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 78 Entered on FLSD Docket 05/25/2010 Page 1 of 4

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
______________________________________/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the Order Granting Motion by
Bilzin Sumberg Baena Price & Axelrod LLP to Withdraw as Counsel of Record for Plaintiff
Fontainebleau Las Vegas, LLC [D.E. #136] (the "Order") were served (a) via U.S. Mail postage
prepaid; or (b) via electronic mail, on May 25, 2010 as set forth on the attached service list, and
via the Court's CM/ECF system upon all registered users via the Court's CM/ECF notification.
In compliance with the Order, the Chapter 7 Trustee and his counsel were each served both by email and by U.S. Mail as set forth below.
BILZIN SUMBERG BAENA PRICE &
AXELROD LLP
Counsel for the Plaintiff Fontainebleau Las
Vegas, LLC
200 South Biscayne Boulevard, Suite 2500
Miami, FL 33131
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]

Case 1:09-md-02106-ASG Document 78 Entered on FLSD Docket 05/25/2010 Page 2 of 4

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
Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
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
John Blair Hutton III, Esq.
Mark D. Bloom, Esq.
GREENBERG TRAURIG
1221 Brickell Avenue
Miami, FL 33131
Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway

2

Case 1:09-md-02106-ASG Document 78 Entered on FLSD Docket 05/25/2010 Page 3 of 4

New York, NY 10019-5820
Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Blvd.
Suite 1500 Miami Center
Miami, FL 33131
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
Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3rd Avenue, Suite 1800
Fort Lauderdale, FL 33301
Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
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
Anthony L. Paccione, Esq.
Arthur S. Linker, Esq
Kenneth E. Noble, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585

3

Case 1:09-md-02106-ASG Document 78 Entered on FLSD Docket 05/25/2010 Page 4 of 4

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

Soneet R. Kapila, Chapter 7 Trustee
Kapila & Company
1000 S. Federal Highway, Suite 200
Ft. Lauderdale, FL 33316
Harley E. Reidel, Esq.
Stichter, Riedel, Blain & Prosser, P.A.
110 East Madison Street, Suite 200
Tampa, FL 33602-4700
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 79 Entered on FLSD Docket 05/28/2010 Page 1 of 31

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-2106-CIV-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
This document applies to:
Case No.: 09-CV-23835-ASG
Case No.: 10-CV-20236-ASG
____________________________________/
MDL ORDER NUMBER EIGHTEEN;1 GRANTING IN PART
AND DENYING IN PART MOTIONS TO DISMISS [DE 35]; [DE 36];
REQUIRING ANSWER TO AVENUE COMPLAINT; CLOSING AURELIUS CASE2
I.

Introduction
THIS CAUSE is before the Court upon the Revolving Lender Defendants’ Motion

to Dismiss [DE 36] and Bank of America’s Motion to Dismiss [DE 35] (“the Motions”).
Responses and replies were timely filed with respect to both motions, see [DE 50]; [DE
52]; [DE 56]; [DE 57], and on May 7, 2010, oral argument was held. I have jurisdiction
pursuant to 12 U.S.C. § 632, as it is undisputed that both actions at issue are “suits of a
civil nature at common law . . . to which [a] corporation organized under the laws of the
United States [is] a party [and which] aris[es] out of transactions involving international or
foreign banking.” Having considered the relevant submissions, the arguments of the
parties, the applicable law, and being otherwise duly advised in the Premises, I grant the
Motions in part and dismiss certain claims for the reasons that follow.
1

Although not labeled as such, MDL Order Number Seventeen appears at [DE 74].

2

All docket entry citations refer to the MDL Master Docket – i.e., Case No.: 09-MD-2106
(S.D. Fla. 2009) – unless otherwise indicated.

1

Case 1:09-md-02106-ASG Document 79 Entered on FLSD Docket 05/28/2010 Page 2 of 31

II.

Relevant Factual and Procedural Background3
Although the facts giving rise to the claims at issue are detailed in my August 26,

2009 Order Denying Fontainebleau’s Motion for Partial Summary Judgment in the
Southern District of Florida Action, see generally Fontainebleau Las Vegas, LLC v. Bank
of America, N.A., 417 B.R. 651 (S.D. Fla. 2009) (“August 26 Order”), I reiterate the relevant
factual background here with citations to the operative complaints4 to ensure that the
record clearly demonstrates that the facts and inferences upon which this Order is
predicated are drawn only from the operative complaints and the referenced undisputed
central documents.
A.

The Credit Agreement and Disbursement Agreement

On June 6, 2007, Fontainebleau Las Vegas LLC and affiliated entities
(“Fontainebleau”) entered into a series of agreements with a number of lenders (“the
Lenders”) for loans to be used for the construction and development of the Fontainebleau
Resort and Casino in Las Vegas, Nevada (“the Project”). (Avenue Compl.5 at ¶ ¶ 113-115);
(Aurelius Compl. at ¶ ¶ 2-4); see generally [DE 37-1] (“Cr. Agr.”); [DE 37-2] (“Disb. Agr.”).

3

For purposes of a motion to dismiss, I take as true all factual allegations in the
operative complaints and limit my consideration to the four corners of the complaints and any
documents referenced in the complaints which are central to the claims. Griffin Industries, Inc.
v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959 (11th Cir. 2009). To the extent the central documents contradict the general and
conclusory allegations of the pleading, the documents govern. See Griffin, 496 F.3d at 1206.
4

See note 5, infra.

5

The operative complaint in the case of Avenue CLO Fund, Ltd.,et al. v. Bank of
America, N.A., et al., Case No.: 09-CV-23835 [DE 84] (S.D. Fla. 2009), will be referred to
throughout as the “Avenue Complaint.” The operative complaint in the case of ACP Master Ltd.
and Aurelius Capital Master, Ltd. v. Bank of America, N.A., et al., Case No.: 10-CV-20236 [DE
27] (S.D. Fla. 2010), will be referred to throughout as the “Aurelius Complaint.”

2

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Among the agreements entered into by Fontainebleau and the Lenders were a Credit
Agreement and a Disbursement Agreement. (Avenue Compl. at ¶ 115); (Aurelius Compl.
at ¶ ¶ 3, 27). It is these two agreements that are the subject of the operative complaints.
In connection with the June 6, 2007 loan transaction, Fontainebleau and the
Lenders entered into a Credit Agreement that provided, among other things, for a syndicate
of lenders to provide three kinds of loans to Fontainebleau: (a) $700 million initial term loan
facility (“the Initial Term Loan”); (b) a $350 million delay draw term loan facility (“the Delay
Draw Term Loan”); and (c) an $800 million revolving loan facility (“the Revolving Loan”).
(Avenue Compl. at ¶ 115); (Aurelius Compl. at ¶ ¶ 23-24); (Cr. Agmt. at 22, 38). The
Plaintiffs proceeding on the Avenue Complaint (“the Avenue Plaintiffs”) are comprised of
certain term lenders that participated in either the Initial Term Loan and/or the Delay Draw
Term Loan. (Avenue Compl. at ¶ ¶ 115, 117). The Plaintiffs proceeding on the Aurelius
Complaint (“the Aurelius Plaintiffs”) are successors-in-interest to certain Term Lenders that
participated in either the Initial Term Loan and/or the Delay Draw Term Loan (Aurelius
Compl. at ¶ ¶ 10, 25).

Both the Avenue and Aurelius Defendants (collectively

“Defendants”) are lenders that agreed to fund certain amounts under the Revolving Loan.
(Avenue Compl. at ¶ ¶ 102-112); (Aurelius Compl. at ¶ ¶ 11-22). In addition to being a
Revolving Lender, Defendant Bank of America also was the Administrative Agent for
purposes of the Credit Agreement. (Cr. Agr. at 8).
While the Initial Term Loan was to be made on the date of closing, (Cr. Agmt. at 22),
the borrowing of funds under the Delay Draw and Revolving Loans prior to the Project’s
opening date was governed by a two-step borrowing process set forth in the Credit and
Disbursement Agreements. (Aurelius Compl. at ¶ 32-33); (Avenue Compl. at ¶ 119). First,
3

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Fontainebleau was required to submit a Notice of Borrowing to the Administrative Agent
(i.e., Bank of America) specifying the requested loans and the designated borrowing date.
(Aurelius Compl. at ¶ 33); (Avenue Compl. at ¶ 119); (Cr. Agmt. § 2.4(a)). Upon receipt
of each Notice of Borrowing, the Administrative Agent was required to notify each lender,
as appropriate, so that each lender could, “subject [] to the fulfillment of the applicable
conditions precedent set forth in Section 5.2 [of the Credit Agreement]” and in accordance
with Section 2.1, make its pro rata share of the requested loans available to the
Administrative Agent on the borrowing date requested by Fontainebleau. (Cr. Agr. § §
2.1(c); 2.4(b)). Then, “[u]pon satisfaction or waiver of the applicable conditions precedent
specified in Section 2.1,” Section 2.4(c) of the Credit Agreement called for the proceeds
of the loans to be “remitted to the Bank Proceeds Account and made available to
[Fontainebleau] in accordance with and upon fulfillment of conditions set forth in the
Disbursement Agreement.”
The second step in the borrowing process concerns Fontainbleau’s access to the
funds remitted to the Bank Proceeds Account and is governed by the Disbursement
Agreement. To access these funds, Fontainebleau was required to fulfill certain conditions
set forth in the Disbursement Agreement – including, but not limited to, the submission of
an Advance Request to Defendant Bank of America as Disbursement Agent – at which
point the loan proceeds would be disbursed in accordance with the Disbursement
Agreement. (Avenue Compl. at ¶ 120); (Aurelius Compl. at ¶ 37); see also (Disb. Agr. §
§ 2.4, 3.3).
However, pursuant to Section 2.5.1 of the Disbursement Agreement,
Fontainebleau’s right to disbursements was not absolute. That section provides that
4

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Defendant Bank of America (as Disbursement Agent) was required to issue a Stop Funding
Notice “[i]n the event that (i) the conditions precedent to an Advance [set forth in Section
3.3 of the Disbursement Agreement] have not been satisfied, or (ii) [Wells Fargo, N.A. or
Bank of America] notifies the Disbursement Agent [Bank of America] that a Default or an
Event of Default has occurred and is continuing . . . .“ (Disb. Agr. § 2.5.1); (Aurelius
Compl. at ¶ 37); (Avenue Compl. at ¶ 124). Under the Disbursement Agreement, the
issuance of a Stop Funding Notice has the effect of preventing disbursements from the
accounts subject to certain waiver provisions and limited exceptions not at issue. (Disb.
Agr. § 2.5.2).
As noted, Defendants’ agreement to make Revolving Loans to Fontainebleau is
governed by Section 2.1(c) of the Credit Agreement. The first sentence of Section 2.1(c)
provides, in pertinent part, that “[s]ubject to the terms and conditions [of the Credit
Agreement],6 each Revolving Lender severally agrees to make Revolving Loans to
[Fontainebleau] provided that . . . unless the Total Delay Draw Commitments have been
fully drawn, the aggregate outstanding principal amount of all Revolving Loans and Swing
Line Loans shall not exceed $150,000,000.” (emphasis in original). The second sentence
of Section 2.1(c) provides that “[t]he making of Revolving Loans which are Disbursement
Agreement Loans shall be subject only to the fulfillment of the applicable conditions set
forth in Section 5.2.” (emphasis in original). Section 5.2 provides, in pertinent part, that
“[t]he agreement of each lender to make [the Revolving Loans at issue here] . . . is subject
only to the satisfaction of following conditions precedent: (a) Borrowers shall have

6

The provision reads “[s]ubject to the terms and conditions hereof.” (Cr. Agr. § 2.1(c)).
Section 1.2 states that “hereof . . . shall refer to this Agreement as a whole.”

