 5, 2010, Bilzin Sumberg was authorized by the Bankruptcy Court to

withdraw as counsel of record to the Fontainebleau Debtors and was discharged from providing

1

Case No. 09-21481-AJC, Dkt. No. 1944 (Bankr. S.D. Fla.).
Case No. 09-21481-AJC, Dkt. No. 1969 (Bankr. S.D. Fla.).
3
Case No. 09-21481-AJC, Dkt. No. 1973 (Bankr. S.D. Fla.).
4
Case No. 09-21481-AJC, Dkt. No. 2013 (Bankr. S.D. Fla.).
2

2

Case 1:09-md-02106-ASG Document 75 Entered on FLSD Docket 05/20/2010 Page 3 of 9

further services to the Fontainebleau Debtors except for certain limited services not germane to
this case.5
Relief Requested
7.

Bilzin Sumberg requests that it be allowed to withdraw as co-counsel of record to

Fontainebleau because, among other things, (a) upon the appointment of the chapter 7 trustee,
Fontainebleau was no longer the authorized representative of its bankruptcy estate and therefore
has no further role in this case; and (b) Bilzin Sumberg likely will not be compensated for any
services it provides in connection with this litigation. See Lamie v. U.S. Trustee, 540 U.S. 526
(2004).
8.

Bilzin Sumberg certifies that, pursuant to S.D. Fla. L.R. 11.1(d)(3), this Motion

has been served on Fontainebleau, the chapter 7 trustee, the chapter 7 trustee's counsel, and on
opposing counsel by the means and at the addresses shown on the attached certificate of service.
WHEREFORE, Bilzin Sumberg respectfully requests that the Court consider this
Motion, and thereupon enter an Order in the form attached hereto: (i) authorizing Bilzin
Sumberg to withdraw as co-counsel of record to Fontainebleau and discharging Bilzin Sumberg
from providing further services as co-counsel to Fontainebleau pursuant to S.D. Fla. L.R.
11.1(d)(3); and (ii) ordering such other and further relief as the Court may deem just and proper.
Dated: May 20, 2010
Respectfully submitted,
BILZIN SUMBERG BAENA PRICE &
AXELROD LLP
Counsel for the Plaintiff Fontainebleau Las
Vegas, LLC
200 South Biscayne Boulevard, Suite 2500
Miami, FL 33131
5

Case No. 09-21481-AJC, Dkt. No. 2025 (Bankr. S.D. Fla.).

3

Case 1:09-md-02106-ASG Document 75 Entered on FLSD Docket 05/20/2010 Page 4 of 9

Telephone: [phone]
Facsimile: [phone]
By: /s/ Scott L. Baena
Scott L. Baena
Fla. Bar No. 186445
[e-mail]
Jeffrey I. Snyder
Fla. Bar No. 21281
[e-mail]

4

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 09-MD-02106-CIV-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
________________________________________/
This Document Relates to: 09-CV-21879
[PROPOSED] ORDER GRANTING MOTION BY BILZIN SUMBERG BAENA PRICE
& AXELROD LLP TO WITHDRAW AS COUNSEL OF RECORD FOR PLAINTIFF
FONTAINEBLEAU LAS VEGAS, LLC
THIS MATTER came before the Court for consideration upon the Motion By Bilzin
Sumberg Baena Price & Axelrod LLP to Withdraw As Counsel of Record to Plaintiff
Fontainebleau Las Vegas, LLC [D.E. ___] (the "Motion") filed by Bilzin Sumberg Baena Price
& Axelrod LLP ("Bilzin Sumberg"). The Court, having considered the Motion, the record, and
the representations of counsel and being otherwise fully advised in the premises, finds good
cause to grant the Motion.
Accordingly, it is hereby ORDERED as follows:
1.

The Motion is GRANTED.

2.