5

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submitted a Notice of Borrowing specifying the amount and Type of the Loans requested,
and the making thereof shall be in compliance with the applicable provisions of Section 2
of this Agreement.”7
B.

The March 2009 Notices of Borrowing and Disbursements

On March 2, 2009, Fontainebleau submitted a Notice of Borrowing (“March 2
Notice”) to Defendant Bank of America, as Administrative Agent, that simultaneously
“request[ed]” the entire amount available under the Delay Draw Term Loan (i.e.,
$350,000,000) and the Revolving Loan (i.e., $670,000,000).8 (Aurelius Compl. at ¶ 44);
(Avenue Compl. at ¶ 141). At the time of the March 2, 2009 request, approximately $68
million in Revolving Loans had previously been funded and remained outstanding.
(Aurelius Compl. at ¶ 45); (Avenue Compl. at ¶ 152). On March 3, 2009, Bank of America,
as Administrative Agent, wrote to Fontainebleau rejecting the March 2 Notice, stating that
the March 2 Notice did not comply with Section 2.1(c)(iii) of the Credit Agreement, which
does not allow the aggregate outstanding principal amount of the Revolving Loans to
exceed $150,000,000 unless the Delay Draw Term Loans have been “fully drawn.”
(Aurelius Compl. ¶ ¶ 50-51); (Avenue Compl. at ¶ ¶ 143-45).

On March 3, 2009,

Fontainebleau wrote to Bank of America articulating its position that its March 2, 2009

7

The second and third conditions precedent set forth in Section 5.2 are not relevant to
the claims at bar.
8

The Aurelius Complaint alleges that Fontainebleau issued a Notice of Borrowing
“drawing” the above-referenced loans on March 2, 2009. (Aurelius Compl. ¶ 44). However, the
Notice of Borrowing, which is reproduced in the body of the Complaint, states that
Fontainebleau was “requesting a Loan under the Credit Agreement.” Id. at 11. Where there is
a conflict between allegations in a pleading and the central documents, the contents of the
documents control. See Section III, infra.

6

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Notice complied with the Credit Agreement because “fully drawn” meant “fully requested,”
not “fully funded,” as Bank of America was contending. (Aurelius Compl. at ¶ ¶ 54-55);
(Avenue Compl. at ¶ 141). Thus, according to Fontainebleau, the simultaneous request for
the remainder of the Delay Draw Term Loan and the Revolving Loans complied with the
Credit Agreement because the Delay Draw Term Loans had been “fully drawn” by virtue
of having been “fully requested.” Id.
On March 3, 2009, Fontainebleau issued another Notice of Borrowing (“the March
3 Notice), which was nearly identical to the March 2 Notice, but purported to correct a
“scrivener’s error” in the March 2 Notice by reducing the amount of Revolving Loans
requested from $670,000,000 to approximately $656 million in order to account for
approximately $14 million of Letters of Credit that were outstanding and had not been
considered in connection with the March 2 Notice. (Avenue Compl. at ¶ 141); (Aurelius
Compl at ¶ 56). On March 4, 2009, Defendant Bank of America rejected the March 3
Notice for the same reason it rejected the March 2 Notice (i.e., the Notice, which
simultaneously requested $350,000,000 in Delay Draw Term Loans and Revolving Loans
in excess of $150,000,000 in Revolving Loans, did not comply with Section 2.1(c)(iii)
because the Delay Draw Term loans had not yet been “fully drawn”). (Aurelius Compl. at
¶ 57); (Avenue Comp. at ¶ 144).
In an attempt to remedy the “fully drawn” issue, Fontainebleau issued yet another
Notice of Borrowing on March 9, 2009 (“the March 9 Notice”). (Aurelius Compl. at ¶ 65)
(Avenue Compl. at ¶ 151). The March 9Notice was directed solely to the Delay Draw Term
Loan, requesting the full amount of the $350,000,000 commitment. Id. Despite the fact
that Bank of America “received notice . . . [i]n September and October 2008 that Lehman
7

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[Brothers] fail[ed] to comply with its funding obligations under the Retail Facility” in violation
of Section 3.3.3 of the Disbursement Agreement, Defendant Bank of America did not issue
a “Stop Funding Notice.” (Aurelius Compl. at ¶ ¶ 96-109); (Avenue Compl. at ¶ ¶ 129-133).
Instead, it processed the March 9 Notice and sent it to all the Delay Draw Term Lenders,
advising them that the March Notice complied with the Credit Agreement and that the
Delay Draw Lenders were required to fund. (Aurelius Compl. at ¶ 66); (Avenue Compl. at
¶ 153). Plaintiffs allege that Bank of America “willfully took no action in response to the
notice” regarding Lehman Brothers’ default, “favor[ed] its own interests over those of the
Delay Draw lenders” by failing to issue a Stop Funding Notice, (Aurelius Compl. at ¶ ¶ 109,
151), and failed to act “because it wished to preserve its ongoing business relationship with
the Borrower and its principal indirect owners, including Jeffrey Soffer.” (Avenue Compl.
at ¶ 129-30).
On or about March 10, 2009, Plaintiffs funded their commitments under the Delay
Draw Term Loans. In all, the Delay Draw Term Loan Lenders funded approximately
$337,000,000 of the $350,00,000 Delay Draw Loan.9 (Aurelius Compl. ¶ ¶ at 66-67);
(Avenue Compl. at ¶ 154). Of these Delay Draw Term Loan proceeds, $68,000,000 were
used to repay “then outstanding” Revolving Loans in accordance with Section 2.1(b)(iii) of
the Credit Agreement, of which a twenty-five percent share was attributable to Bank of
America as a Revolving Lender. (Avenue Compl. at ¶ ¶ 152-53). Then, on or about March
25, 2009, Bank of America disbursed more than $100,000,000 of the Delay Draw Term

9

The $13 million financing gap resulted from the failure of certain Delay Draw Term
Lenders to fund their respective portions of the Delay Draw Term Loans in response to the
March 9 Notice. (Avenue Compl. at ¶ 157). This financing gap, however, is irrelevant for
purposes in this Order.

8

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Loan proceeds to Fontainebleau pursuant to an Advance Request submitted on March 25,
2009. (Avenue Compl. at ¶ 165); (Aurelius Compl. at ¶ 124). In addition, on or about
March 23, 2009, Bank of America sent a letter to Fontainebleau regarding the Revolving
Loans; the letter stated that because “almost all of the [Delay Draw Term Loans] have
funded . . . Section 2.1(c)(iii) now permits the Borrower to request Revolving Loans which
result in the aggregate amount outstanding under the Revolving Commitments being in
excess of $150,000,000.” (Aurelius Compl. at ¶ 89); (Avenue Compl. at ¶ 163).
C.

Events Subsequent to the March 25 Advance

On April 20, 2009, Bank of America, “in its capacity as Administrative Agent, sent
a letter to [Fontainebleau], the Lenders and other parties, in which [Bank of America]
advised that . . . [it has been] determined that one or more Events of Default have occurred
and are occurring” and stating that the Revolving Loan commitments were being
”terminated effective immediately“ pursuant to Section 8 of the Credit Agreement (“the
Termination Notice”).

(Aurelius Compl. at ¶ 73); (Avenue Compl. at ¶ ¶ 167-68).

According to Plaintiffs, Bank of America was aware of these Events of Default prior to the
March 25, 2009 Delay Draw Term Loan disbursement, but failed to take appropriate action
(e.g., issuing a Stop Funding Notice). (Aurelius Compl. at ¶ 128); (Avenue Compl. at ¶
167).
On April 21, 2009, Fontainebleau sent a Notice of Borrowing (“the April 21 Notice”)
requesting $710,000,000 under the Revolving Loan facility; this Notice of Borrowing was
not honored. (Aurelius Compl. at ¶ ¶ 71-72); (Avenue Compl. at ¶ 169). Subsequent to
April 21, 2009, the Project was “derailed and the value of the collateral securing Plaintiffs’
loans [was] substantially diminished.” (Avenue Compl. at ¶ 172); (Aurelius Compl. at ¶
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153). Plaintiffs allege that they have been damaged by the derailment of the Project, the
diminution in the value of their collateral, and the purportedly improper March 25
disbursement of Delay Draw Term Loan proceeds; it is further alleged that these damages
were the result of Defendants’ improper failure to fund the March 3, 2009 Notice and Bank
of America’s material breaches of the Credit and Disbursement Agreements. (Aurelius
Compl. at ¶ 151-53); (Avenue Compl. at ¶ 172).
Based on these allegations, the Avenue and Aurelius Plaintiffs filed the instant
lawsuits in June and September 2009, respectively. The Aurelius Complaint asserts two
causes of action. The first is a contract claim against all Defendants for breach of the
Credit Agreement as a result of their failure to fund the Notices of Borrowing submitted on
or about March 2 and 3, 2009. The second claim is also a contract claim for breach of the
Credit Agreement against all Defendants, but is predicated upon Defendants’ failure to
fund the April 21, 2009 Notice of Borrowing. The Avenue Complaint, on the other hand,
asserts six causes of action: the first is for breach of the Disbursement Agreement against
Bank of America; the second is for breach of the Credit Agreement against all Defendants;
the third asserts that Bank of America breached the implied covenant of good faith and fair
dealing by favoring its own interests and those of the Revolving Lenders (including itself)
over those of the Term Lenders and failing to communicate with the Term Lenders
regarding Events of Default; the fourth alleges that all Defendants breached the implied
covenant of good faith and fair dealing by adopting a contrived construction of the Credit
Agreement in order to justify their refusal to fund the March 2 and 3 Notices; and finally,
the fifth and sixth counts request declaratory relief regarding the parties’ rights and
obligations vis-a-vis the Credit and Disbursement Agreements. Pursuant to Rule 12(b)(6),
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Defendants now request dismissal of Plaintiffs’ breach of contract and implied covenant
claims. See [DE 35]; [DE 36].
D.