Bilzin Sumberg is withdrawn as co-counsel of record to Plaintiff Fontainebleau

Las Vegas, LLC and is discharged from providing further services in connection with this case.
DONE AND ORDERED in Chambers in Miami, Florida, this ____ day of May 2010.
_______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc: Counsel of Record

1

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the foregoing Motion and
proposed order were served (a) via U.S. Mail postage prepaid; or (b) via electronic mail, on May
20, 2010 as set forth on the attached service list. In addition, the foregoing Motion and proposed
order were served via the Court's CM/ECF system upon all registered users via the Court's
CM/ECF notification.
Dated: May 20, 2010
/s/ Scott L. Baena
Scott L. Baena
US Mail Service List
Fontainebleau Las Vegas, LLC
c/o Howard Karawan
19950 W Country Club Drive
Aventura FL, 33180
Bradley J. Butwin, Esq.
Daniel L. Canton, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tel: [phone]/Fax: [phone]
Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
Tel: [phone]/Fax: [phone]
David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP

1

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425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]
John Blair Hutton III, Esq.
Mark D. Bloom, Esq.
GREENBERG TRAURIG
1221 Brickell Avenue
Miami, FL 33131
Tel: [phone]/Fax: [phone]
Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tel: [phone]/Fax: [phone]
Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tel: [phone]/Fax: [phone]
Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Blvd.
Suite 1500 Miami Center
Miami, FL 33131
Tel: [phone]/Fax: [phone]
Aaron Rubinstein, Esq.
W. Stewart Wallace, Esq.
Steven C. Chin, Esq.
Philip A. Geraci, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tel: [phone]/Fax: [phone]
Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3rd Avenue, Suite 1800
Fort Lauderdale, FL 33301
Tel: [phone]/Fax: [phone]

2

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Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tel: [phone]/ Fax: [phone]
Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W. Liberty Street
Reno, NV 89501
Tel: [phone]/Fax: [phone]
Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 606554
Tel: [phone]/Fax: [phone]
Anthony L. Paccione, Esq.
Arthur S. Linker, Esq
Kenneth E. Noble, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]
Bruce Judson Berman, Esq.
Andrew B. Kratenstein, Esq.
Michael R. Huttonlocher, Esq.
Nicholas J. Santoro, Esq.
McDERMOTT WILL & EMERY LLP
201 S Biscayne Blvd., Suite 2200
Miami, FL 33131-4336
Tel: [phone]/Fax: [phone]
David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz, Esq.
KASOWITZ BENSON TORRES & FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tel: [phone]/Fax: [phone]

3

Case 1:09-md-02106-ASG Document 75 Entered on FLSD Docket 05/20/2010 Page 9 of 9

Harold Defore Moorefield, Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130
Electronic Mail Service List
Mario Romine: [e-mail]
Howard Karawan: [e-mail]
Whitney Their: [e-mail]
Mark Lefever: [e-mail]
Soneet R. Kapila, Chapter 7 Trustee: [e-mail]
Harley Reidel, counsel to Chapter 7 Trustee: [e-mail]

4

Case 1:09-md-02106-ASG Document 76 Entered on FLSD Docket 05/24/2010 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-2106-MD-GOLD/BANDSTRA
CASE NO.: 09-21879-CIV-GOLD/BANDSTRA [Related Case]
CASE NO.: 09-23835-CIV-GOLD/BANDSTRA[Related Case]
IN RE:
FONTAINBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions
________________________________/
MDL ORDER NUMBER SIXTEEN; SECOND AMENDED ORDER
RESETTING CERTAIN PRETRIAL DEADLINES, REFERRING DISCOVERY
MOTIONS, DIRECTING PARTIES TO MEDIATION, AND ESTABLISHING
PRETRIAL DATES AND PROCEDURES
Based upon the parties’ Joint Motion for Extension of Certain Pretrial Deadlines, [DE
62], certain pretrial deadlines are reset.