The Southern District of Florida Action and the Current MDL Proceedings

When Fontainebleau’s project was derailed in Spring 2009, Fontainebleau filed a
voluntary Chapter 11 petition in the United States Bankruptcy Court for the Southern
District of Florida. On the same day that Fontainebleau filed for bankruptcy protection, it
commenced an adversary proceeding against the Revolving Lenders (including Bank of
America) seeking, among other things, a ruling requiring the Revolving Lenders to “turn
over” the approximately $657 million requested via the March 3 Notice to the bankruptcy
estate in pursuant to 11 U.S.C. § 542(b) (“the Florida Action”). On June 9, 2009,
Fontainebleau filed a Motion for Partial Summary Judgment in the Bankruptcy Court as to
its turnover claim, and on June 16, 2009, Defendants filed a Motion to Withdraw the
Reference pursuant to 28 U.S.C. § 157(d). On August 4, 2009, I granted Defendants’
Motion to Withdraw the Reference in the Florida Action. After permitting the Term Lenders
to file an amicus brief, I denied Fontainebleau’s motion for partial summary judgment,
concluding as a matter of law that, for purposes of the Credit Agreement, “fully drawn”
unambiguously means “fully funded.” Fontainebleau Las Vegas, LLC v. Bank of America,
N.A., 417 B.R. 651, 660 (S.D. Fla. 2009).10

10

Alternatively, I noted that “even if my conclusion that ‘fully drawn’ unambiguously
means ‘fully funded’ is in error . . . [Fontainebleau’s] reasoning at best suggests that its
interpretation is a reasonable one, but not the conclusive one, and requires the denial of partial
summary judgment.” Id. at 661. I further noted that “[e]ven if [Fontainebleau] is correct that the
term ‘fully drawn’ unambiguously means ‘fully requested,’ I am persuaded by Defendants'
arguments that they were entitled to reject the March 2 Notice on the basis of Plaintiffs default”
and found there to be “genuine issue[s] of material fact as to whether Borrower was in default
as of March 3, 2009.” Id. at 663-65.

11

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In December 2009, the Joint Panel on Multi-District Litigation (“the Panel”) heard the
Avenue Plaintiffs’ motion for centralization of their lawsuit and the Florida Action in the
Southern District of New York. Defendants and the Aurelius Plaintiffs objected, requesting
that the suits be transferred to the Southern District of Florida for pre-trial proceedings.
After considering the parties’ positions, the Panel issued an Order finding “that
centralization under Section 1407 in the Southern District of Florida will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of the
litigation.” In re: Fontainebleau Las Vegas Contract Litigation, 657 F. Supp. 2d 1374, 1375
(J.P.M.L. 2009). Following the issuance of the Panel’s Order, the Avenue Action was
transferred to me for pre-trial proceedings. Approximately one month later, the Aurelius
Action was also transferred to me as a “tag-along” action in accordance with the Panel’s
directive. Id. at 1374 n.2. As the MDL judge, I now consider the instant motions to
dismiss. See Rule 7.6, R.P.J.P.M.L. (providing that transferee district court may hear and
enter judgment upon a motion to dismiss).
III.

Standard of Review

For purposes of deciding a motion to dismiss, my review is limited to the four
corners of the operative complaint and any documents referred to therein that are central
to the claims at issue. Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007);
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (noting that district courts “may consider a
document attached to a motion to dismiss without converting the motion into one for
summary judgment if the attached document is (1) central to the plaintiff's claim and (2)

12

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undisputed”). Where there is a conflict between allegations in a pleading and the central
documents, it is “well settled” that the contents of the documents control. Griffin, 496 F.3d
at 1206 (quoting Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940)).
Thus, only the contents of the operative complaints and the undisputed central documents
will be considered for purposes of this Order.
In determining whether to grant Defendants’ motions to dismiss, I must accept all
the factual allegations11 in the complaints as true and evaluate all reasonable inferences
derived from those facts in the light most favorable to the Plaintiffs. Hill v. White, 321 F.3d
1334, 1335 (11th Cir. 2003); Hoffend v. Villa, 261 F.3d 1148, 1150 (11th Cir. 2001).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader[s] are entitled to relief,’ in order to ‘give the defendant[s] fair
notice of what the . . . claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1959 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47, 78 S.Ct. 99, 103 (1957)). “Of course, ‘a formulaic recitation of the elements
of a cause of action will not do.’” Watts v. Fla. Int’l. Univ., 495 F.3d 1289, 1295 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 555). “While Rule 12(b)(6) does not permit dismissal
of a well-pleaded complaint simply because it strikes a savvy judge that actual proof of
those facts is improbable, the factual allegations must be enough to raise a right to relief
above the speculative level.” Watts, 495 F.3d at 1295 (citing Twombly, 550 U.S. at 555)
(internal quotation marks omitted)). In other words, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
11

Legal conclusions, on the other hand, need not be accepted as true. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009).

13

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that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff[s] plead[]
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. It follows that “where the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged – but it has not ‘show[n] ’ – ‘that the pleader is entitled to relief.’ ” Id. at 1950
(quoting Fed.R.Civ.P. 8(a)(2)).
IV.

Analysis

A.

Breach of Credit Agreement – Counts I and II of the Aurelius Complaint;
Count II of the Avenue Complaint
1.

Plaintiffs Lack Standing to Assert Claims for Failure to Fund

In support of their request for dismissal, Defendants contend that Plaintiffs lack
standing to pursue claims based on Defendants’ alleged breaches of the Credit
Agreement. I agree. “Standing is a threshold jurisdictional question which must be
addressed prior to and independent of the merits of a party's claims.” Bochese v. Town
of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quoting Dillard v. Baldwin County
Comm'rs, 225 F.3d 1271, 1275 (11th Cir. 2000)). Absent an adequate showing of
standing, “a court is not free to opine in an advisory capacity about the merits of a plaintiff's
claims.” Id. The burden of establishing standing is on the Plaintiffs. Id. at 976; see also
AT&T Mobility, LLC v. National Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1357, 1360
(11th Cir. 2007)
Pursuant to Article III of the United States Constitution, Plaintiffs “must establish that
[they] ha[ve] suffered an injury in fact” to have standing to challenge Defendants’ failure
14

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to fund under the Credit Agreement.12 AT&T Mobility, 494 F.3d at 1360 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “To establish injury in fact, [Plaintiffs]
must first demonstrate that [Defendants] ha[ve] invaded a legally protected interest derived
by [Plaintiffs] from the [Credit] Agreement between [Plaintiffs] and [Defendants].” Id.
(citation and internal quotation marks omitted). The question of whether, for standing
purposes, Plaintiffs have “a legally enforceable right” with respect to a contractual covenant
is a matter of state law. Id. (citation omitted); see also Mid-Hudson Catskill Rural Migrant
Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 173 (2d Cir. 2005) (Sotomayor, J.) (citing
various cases applying state law to determine whether parties had standing to sue for
breach of contract). Accordingly, I must look to New York law13 to determine whether
Plaintiffs have standing to assert claims for breach of the Credit Agreement based on
Defendants’ failure to fund the Revolving Loans pursuant to the March and April Notices

12

I recognize the parties’ position that having “standing” to sue for a breach of a
contractual promise is distinct from the concept of Article III standing. [MTD Hr’g Tr. 3:25 p.m.,
May 7, 2010] (“I have always just thought of this as having been innocently mislabeled. I agree
with [defense counsel] that when they said standing, what they really meant was the term
lenders don’t have any contractual right”). While there is case law supporting this contention,
the Eleventh Circuit treats the question of whether a party has a “legally enforceable right” with
respect to a contractual promise as an Article III issue. AT&T Mobility, LLC v. National Ass’n for
Stock Car Auto Racing, Inc., 494 F.3d 1357, 1360 (11th Cir. 2007); Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 975-980 (11th Cir. 2005). Accordingly, I treat is as such. I emphasize,
however, that this distinction has no bearing on the motions at bar, for Plaintiffs’ contract claims
must fail if they lack standing, regardless of how the standing issue is framed.
13

At oral argument, the parties agreed that the question of whether Plaintiffs have a
legal right to enforce the Revolving Lenders’ promise to fund the loans at issue must be
determined pursuant to New York law. [MTD Hr’g Tr. 3:25 p.m., May 7, 2010]. In determining
and applying the law of New York, I must follow the decisions of the state's highest court, and in
the absence of such decisions on an issue, must adhere to the decisions of the state's
intermediate appellate courts, unless there is some persuasive indication that the state's
highest court would decide the issue otherwise. See Best Van Lines, Inc. v. Walker, 490 F.3d
239, 245 n. 9 (2d Cir. 2007).