However, dates for the pretrial conference, oral

arguments, calendar call, and trial of this case remain as previously scheduled. Counsel shall
carefully review and comply with the following requirements concerning the pretrial conference.
Pretrial Conference and Trial Date
1. The parties’ Joint Motion for Extension of Certain Pretrial Deadlines, [DE 62] is
Granted as follows. The pretrial conference is set pursuant to Fed.R.Civ.P. 16 for January 13,
2012 at 2:00 p.m. Unless instructed otherwise by subsequent order, the trial and all other
proceedings shall be conducted at 400 North Miami Avenue, Courtroom 11-1, Miami,
Florida 33128. Pursuant to S.D.Fla.L.R. 16.1(C), each party shall be represented at the pretrial
conference and at the meeting required by S.D.Fla.L.R. 16.1(D) by the attorney who will
conduct the trial, except for good cause shown.

Case 1:09-md-02106-ASG Document 76 Entered on FLSD Docket 05/24/2010 Page 2 of 6

2. Trial is set for the two-week calendar commencing Monday, February 13, 2012.
Counsel for all parties shall appear at a Calendar Call on Wednesday, February 8, 2012 at 1:30
p.m.
Referral
3. Pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the
Southern District of Florida, all discovery pretrial motions in the above-captioned cause, except
all motions for extension of time which could affect the dates set forth below, are hereby referred
to United States Magistrate Judge Bandstra to take all necessary and proper action as required by
law.

This referral shall expire on the date of the pretrial conference. Upon expiration, all

matters pending before the United States Magistrate Judge shall remain before the Magistrate
Judge for resolution, and all new matters shall be filed for consideration by the undersigned.
Mediation
4. The parties shall participate in mediation in accordance with the schedule below. The
appearance of counsel and each party or representative of each party with full settlement
authority is mandatory. If insurance is involved, an adjuster with full authority up to the policy
limits or the most recent demand, whichever is lower, shall attend.
5. All discussions made at the mediation conference shall be confidential and privileged.
6. The mediator shall be compensated in accordance with the standing order of the Court
entered pursuant to Rule 16.2(B)(6), or as agreed to in writing by the parties and mediator. The
parties shall share equally the cost of mediation unless otherwise ordered by the Court. All
payments shall be remitted to the mediator within 30 days of the date of the bill. The parties
shall notify the mediator of cancellation two full business days in advance. Failure to do so will
result in imposition of a fee for one hour.

2

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7. If a full or partial settlement is reached, counsel shall promptly notify the Court of
settlement within ten days of the mediation conference in accordance with Local Rule 16.2(F).
8. Within five days following mediation, the mediator shall file a Mediation Report
indicating whether the parties were present and recommending sanctions for non-attendance.
The Report shall also state whether the case settled (in full or in part), was continued with the
parties’ consent, or whether the mediator declared an impasse.
9. If mediation is not conducted, the case may be stricken from the trial calendar, and
other sanctions may be imposed.
Pretrial Schedule and Pretrial Stipulation
10. All counsel shall comply with S.D.Fla.L.R. 16.1(D) regarding the preparation of the
joint Pretrial Statement. The court will not accept unilateral pretrial stipulations, and will
strike sua sponte, any such submissions. Should any of the parties fail to cooperate in the
preparation of the joint stipulation, all other parties shall file a certification with the court stating
the circumstances. The non-cooperating party may be held in contempt, and sanctions may be
imposed, for failure to comply with the court’s order.
Filing Procedures
11. For the convenience of the parties and the Court, the Clerk will maintain a master
docket with a single docket number and master record under the style: “In re Fontainebleau Las
Vegas Contract Litigation” Master Case No. 09-2106-MD-GOLD/MCALILEY. When a
document is filed and docketed in the master case, it shall be deemed filed and docketed in each
individual case to the extent applicable and will not ordinarily be separately docketed or
physically filed in any individual cases. However, the caption may also contain a notation

3

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indicating whether the document relates to all cases or only to specified cases, as described
below.
All Orders, papers, motions and other documents served or filed in this Consolidated
Action shall bear the same caption as this Order. If the document(s) is generally applicable to all
consolidated actions, the caption shall include the notation: “This Document Relates to All
Actions,” and the Clerk will file and docket the document(s) only in the master record. However,
if a document is intended to apply only to a particular case, the caption shall include the notation
“This Document Relates to [case number of the case(s) to which it applies]”. The original of this
Order shall be filed by the Clerk in each of the Fontainebleau actions pending in this Court and a
copy thereof shall be filed in each subsequently filed or transferred action, which is related to
and consolidated with this action for pretrial purposes. The Clerk of Court will maintain docket
and case files under this caption."
Time Schedule and Requirements
12. The following time schedule shall govern unless modified by court order after a
showing of compelling circumstances (e.g., delay in transfer of tag-along-action). Absent a court
order, a motion to dismiss shall not stay discovery.
DATE

ACTION

By

7-12-2010

Document productions in response to initial Requests for
Production to be completed.

By

8-30-2010

Commencement of fact depositions.

4

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By

9-15-2010

All non-dispositive, non-discovery related pretrial
motions (including motions pursuant to Fed. R. Civ. P.
14, 15, 18 through 22, and 42 motions) shall be filed.
Any motion to amend or supplement the pleadings filed
pursuant to Fed. R. Civ. P. 15(a) or 15(d) shall comport
with S.D. Fla. L.R. 15.1 and shall be accompanied by
the proposed amended or supplemental pleading and a
proposed order as required. When filing nondispositive motions, the filing party must attach a
proposed order to the motion well as emailing the
proposed order to [e-mail]. Failure to
provide the proposed order may result in denial of
the motion without prejudice. Please refer to the
docket entry number on the proposed order. The
Complete CM/ECF Administrative Procedures are
available on the Court’s Website at
www.flsd.uscourts.gov.
Plaintiff shall furnish opposing counsel with a written
list containing the names and addresses of all expert
witnesses intended to be called at trial and only those
expert witnesses so listed shall be permitted to testify.
Defendant shall furnish opposing counsel with a written
list containing the names and addresses of all expert
witnesses intended to be called at trial and only those
expert witnesses so listed shall be permitted to testify.
Final date to exchange written discovery demands,
including Requests for Production, Requests for
Admission and Interrogatories.

By

11-29-2010

By

12-31-2010

By

1-31-2011

By

4-14-2011

Conclusion of fact discovery.

By

5-2-2011

By
By

6-1-2011
7-15-2011

By

7-29-2011

The parties shall comply with S.D. Fla. L.R. 16.1(K)
concerning the exchange of expert witness summaries
and reports. This date shall supersede any other date in
Local Rule 16.1(K).
Rebuttal expert reports shall be filed.
All expert discovery, including depositions, shall be
completed.
All dispositive pretrial motions, including motions to
strike in whole or in part expert testimony, and
memoranda of law must be filed. If any party moves
to strike an expert affidavit filed in support of a
motion for summary judgment [for reasons stated in
Daubert v. Merrill Dow Pharmaceuticals, Inc, 509 U.S.
5

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By

8-30-2011

579, 125 L.Ed. 2d 469, 113 S.Ct. 2786 (1993) and
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S.
137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)], the
motion to strike shall be filed with that party’s
responsive memorandum. Please carefully review the
instructions for filing motions for summary judgment.
Opposition to any dispositive motions to be filed.

By

9-15-2011

Replies, if any, to dispositive motions to be filed.

By

12-13-2011

Pretrial Stipulation and Motions in Limine. The joint
pretrial stipulation shall be filed pursuant to S.D. Fla.
L.R. 16.1(E). In conjunction with the Joint Pretrial
Stipulation, the parties shall file their motions in limine.

ON

11-18-2011 @ 9:00 a.m.

Oral argument will be heard on any motions for
summary judgment that may be filed.

DONE and ORDERED in Chambers in Miami, Florida this 21st day of May, 2010.

THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE

6