15

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of Borrowing. (Cr. Agr. § 10.11) (stating that “rights and obligations of the parties under
this agreement shall be governed by, and construed and interpreted in accordance with the
law of the State of New York”).
Under New York contract law, “[a] promise in a contract creates a duty in the
promisor to any intended beneficiary to perform the promise, and the intended beneficiary
may enforce the duty”; thus, only intended beneficiaries of a promise “ha[ve] the right to
proceed against the promisor” for breach of said promise.14 Restatement (Second) of
Contracts § 304 (1979); Hamilton v. Hertz Corp., 498 N.Y.S. 2d 706, 709 (N.Y. Sup. Ct.
1986) (citing Restatement (Second) of Contracts § 304 (1979)). This well-established rule
applies with equal force to both bipartite and multipartite agreements. See Berry Harvester
v. Walter A. Wood Mowing & Reaping Machine Co., 152 N.Y. 540, 547 (N.Y. 1897)
(holding that a plaintiff may not enforce every promise contained in a multipartite
agreement; rather, the specific promise a plaintiff seeks to enforce must have been
intended for the plaintiff’s benefit). Thus, in the context of a multipartite contract, “the mere
fact that [Plaintiffs] signed the agreement is not controlling; they may have enforceable
rights under some of its provisions and not have enforceable rights under other provisions.”
Alexander v. United States, 640 F.2d 1250, 1253 (Ct. Cl. 1981) (finding that party to
agreement was not an intended beneficiary of a certain promise and therefore had no legal
right to enforce that promise and noting that Berry Harvester is a “leading case” on the
subject). In such cases, the “critical inquiry is whether the parties to the agreement

14

While the Plaintiffs and Defendants disagree as to whether Plaintiffs were intended
beneficiaries of the Revolving Lenders’ promise to fund, both sides appear to agree that one
must be an intended beneficiary of a promise in order to have a legal right to enforce it. [MTD
Hr’g Tr. 3:35 p.m. - 3:38 p.m.].

16

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intended to give [Plaintiffs] the right to enforce” the promise at issue at issue.15 Hence, in
order to have standing to sue Defendants’ for failure to fund the Revolving Loans, Plaintiffs
must adequately demonstrate that they are “intended beneficiaries” of Defendants’ promise
to fund the Revolving Loans under the Credit Agreement.
The question of whether a party is an intended or incidental beneficiary of a
particular contractual promise can be determined “as a matter of law” based on the parties’
intentions as expressed in the operative agreement. See generally Fourth Ocean Putnam
Corp. v. Interstate Wrecking Co., Inc., 66 N.Y. 2d 38 (N.Y. 1985) (affirming lower court’s
determination that, as a matter of law, party was not an intended beneficiary); see also
Berry Harvester, 152 N.Y. at 547 (“whether the right or privilege conferred by the promise
of one party to a tripartite contract belongs to one or both of the other contracting parties

15

Although this argument was not raised in its opposition papers, counsel for the
Aurelius Plaintiffs asserted at oral argument that Section 260 of New York Jurisprudence
(Second) Contracts and Section 297 of the Restatement (Second) of Contracts support the
conclusion that all parties to a multipartite agreement are presumed to have a right to enforce
every promise contained therein unless a party’s right to enforce “is specifically severed.” [MTD
Hr’g Tr. 3:38 p.m.]. Having reviewed these sections, I reject this contention and note that
Plaintiffs appear to have conflated two distinct concepts in advancing this argument: the first is
whether a party has a legal right to enforce a particular promise; the second is whether the right
to enforce a particular promise is held jointly or severally by multiple parties. The issue here is
not whether Plaintiffs and Fontainebleau have a “joint” or a “several” (i.e., separately
enforceable) right to enforce the Revolving Lenders’ promise to fund; rather, the question is
whether Plaintiffs have any right whatsoever to enforce that promise. With respect to this
issue, it is clear that the Berry Harvester test controls – i.e., “[w]hether the right or privilege
conferred by the promise of one party to a tripartite contract belongs to one or both of the other
parties depends upon the intention of the parties; the mere fact that there are three parties to
the contract does not enlarge the effect of any promise, except as it may extend the advantage
to two persons instead of one where that is the intention.” 22 N.Y. Jur. 2d Contracts § 260
(2010) (citing Berry Harvester v. Walter A. Wood Mowing & Reaping Machine Co., 152 N.Y.
540 (N.Y. 1897)).

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depend upon the intention as gathered from the words used . . .”).16 If the contractual
language is ambiguous, however, courts may consider the contractual language “in light
of the surrounding circumstances” in order to discern the intention of the parties. Berry
Harvester, 152 N.Y. at 547.
Traditionally, New York law held that “the absence of any duty . . . to the beneficiary
[vis-a-vis a particular promise]. . . negate[d] an intention to benefit” the beneficiary. Fourth
Ocean, 66 N.Y. 2d at 44-45. However, as New York’s highest court has noted, that
requirement “has been progressively relaxed.” Id. (citation omitted). Today, the rule is that
a beneficiary can establish that he has standing to enforce a particular promise “only if no
one other than the [beneficiary] can recover if the promisor breaches the [promise] or the
contract language . . . clearly evidence[s] an intent to permit enforcement by the
third-party.” Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 651 F. Supp. 2d
155, 172 (S.D.N.Y. 2009) (citations and internal quotation marks omitted) (emphasis
added); see also Fourth Ocean, 66 N.Y. 2d at 45 (concluding that a third party to a promise
can enforce the promise if “no one other than the third party can recover if the promisor
breaches or that the language of the contract otherwise clearly evidences an intent to
permit enforcement by the third party”) (emphasis added).
Here, there is no ambiguity with respect to the promise at issue, which states that

16

The fact that some of the cases cited involve third-party beneficiaries that were not
actually “parties” to the written agreements at issue does not render the cases inapposite. As I
have already explained, it is the intent of the parties with respect to the individual promise at
issue that is critical. See Berry Harvester, 152 N.Y. at 547 (“any party . . . may insist upon the
performance of every promise made to him, or for his benefit, by the party or parties who made
it”). For example, in a tripartite contract setting where A makes an enforceable promise to B
that is expressly intended for the benefit of C, C is a “third-party beneficiary” of that promise
notwithstanding the fact that he, she, or it is technically a “party” to the written agreement.

18

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“each Revolving Lender severally agrees to make Revolving Loans to Borrowers from time
to time during the Revolving Commitment Period.” (Cr. Agr. § 2.1(c)) (emphasis added).
This promise creates a duty on the part of Defendants to make loans to Fontainebleau in
accordance with the Credit Agreement; it does not establish a duty to the Plaintiffs here or
“clearly evidence an intent to permit enforcement by [Plaintiffs].” Fourth Ocean, 66 N.Y.
2d at 45. Additionally, it is not the case that “no one other than [Plaintiffs] can recover if
[Defendants] breache[d],” id., as Fontainebleau would unquestionably be able to recover
if it were able to prove that it suffered damages as a result of Defendants’ material breach
of the Credit Agreement. While I recognize that “the full performance of [Defendants’
purported obligation to fund the Revolving Loans] might ultimately benefit [Plaintiffs],” this,
at best, establishes that Plaintiffs were “incidental beneficiaries” of Defendants’ promise
to Fontainebleau to make Revolving Loans. Fourth Ocean, 66 N.Y. 2d at 45; see also
Salzman v. Holiday Inns, Inc., 48 N.Y.S. 2d 258, 261 (N.Y. App. Div. 4th Dept. 1975)
(finding Holiday Inns, an interim lender, to be an incidental beneficiary of financing
agreement between plaintiff and permanent lender because agreement called for the
permanent lender to pay money to plaintiff, not Holiday Inns, and further noting that “the
typical case of an incidental beneficiary is where A promises B to pay him money for his
expenses [and] Creditors of B (though they may incidentally benefit by the performance
of A's promise) are not generally allowed to sue A”) (citation and internal quotation marks
omitted).17

17

Plaintiffs cite to Deutsche Bank AG v. J.P. Morgan Chase Bank, 2007 U.S. Dist.
LEXIS 71933 (S.D.N.Y. Sept. 27, 2007), in support of the contention that they have a legally
enforceable right in Defendants’ promise to fund the Revolving Loans. This case fails to
buttress Plaintiffs’ position regarding standing, as it involved claims for declaratory relief, not

19

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Because New York law requires that one be an “intended beneficiary” of a particular
promise in order to have a legal right to enforce that promise, and because Plaintiffs have
failed to adequately demonstrate that they were “intended beneficiaries” of Defendants’
promise to fund the Revolving Loans at issue, Counts I and II of the Aurelius Complaint
and Count II of the Avenue Complaint must be dismissed with prejudice.18
2.

Even if Plaintiffs Had Standing to Enforce Defendants’ Promises to
Fund, Defendants Were Not Obligated to Fund the March Notices
of Borrowing

Even if Plaintiffs had standing to enforce Defendants’ promises to fund the
Revolving Loans at issue, Plaintiffs have not demonstrated that Defendants breached the
Credit Agreement by rejecting the March Notices of Borrowing because: (1) “fully drawn,”
as used in Section 2.1(c)(iii) of the Credit Agreement, unambiguously means “fully funded”;
and (2) the Delay Draw Term Loans had not been “fully drawn” at the time Fontainebleau
submitted the March Notices of Borrowing.
Under New York law, a breach of contract claim “cannot withstand a motion to
dismiss if the express terms of the contract contradict plaintiff[s’] allegations of breach.”
Merit, No. 08-CV-3496, 2009 WL 3053739, *2 (S.D.N.Y. Sept. 24, 2009) (citing 805 Third
Ave. Co. v. M.W. Realty Assocs., 58 N.Y. 2d 451, 447 (N.Y. 1983)). Thus, courts are not

breach of contract – claims that have different requirements with respect to standing than the
contract claims at bar. Deutsche Bank, 2007 U.S. Dist. LEXIS 71933, * 5 (noting that parties
were only seeking “declaration[s]”); compare Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006)
(discussing standing requirements in declaratory relief actions) with Alexander v. United States,
640 F.2d 1250, 1253 (Ct. Cl. 1981) (discussing standing requirements in context of multi-party
contracts). Thus, contrary to Plaintiffs’ contention, the Deutsche Bank court did not sub silentio
conclude that lenders are intended beneficiaries of other lenders’ promises to fund a borrower’s
loans.
18

See Section V, infra (explaining why the dismissal is with prejudice).

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required to “accept the allegations of the complaint as to how to construe” the agreement
at issue. Merit, 2009 WL 3053739, *2. Instead, courts must enforce written agreements
according to the “plain meaning” of their terms. Greenfield v. Philles Records, 98 N.Y. 2d
562, 569 (N.Y. 2002). When interpreting the meaning of contractual provisions, courts are
generally required to “discern the intent of the parties to the extent their intent is evidenced
by their written agreement.” Int’l Klafter Co. v. Cont. Cas. Co., 869 F.2d 96, 100 (2d Cir.
1989) (citing Slatt v. Slatt, 64 N.Y. 2d 966, 967 (N.Y. 1985)). Thus, “[i]n the absence of
ambiguity, the intent of the parties must be determined from their final writing and no parol
evidence or extrinsic evidence is admissible.” Id. (emphasis added) (citation omitted).
However, “[e]xtrinsic evidence of the parties' intent may be considered . . . if the agreement
is ambiguous, which is an issue of law for the courts to decide.” Greenfield, 98 N.Y. 2d at
569.
Whether an agreement is “ambigu[ous] is determined by looking within the four
corners of the document, not to outside sources.” Kass v. Kass, 91 N.Y. 2d 554, 556 (N.Y.
1998) (citation omitted).19 “Consequently, any conceptions or understandings any of the
19

Plaintiffs urge me to consider the manner in which the word “drawn” is generally used
in New York statutory and case law in order to discern the intended meaning of the phrase “fully
drawn,” citing to Hugo Boss Fashions, Inc. v. Fed Ins. Co., 252 F.2d 608, 617-18 (2d Cir. 2001)
for the proposition that “an established definition provided by state law or industry usage will
serve as a default rule . . . unless the parties explicitly indicate, on the face of their agreement,
that the term is to have some other meaning.” However, as the Second Circuit noted in the
sentence preceding the quote excerpted by Plaintiffs, “widespread custom or usage serves to
determine the meaning of a potentially vague term,” not an unambiguous one. Id. (emphasis
added). Because the Credit Agreement unambiguously establishes that “fully drawn” means
“fully funded,” I decline to consider “extrinsic evidence” such as custom, industry usage, or the
parties’ course of dealing. Int’l Klafter Co. v. Cont. Cas. Co., 869 F.2d at 100; see also [DE 50]
(noting in their opposition to Defendants’ Joint Motion to Dismiss that “Term Lenders agree . . .
that the parties’ course of dealing is not an appropriate consideration in determining, on a
motion to dismiss, whether it is reasonable to interpret “drawn” to mean “demanded”).
However, it does bear mentioning that even the cases cited by Plaintiffs indicate that, in the

21

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parties may have had during the duration of the contracts is immaterial and inadmissible.”
Int’l Klafter Co., 869 F.2d at 100. Under New York law, “[t]he test for ambiguity is whether
an objective reading of a term could produce more than one reasonable meaning.”
McNamara v. Tourneau, Inc., 464 F. Supp. 2d 232, 238 (S.D.N.Y. 2006) (citing Collins v.
Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002)). Thus, “[a] party . . . may not create
ambiguity in otherwise clear language simply by urging a different interpretation.” Id. (citing
Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir. 1990)).
As I noted in my August 26 Order, a review of the Credit Agreement in its entirety
reveals no ambiguity as to the meaning of the term “fully drawn”; to the contrary, an
objective and plain reading of the agreement establishes that “fully drawn” in Section
2.1(c)(iii) means “fully funded,” and not “fully requested” or “fully demanded,” as Plaintiffs
suggest.

In re Fontainebleau Las Vegas Holdings, LLC, 417 B.R. at 660.20

This

conclusion comports not only with the plain language of the Credit Agreement, but also
with the “structure of the lending facilities, as discerned from the Credit Agreement itself,
[which] reflects the parties’ intent to employ a sequential borrowing and lending process
that places access to Delay Draw Term Loans ahead of Revolving Loans when the amount

context of term loans, “draw” means “fund,” as compared to “request” or “demand.” See e.g.,
Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 2009 WL 2163483, *1,
*14 (N.Y. Sup. Ct. July 17, 2009) (concluding that Destiny Holdings was entitled to preliminary
injunction requiring Citigroup to fund “pending draw requests,” thus indicating that draw means
“fund” or “funding” and not “request” or “demand”), aff’d as modified on other grounds, 889
N.Y.S. 2d 793 (N.Y. App. Div. 4th Dept. 2009).
20

While it could be argued that the doctrine of “nonparty preclusion” should apply to
preclude Plaintiffs from relitigating the meaning of “fully drawn” given that they filed an amicus
brief in the Florida Action regarding the very same issue, this doctrine was not raised by the
Plaintiffs and I decline to apply it sua sponte. See Griswold v. County of Hillsborough, 598 F.3d
1289, 1292 (11th Cir. 2010) (clarifying doctrine of nonparty preclusion in light of recent
Supreme Court decisions on the subject).

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sought under the Revolving Loan facility was in excess of $150 million.” Id. at 660.
To support their argument that my prior ruling regarding the unambiguous meaning
of “fully drawn” was erroneous, Plaintiffs proffer various hypotheticals purporting to
demonstrate that interpreting “fully drawn” to mean “fully funded” would lead to patently
unreasonable results that could not have been intended by the parties to the Credit
Agreement. Such arguments are not relevant or proper, for “[a]n ambiguity does not exist
by virtue of the fact that one of a contract's provisions could be ambiguous under some
other circumstances.” Bishop v. National Health Ins. Co., 344 F.3d 305, 308 (2d Cir.
2003). To the contrary, contract law is clear insofar as “a court must look to the situation
before it, and not to other possible or hypothetical scenarios” when considering a contract
in order to determine whether an ambiguity exists. Id.; Donoghue v. IBC USA
(Publications), Inc., 70 F.3d 206, 215-16 (1st Cir. 1995) (noting that “a party claiming to
benefit from ambiguity . . . must show ambiguity in the meaning of the agreement with
respect to the very issue in dispute . . . [because] courts consider contentions regarding
ambiguity or lack of ambiguity not in the abstract and not in relation to hypothetical disputes
that a vivid imagination may conceive but instead in relation to concrete disputes about the
meaning of an agreement as applied to an existing controversy”).21
21

Even if I were to consider Plaintiffs’ hypotheticals, it would not alter my conclusion
regarding the meaning of “fully funded,” as the proffered hypotheticals fail to account for critical
provisions of the Credit Agreement. For example, the hypothetical set forth in Paragraph 43 of
the Aurelius Complaint ignores the existence of Section 5.2(c), entitled “Drawdown Frequency,”
which vests the Administrative Agent (i.e., Bank of America) with broad discretion to permit
Disbursement Agreement loans to be made more frequently than once every calendar month.
If Bank of America were to arbitrarily withhold its consent in such a scenario, it would be
exposing itself to a potential claim for breach of the implied covenant of good faith and fair
dealing. Dalton v. Educational Testing Service, 87 N.Y. 2d 384, 389 (N.Y. 1995) (noting that
where a “contract contemplates the exercise of discretion, [the implied covenant of good faith]
includes a promise not to act arbitrarily or irrationally in exercising that discretion”).

23

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In sum, having considered the arguments of the parties regarding the meaning of
“fully drawn,” I conclude, for the reasons set forth above, as well as those set forth in my
August 26 Order – which I expressly incorporate by reference into this Order – that the
plain language, purpose, and structure of the Credit Agreement leads to the inexorable
conclusion that “fully drawn” unambiguously means “fully funded” for purposes of Section
2.1(c)(iii) of the Credit Agreement.22 Accordingly, even if my conclusion that Plaintiffs lack
standing is in error, Plaintiffs’ claims for failure to fund the March Notices of Borrowing fail
as a matter of law because Defendants had no obligation to make Revolving and Swing
Line Loans in excess of $150,000,000 until: (a) the Delay Draw Term Loans were fully
funded; or (b) the provisions of Section 2.1(c)(iii) were validly waived.
B.

Breach of the Disbursement Agreement Against Bank of America – Count
I of the Avenue Complaint

In addition to the Credit Agreement claim discussed above, the Avenue Plaintiffs

22

While I recognize that “[i]t is reasonable to assume that the same words used in
different parts of the instrument are used in the same sense,” it is beyond dispute that the very
same terms can have different meanings for purposes of a single agreement where “a different
meaning is indicated” by the agreement itself. Johnson v. Colter, 297 N.Y.S. 345 (N.Y. App.
Div. 4th Dept. 1937) (citation omitted). This is especially true in the context of agreements
spanning hundreds of pages that cover varying topics. For example, the word “draw” might
have a different meaning when used to refer to “drawing” on a letter of credit than when used in
reference to “drawing” on different sources of information, “drawing” on a chalkboard, or having
“drawn” on a revolving credit facility. Thus, I emphasize that I am not concluding that “draw”
must always mean “fund” for purposes of the Credit and Disbursement Agreements. Instead,
my conclusion is limited to the meaning of “fully drawn” for purposes of Section 2.1(c)(iii).
However, I note that a review of other relevant provisions appears to buttress my conclusion
that, in the context of Term Loans and Revolving Loans, “fully drawn” unambiguously means
“fully funded.” For example, Section 5.2(c), entitled “Drawdown Frequency,” provides that
Disbursement Agreement loans “shall be made no more frequently than once every calendar
month.” (emphasis added). Thus, this provision, which regulates the frequency of “drawdowns”
vis-a-vis Revolving and Term Loans, indicates that a “drawdown” is the equivalent of “making”
(i.e., funding) a Revolving or Delay Draw Term Loan, and not a “request” or “demand” for such
a loan.

24

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also assert a number of other claims against Defendants, including a contract claim against
Bank of America for breach of the Disbursement Agreement. In order to state a claim for
breach of contract under New York law,23 a Plaintiff must adequately allege: (1) the
existence of a contract, (2) the plaintiff's performance under the contract, (3) the
defendant's breach of that contract, and (4) resulting damages. JP Morgan Chase v. J.H.
Elec. of New York, Inc., 893 N.Y.S. 2d 237, 239 (N.Y. App. Div. 2d Dept. 2010). Here,
Defendant Bank of America does not dispute the existence of a contract, Plaintiffs’
performance, or resulting damages. Instead, Bank of America argues that Plaintiffs have
failed to adequately allege a breach of the Disbursement Agreement.
In considering Bank of America’s argument, I start with Section 2.5.1 of the
Disbursement Agreement, which requires Bank of America to issue a Stop Funding Notice
“[i]n the event that [] the conditions precedent to an Advance have not been satisfied.” The
conditions precedent to an Advance are set forth in Section 3.3 of the Disbursement
Agreement. One of the conditions set forth in Section 3.3 is that “[n]o Default or Event of
Default shall have occurred and be continuing.” (Disb. Agr. § 3.3.3). The term “Default”
is specifically defined in the Disbursement Agreement as “(i) any of the events specified
in Article 7 . . . and (ii) the occurrence of any ‘Default’ under any Facility Agreement.”
(Disb. Agr., Ex. A at 10). “Facility Agreement” is also specifically defined in the Agreement
as “the Bank Credit Agreement, the Second Mortgage Indenture and the Retail Facility
Agreement.” Id. at 12.
In Paragraphs 129-132 of the Avenue Complaint, the Avenue Plaintiffs allege

23

Like the Credit Agreement, the Disbursement Agreement also contains a New York
choice-of-law clause. (Disb. Agr. § 11.6).

25

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specific facts supporting the reasonable inference that Bank of America, as Disbursement
Agent, received notice from a lender in Fall 2008 that Lehman Brothers defaulted under
the Retail Facility Agreement and yet failed to issue a Stop Funding Notice. Defendant
Bank of America does not dispute this. Instead, Bank of America argues that: (1) the claim
is insufficient because the Avenue Plaintiffs’ “fail[ed] to attach th[e] purported ‘notice’ or
even identify the lender who sent the alleged communications”; and (2) pursuant to Section
9.3.2 of the Disbursement Agreement, Bank of America was “entitled to rely on
certifications from [Fontainebleau] as to satisfaction of any requirements and/or conditions
imposed by th[e] [Disbursement Agreement].” [DE 35, pp. 10, 13]. I reject Bank of
America’s first argument, for at the Rule 12(b)(6) stage, I must accept all of Plaintiffs’
factual allegations in the complaints as true – i.e., Plaintiffs need not support their factual
allegations with documentary evidence at this stage of the proceedings. See Hill, 321 F.3d
at 1335. Bank of America’s second argument also fails, as there are no allegations on the
face of the Avenue Complaint establishing that Fontainebleau “certif[ied]” that Lehman
Brothers had not defaulted under the Retail Facility Agreement.24 While it can certainly be
inferred that such representations were made given that Fontainebleau submitted various
Advance Requests subsequent to the Fall of 2008, inferences of this nature are not
appropriately drawn at this stage. To the contrary, it is well-settled that I must evaluate all
reasonable inferences in favor of the Plaintiffs. Wilson v. Strong, 156 F.3d 1131, 1133
(11th Cir. 1998). Because the Avenue Complaint adequately alleges facts supporting

24

At oral argument, I asked whether there is “anything that anyone could point to in the
complaint one way or the other that refers to Fontainebleau affirmatively certifying that there
was no default”; counsel for Bank of America was unable to reference any such allegation.
[MTD Hr’g Tr. 04:19 p.m.].

26

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Plaintiffs’ claim that Bank of America knew of Lehman Brothers’ default under the Retail
Financing Agreement and failed to issue a Stop Funding Notice in violation of the
Disbursement Agreement, Count II of the Avenue Complaint will not be dismissed.
C.

Breach of the Implied Covenant of Good Faith and Fair Dealing Against
Bank of America – Count III of the Avenue Complaint

Count III of the Avenue Complaint asserts that Bank of America breached the
implied covenant of good faith and fair dealing when it “improperly approved Advance
Requests, issued Advance Confirmation Notices, failed to issue Stop Funding Notices, []
caused the disbursement of funds from the Bank Proceeds Account; and [] fail[ed] to
communicate information to the Term Lenders regarding Events of Default that were
known o[r] should have been known to [Bank of America].” (Avenue Compl. at ¶ 192).
While it is well-settled that breach of the implied covenant of good faith gives rise
to a stand-alone cause of action under New York law, see Granite Partners, L.P. v. Bear,
Stearns & Co., 17 F. Supp. 2d 275, 305 (S.D.N.Y. 1998) (noting that “[b]reach of the [good
faith] covenant gives rise to a cognizable claim”), it is equally settled that “New York law
. . . does not recognize a separate cause of action for breach of the implied covenant of
good faith and fair dealing when a breach of contract claim, based upon the same facts,
is also pled.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002).
In their opposition papers, the Avenue Plaintiffs acknowledge this rule, but contend that it
does not apply because its implied covenant claim is predicated, in part, upon the factual
allegation that Bank of America “failed to communicate information regarding defaults,”
while its Disbursement Agreement claim is not. [DE 52]. This argument is not a novel one,
and has been roundly rejected by New York courts. Alter v. Bogoricin, No. 97-CV-0662,
27

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1997 WL 691332, *1, *7-*8 (S.D.N.Y. Nov. 6, 1997) (rejecting similar argument, dismissing
implied covenant claim, and noting that it has been observed that "every court faced with
a complaint brought under New York law and alleging both breach of contract and breach
of a covenant of good faith and fair dealing has dismissed the latter claim as duplicative”).
The critical inquiry in this respect is not whether the two claims are founded upon
identical facts, but whether the relief sought by Plaintiffs “is intrinsically tied to the damages
allegedly resulting from [the] breach of contract.” Id. (quoting Canstar v. J.A. Jones Constr.
Co., 622 N.Y.S. 2d 730, 731 (App. Div. 1st Dept. 1995)); Deer Park Enterprises, LLC v. Ail
Systems, Inc., 870 N.Y.S. 2d 89, 90 (N.Y. App. Div. 2d Dept. 2008). Because the relief
sought by Avenue Plaintiffs in connection with their implied covenant claim against Bank
of America is “intrinsically tied to the damages allegedly resulting from [the] breach of
contract” alleged in Count I, this claim must be dismissed. Deer Park Enterprises, 870
N.Y.S. 2d at 90 (reversing lower court’s denial of motion to dismiss and concluding that “[a]
cause of action to recover damages for breach of the implied covenant of good faith and
fair dealing cannot be maintained where the alleged breach is ‘intrinsically tied to the
damages allegedly resulting from a breach of the contract’ ”) (quoting Canstar, 622 N.Y.S.
2d at 731).
D.

Breach of the Implied Covenant of Good Faith and Fair Dealing Against
All Defendants – Count IV of the Avenue Complaint

The final claim I must address is the Avenue Plaintiffs’ claim against all Defendants
for breach of the implied covenant of good faith and fair dealing in connection with the
Credit Agreement. In support of this claim, the Avenue Plaintiffs allege that Defendants
“breached the implied covenant [of good faith] by adopting a contrived construction of the
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Credit Agreement in order to justify their refusal to fund the March 2 Notice [of Borrowing]
and the March 3 Notice [of Borrowing].” (Avenue Compl. at ¶ 198). Under New York law,
claims for breach of the implied covenant of good faith are unsustainable as a matter of
law if a plaintiff “seek[s] to imply an obligation of the defendants which [is] inconsistent with
the terms of the contract” at issue. Fitzgerald v. Hudson Nat'l Golf Club, 783 N.Y.S. 2d
615, 617-18 (N.Y. App. Div. 2d Dept. 2004) (affirming dismissal of implied covenant claim
where plaintiff sought to imply an obligation inconsistent with the terms of the contract); see
also Dalton v. Educational Testing Service, 87 N.Y. 2d 384, 389 (N.Y. 1995). Because
I have concluded that the purportedly “contrived construction” of “fully drawn” is, in fact, the
correct interpretation, this claim fails as a matter of law, as it seeks to impose an obligation
– i.e., a particular construction of the Credit Agreement’s terms – that is inconsistent with
the terms of the agreement.
V.

Conclusion
Based on the foregoing, I conclude that – with the exception of Count I of the

Avenue Complaint – all claims asserted by the Plaintiffs warrant dismissal. The dismissal
of these claims is with prejudice for two reasons. First, the facts, circumstances, and
applicable law indicate that any attempt to amend the dismissed claims would be futile; and
second, Plaintiffs have failed to state a claim despite having previously amended their
complaints.25 Novoneuron Inc. v. Addiction Research Institute, Inc., 326 Fed. Appx. 505,
507 (11th. Cir. 2009) (affirming dismissal with prejudice where Plaintiff amended as a
matter of right and later decided to litigate the merits of Defendant’s motion to dismiss

25

The Avenue Complaint was amended twice. The Aurelius Complaint was amended

once.

29

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rather than requesting leave to amend); Butler v. Prison Health Services, Inc., 294 Fed.
Appx. 497, 500 (11th Cir. 2008) (“The district court . . . need not allow an amendment . .
. where amendment would be futile.”) (cites and quotes omitted).
I note that I would normally be inclined to afford Plaintiffs an opportunity to amend
their complaints to assert claims founded upon contractual promises of which they were
the intended beneficiaries (e.g., promises set forth in the Intercreditor Agreement to which
the parties alluded during oral argument). However, because the parties have indicated
that the promises contained in the Intercreditor Agreement are not germane to this action,
[MTD Hr’g Tr. 3:26 p.m. - 3:28 p.m.], I see no reason to invite further amendments.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that:
1.

Defendants’ Motions to Dismiss [DE 35]; [DE 36] are GRANTED IN PART
AND DENIED IN PART.

2.

Counts I and II of the Aurelius Complaint are DISMISSED WITH
PREJUDICE.

3.

Counts II, III, and IV of the Avenue Complaint are DISMISSED WITH
PREJUDICE.

4.

Count VI of the Avenue Complaint is DISMISSED WITHOUT PREJUDICE
AS MOOT.

5.

Defendant Bank of America shall Answer Paragraphs 1-178 and 201-203 of
the Avenue Complaint no later than Friday June 18, 2010.

6.

No later than Friday June 18, 2010, the Avenue Plaintiffs shall file a Notice

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with this Court stating whether Count V of the Avenue Complaint seeks
declaratory relief pursuant to state or federal law.
7.

All pending motions in the Aurelius Action are hereby DENIED AS MOOT
and all upcoming hearings in the Aurelius Action are hereby CANCELLED.

8.

The Clerk is directed to CLOSE the Aurelius Action (i.e., Case No.: 10-CV20236-GOLD) and is further directed to send a copy of this Order to the
Clerk of the Judicial Panel on Multidistrict Litigation.

9.

Final judgment in the Aurelius Action will issue concurrently with this Order.

DONE AND ORDERED IN CHAMBERS at Miami, Florida this 28thday of May,
2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge Ted Bandstra
Counsel of record

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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-2106-CIV-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
This document applies to:
Case No.: 09-CV-23835-ASG
Case No.: 10-CV-20236-ASG
____________________________________/
AMENDED1 MDL ORDER NUMBER EIGHTEEN;2 GRANTING IN
PART AND DENYING IN PART MOTIONS TO DISMISS [DE 35]; [DE 36];
REQUIRING ANSWER TO COMPLAINTS; VACATING FINAL JUDGMENT3
I.

Introduction
THIS CAUSE is before the Court upon the Revolving Lender Defendants’ Motion

to Dismiss [DE 36] and Bank of America’s Motion to Dismiss [DE 35] (“the Motions”).
Responses and replies were timely filed with respect to both motions, see [DE 50]; [DE
52]; [DE 56]; [DE 57], and on May 7, 2010, oral argument was held. I have jurisdiction
pursuant to 12 U.S.C. § 632, as it is undisputed that both actions at issue are “suits of a
civil nature at common law . . . to which [a] corporation organized under the laws of the
United States [is] a party [and which] aris[es] out of transactions involving international or
foreign banking.” Having considered the relevant submissions, the arguments of the

1

This Order corrects the inadvertent closure of the Aurelius Action. Count III of the
Aurelius Complaint remains pending and the final judgment issued in that case must therefore
be vacated.
2

Although not labeled as such, MDL Order Number Seventeen appears at [DE 74].

3

All docket entry citations refer to the MDL Master Docket – i.e., Case No.: 09-MD-2106
(S.D. Fla. 2009) – unless otherwise indicated.

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parties, the applicable law, and being otherwise duly advised in the Premises, I grant the
Motions in part and dismiss certain claims for the reasons that follow.
II.

Relevant Factual and Procedural Background4
Although the facts giving rise to the claims at issue are detailed in my August 26,

2009 Order Denying Fontainebleau’s Motion for Partial Summary Judgment in the
Southern District of Florida Action, see generally Fontainebleau Las Vegas, LLC v. Bank
of America, N.A., 417 B.R. 651 (S.D. Fla. 2009) (“August 26 Order”), I reiterate the relevant
factual background here with citations to the operative complaints5 to ensure that the
record clearly demonstrates that the facts and inferences upon which this Order is
predicated are drawn only from the operative complaints and the referenced undisputed
central documents.
A.

The Credit Agreement and Disbursement Agreement

On June 6, 2007, Fontainebleau Las Vegas LLC and affiliated entities
(“Fontainebleau”) entered into a series of agreements with a number of lenders (“the
Lenders”) for loans to be used for the construction and development of the Fontainebleau
Resort and Casino in Las Vegas, Nevada (“the Project”). (Avenue Compl.6 at ¶ ¶ 113-115);
4

For purposes of a motion to dismiss, I take as true all factual allegations in the
operative complaints and limit my consideration to the four corners of the complaints and any
documents referenced in the complaints which are central to the claims. Griffin Industries, Inc.
v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959 (11th Cir. 2009). To the extent the central documents contradict the general and
conclusory allegations of the pleading, the documents govern. See Griffin, 496 F.3d at 1206.
5

See note 5, infra.

6

The operative complaint in the case of Avenue CLO Fund, Ltd.,et al. v. Bank of
America, N.A., et al., Case No.: 09-CV-23835 [DE 84] (S.D. Fla. 2009), will be referred to
throughout as the “Avenue Complaint.” The operative complaint in the case of ACP Master Ltd.
and Aurelius Capital Master, Ltd. v. Bank of America, N.A., et al., Case No.: 10-CV-20236 [DE

2

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(Aurelius Compl. at ¶ ¶ 2-4); see generally [DE 37-1] (“Cr. Agr.”); [DE 37-2] (“Disb. Agr.”).
Among the agreements entered into by Fontainebleau and the Lenders were a Credit
Agreement and a Disbursement Agreement. (Avenue Compl. at ¶ 115); (Aurelius Compl.
at ¶ ¶ 3, 27). It is these two agreements that are the subject of the operative complaints.
In connection with the June 6, 2007 loan transaction, Fontainebleau and the
Lenders entered into a Credit Agreement that provided, among other things, for a syndicate
of lenders to provide three kinds of loans to Fontainebleau: (a) $700 million initial term loan
facility (“the Initial Term Loan”); (b) a $350 million delay draw term loan facility (“the Delay
Draw Term Loan”); and (c) an $800 million revolving loan facility (“the Revolving Loan”).
(Avenue Compl. at ¶ 115); (Aurelius Compl. at ¶ ¶ 23-24); (Cr. Agmt. at 22, 38). The
Plaintiffs proceeding on the Avenue Complaint (“the Avenue Plaintiffs”) are comprised of
certain term lenders that participated in either the Initial Term Loan and/or the Delay Draw
Term Loan. (Avenue Compl. at ¶ ¶ 115, 117). The Plaintiffs proceeding on the Aurelius
Complaint (“the Aurelius Plaintiffs”) are successors-in-interest to certain Term Lenders that
participated in either the Initial Term Loan and/or the Delay Draw Term Loan (Aurelius
Compl. at ¶ ¶ 10, 25).

Both the Avenue and Aurelius Defendants (collectively

“Defendants”) are lenders that agreed to fund certain amounts under the Revolving Loan.
(Avenue Compl. at ¶ ¶ 102-112); (Aurelius Compl. at ¶ ¶ 11-22). In addition to being a
Revolving Lender, Defendant Bank of America also was the Administrative Agent for
purposes of the Credit Agreement. (Cr. Agr. at 8).
While the Initial Term Loan was to be made on the date of closing, (Cr. Agmt. at 22),

27] (S.D. Fla. 2010), will be referred to throughout as the “Aurelius Complaint.”

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the borrowing of funds under the Delay Draw and Revolving Loans prior to the Project’s
opening date was governed by a two-step borrowing process set forth in the Credit and
Disbursement Agreements. (Aurelius Compl. at ¶ 32-33); (Avenue Compl. at ¶ 119). First,
Fontainebleau was required to submit a Notice of Borrowing to the Administrative Agent
(i.e., Bank of America) specifying the requested loans and the designated borrowing date.
(Aurelius Compl. at ¶ 33); (Avenue Compl. at ¶ 119); (Cr. Agmt. § 2.4(a)). Upon receipt
of each Notice of Borrowing, the Administrative Agent was required to notify each lender,
as appropriate, so that each lender could, “subject [] to the fulfillment of the applicable
conditions precedent set forth in Section 5.2 [of the Credit Agreement]” and in accordance
with Section 2.1, make its pro rata share of the requested loans available to the
Administrative Agent on the borrowing date requested by Fontainebleau. (Cr. Agr. § §
2.1(c); 2.4(b)). Then, “[u]pon satisfaction or waiver of the applicable conditions precedent
specified in Section 2.1,” Section 2.4(c) of the Credit Agreement called for the proceeds
of the loans to be “remitted to the Bank Proceeds Account and made available to
[Fontainebleau] in accordance with and upon fulfillment of conditions set forth in the
Disbursement Agreement.”
The second step in the borrowing process concerns Fontainbleau’s access to the
funds remitted to the Bank Proceeds Account and is governed by the Disbursement
Agreement. To access these funds, Fontainebleau was required to fulfill certain conditions
set forth in the Disbursement Agreement – including, but not limited to, the submission of
an Advance Request to Defendant Bank of America as Disbursement Agent – at which
point the loan proceeds would be disbursed in accordance with the Disbursement
Agreement. (Avenue Compl. at ¶ 120); (Aurelius Compl. at ¶ 37); see also (Disb. Agr. §
4

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§ 2.4, 3.3).
However, pursuant to Section 2.5.1 of the Disbursement Agreement,
Fontainebleau’s right to disbursements was not absolute. That section provides that
Defendant Bank of America (as Disbursement Agent) was required to issue a Stop Funding
Notice “[i]n the event that (i) the conditions precedent to an Advance [set forth in Section
3.3 of the Disbursement Agreement] have not been satisfied, or (ii) [Wells Fargo, N.A. or
Bank of America] notifies the Disbursement Agent [Bank of America] that a Default or an
Event of Default has occurred and is continuing . . . .“ (Disb. Agr. § 2.5.1); (Aurelius
Compl. at ¶ 37); (Avenue Compl. at ¶ 124). Under the Disbursement Agreement, the
issuance of a Stop Funding Notice has the effect of preventing disbursements from the
accounts subject to certain waiver provisions and limited exceptions not at issue. (Disb.
Agr. § 2.5.2).
As noted, Defendants’ agreement to make Revolving Loans to Fontainebleau is
governed by Section 2.1(c) of the Credit Agreement. The first sentence of Section 2.1(c)
provides, in pertinent part, that “[s]ubject to the terms and conditions [of the Credit
Agreement],7 each Revolving Lender severally agrees to make Revolving Loans to
[Fontainebleau] provided that . . . unless the Total Delay Draw Commitments have been
fully drawn, the aggregate outstanding principal amount of all Revolving Loans and Swing
Line Loans shall not exceed $150,000,000.” (emphasis in original). The second sentence
of Section 2.1(c) provides that “[t]he making of Revolving Loans which are Disbursement
Agreement Loans shall be subject only to the fulfillment of the applicable conditions set

7

The provision reads “[s]ubject to the terms and conditions hereof.” (Cr. Agr. § 2.1(c)).
Section 1.2 states that “hereof . . . shall refer to this Agreement as a whole.”

5

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forth in Section 5.2.” (emphasis in original). Section 5.2 provides, in pertinent part, that
“[t]he agreement of each lender to make [the Revolving Loans at issue here] . . . is subject
only to the satisfaction of following conditions precedent: (a) Borrowers shall have
submitted a Notice of Borrowing specifying the amount and Type of the Loans requested,
and the making thereof shall be in compliance with the applicable provisions of Section 2
of this Agreement.”8
B.

The March 2009 Notices of Borrowing and Disbursements

On March 2, 2009, Fontainebleau submitted a Notice of Borrowing (“March 2
Notice”) to Defendant Bank of America, as Administrative Agent, that simultaneously
“request[ed]” the entire amount available under the Delay Draw Term Loan (i.e.,
$350,000,000) and the Revolving Loan (i.e., $670,000,000).9 (Aurelius Compl. at ¶ 44);
(Avenue Compl. at ¶ 141). At the time of the March 2, 2009 request, approximately $68
million in Revolving Loans had previously been funded and remained outstanding.
(Aurelius Compl. at ¶ 45); (Avenue Compl. at ¶ 152). On March 3, 2009, Bank of America,
as Administrative Agent, wrote to Fontainebleau rejecting the March 2 Notice, stating that
the March 2 Notice did not comply with Section 2.1(c)(iii) of the Credit Agreement, which
does not allow the aggregate outstanding principal amount of the Revolving Loans to

8

The second and third conditions precedent set forth in Section 5.2 are not relevant to
the claims at bar.
9

The Aurelius Complaint alleges that Fontainebleau issued a Notice of Borrowing
“drawing” the above-referenced loans on March 2, 2009. (Aurelius Compl. ¶ 44). However, the
Notice of Borrowing, which is reproduced in the body of the Complaint, states that
Fontainebleau was “requesting a Loan under the Credit Agreement.” Id. at 11. Where there is
a conflict between allegations in a pleading and the central documents, the contents of the
documents control. See Section III, infra.

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exceed $150,000,000 unless the Delay Draw Term Loans have been “fully drawn.”
(Aurelius Compl. ¶ ¶ 50-51); (Avenue Compl. at ¶ ¶ 143-45).

On March 3, 2009,

Fontainebleau wrote to Bank of America articulating its position that its March 2, 2009
Notice complied with the Credit Agreement because “fully drawn” meant “fully requested,”
not “fully funded,” as Bank of America was contending. (Aurelius Compl. at ¶ ¶ 54-55);
(Avenue Compl. at ¶ 141). Thus, according to Fontainebleau, the simultaneous request for
the remainder of the Delay Draw Term Loan and the Revolving Loans complied with the
Credit Agreement because the Delay Draw Term Loans had been “fully drawn” by virtue
of having been “fully requested.” Id.
On March 3, 2009, Fontainebleau issued another Notice of Borrowing (“the March
3 Notice), which was nearly identical to the March 2 Notice, but purported to correct a
“scrivener’s error” in the March 2 Notice by reducing the amount of Revolving Loans
requested from $670,000,000 to approximately $656 million in order to account for
approximately $14 million of Letters of Credit that were outstanding and had not been
considered in connection with the March 2 Notice. (Avenue Compl. at ¶ 141); (Aurelius
Compl at ¶ 56). On March 4, 2009, Defendant Bank of America rejected the March 3
Notice for the same reason it rejected the March 2 Notice (i.e., the Notice, which
simultaneously requested $350,000,000 in Delay Draw Term Loans and Revolving Loans
in excess of $150,000,000 in Revolving Loans, did not comply with Section 2.1(c)(iii)
because the Delay Draw Term loans had not yet been “fully drawn”). (Aurelius Compl. at
¶ 57); (Avenue Comp. at ¶ 144).
In an attempt to remedy the “fully drawn” issue, Fontainebleau issued yet another
Notice of Borrowing on March 9, 2009 (“the March 9 Notice”). (Aurelius Compl. at ¶ 65)
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(Avenue Compl. at ¶ 151). The March 9Notice was directed solely to the Delay Draw Term
Loan, requesting the full amount of the $350,000,000 commitment. Id. Despite the fact
that Bank of America “received notice . . . [i]n September and October 2008 that Lehman
[Brothers] fail[ed] to comply with its funding obligations under the Retail Facility” in violation
of Section 3.3.3 of the Disbursement Agreement, Defendant Bank of America did not issue
a “Stop Funding Notice.” (Aurelius Compl. at ¶ ¶ 96-109); (Avenue Compl. at ¶ ¶ 129-133).
Instead, it processed the March 9 Notice and sent it to all the Delay Draw Term Lenders,
advising them that the March Notice complied with the Credit Agreement and that the
Delay Draw Lenders were required to fund. (Aurelius Compl. at ¶ 66); (Avenue Compl. at
¶ 153). Plaintiffs allege that Bank of America “willfully took no action in response to the
notice” regarding Lehman Brothers’ default, “favor[ed] its own interests over those of the
Delay Draw lenders” by failing to issue a Stop Funding Notice, (Aurelius Compl. at ¶ ¶ 109,
151), and failed to act “because it wished to preserve its ongoing business relationship with
the Borrower and its principal indirect owners, including Jeffrey Soffer.” (Avenue Compl.
at ¶ 129-30).
On or about March 10, 2009, Plaintiffs funded their commitments under the Delay
Draw Term Loans. In all, the Delay Draw Term Loan Lenders funded approximately
$337,000,000 of the $350,00,000 Delay Draw Loan.10 (Aurelius Compl. ¶ ¶ at 66-67);
(Avenue Compl. at ¶ 154). Of these Delay Draw Term Loan proceeds, $68,000,000 were
used to repay “then outstanding” Revolving Loans in accordance with Section 2.1(b)(iii) of

10

The $13 million financing gap resulted from the failure of certain Delay Draw Term
Lenders to fund their respective portions of the Delay Draw Term Loans in response to the
March 9 Notice. (Avenue Compl. at ¶ 157). This financing gap, however, is irrelevant for
purposes in this Order.

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the Credit Agreement, of which a twenty-five percent share was attributable to Bank of
America as a Revolving Lender. (Avenue Compl. at ¶ ¶ 152-53). Then, on or about March
25, 2009, Bank of America disbursed more than $100,000,000 of the Delay Draw Term
Loan proceeds to Fontainebleau pursuant to an Advance Request submitted on March 25,
2009. (Avenue Compl. at ¶ 165); (Aurelius Compl. at ¶ 124). In addition, on or about
March 23, 2009, Bank of America sent a letter to Fontainebleau regarding the Revolving
Loans; the letter stated that because “almost all of the [Delay Draw Term Loans] have
funded . . . Section 2.1(c)(iii) now permits the Borrower to request Revolving Loans which
result in the aggregate amount outstanding under the Revolving Commitments being in
excess of $150,000,000.” (Aurelius Compl. at ¶ 89); (Avenue Compl. at ¶ 163).
C.

Events Subsequent to the March 25 Advance

On April 20, 2009, Bank of America, “in its capacity as Administrative Agent, sent
a letter to [Fontainebleau], the Lenders and other parties, in which [Bank of America]
advised that . . . [it has been] determined that one or more Events of Default have occurred
and are occurring” and stating that the Revolving Loan commitments were being
”terminated effective immediately“ pursuant to Section 8 of the Credit Agreement (“the
Termination Notice”).

(Aurelius Compl. at ¶ 73); (Avenue Compl. at ¶ ¶ 167-68).

According to Plaintiffs, Bank of America was aware of these Events of Default prior to the
March 25, 2009 Delay Draw Term Loan disbursement, but failed to take appropriate action
(e.g., issuing a Stop Funding Notice). (Aurelius Compl. at ¶ 128); (Avenue Compl. at ¶
167).
On April 21, 2009, Fontainebleau sent a Notice of Borrowing (“the April 21 Notice”)
requesting $710,000,000 under the Revolving Loan facility; this Notice of Borrowing was
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not honored. (Aurelius Compl. at ¶ ¶ 71-72); (Avenue Compl. at ¶ 169). Subsequent to
April 21, 2009, the Project was “derailed and the value of the collateral securing Plaintiffs’
loans [was] substantially diminished.” (Avenue Compl. at ¶ 172); (Aurelius Compl. at ¶
153). Plaintiffs allege that they have been damaged by the derailment of the Project, the
diminution in the value of their collateral, and the purportedly improper March 25
disbursement of Delay Draw Term Loan proceeds; it is further alleged that these damages
were the result of Defendants’ improper failure to fund the March 3, 2009 Notice and Bank
of America’s material breaches of the Credit and Disbursement Agreements. (Aurelius
Compl. at ¶ 151-53); (Avenue Compl. at ¶ 172).
Based on these allegations, the Avenue and Aurelius Plaintiffs filed the instant
lawsuits in June and September 2009, respectively. The Aurelius Complaint asserts three
causes of action. The first is a contract claim against all Defendants for breach of the
Credit Agreement as a result of their failure to fund the Notices of Borrowing submitted on
or about March 2 and 3, 2009. The second is also a contract claim for breach of the Credit
Agreement against all Defendants, but is predicated upon Defendants’ failure to fund the
April 21, 2009 Notice of Borrowing. The third count also sounds in contract, but asserts
a breach of the Disbursement Agreement against Bank of America.
The Avenue Complaint, on the other hand, asserts six causes of action: the first is
for breach of the Disbursement Agreement against Bank of America; the second is for
breach of the Credit Agreement against all Defendants; the third asserts that Bank of
America breached the implied covenant of good faith and fair dealing by favoring its own
interests and those of the Revolving Lenders (including itself) over those of the Term
Lenders and failing to communicate with the Term Lenders regarding Events of Default;
10

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the fourth alleges that all Defendants breached the implied covenant of good faith and fair
dealing by adopting a contrived construction of the Credit Agreement in order to justify their
refusal to fund the March 2 and 3 Notices; and finally, the fifth and sixth counts request
declaratory relief regarding the parties’ rights and obligations vis-a-vis the Credit and
Disbursement Agreements. Pursuant to Rule 12(b)(6), Defendants now request dismissal
of Plaintiffs’ breach of contract and implied covenant claims. See [DE 35]; [DE 36].
D.

The Southern District of Florida Action and the Current MDL Proceedings

When Fontainebleau’s project was derailed in Spring 2009, Fontainebleau filed a
voluntary Chapter 11 petition in the United States Bankruptcy Court for the Southern
District of Florida. On the same day that Fontainebleau filed for bankruptcy protection, it
commenced an adversary proceeding against the Revolving Lenders (including Bank of
America) seeking, among other things, a ruling requiring the Revolving Lenders to “turn
over” the approximately $657 million requested via the March 3 Notice to the bankruptcy
estate in pursuant to 11 U.S.C. § 542(b) (“the Florida Action”). On June 9, 2009,
Fontainebleau filed a Motion for Partial Summary Judgment in the Bankruptcy Court as to
its turnover claim, and on June 16, 2009, Defendants filed a Motion to Withdraw the
Reference pursuant to 28 U.S.C. § 157(d). On August 4, 2009, I granted Defendants’
Motion to Withdraw the Reference in the Florida Action. After permitting the Term Lenders
to file an amicus brief, I denied Fontainebleau’s motion for partial summary judgment,
concluding as a matter of law that, for purposes of the Credit Agreement, “fully drawn”
unambiguously means “fully funded.” Fontainebleau Las Vegas, LLC v. Bank of America,

11

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N.A., 417 B.R. 651, 660 (S.D. Fla. 2009).11
In December 2009, the Joint Panel on Multi-District Litigation (“the Panel”) heard the
Avenue Plaintiffs’ motion for centralization of their lawsuit and the Florida Action in the
Southern District of New York. Defendants and the Aurelius Plaintiffs objected, requesting
that the suits be transferred to the Southern District of Florida for pre-trial proceedings.
After considering the parties’ positions, the Panel issued an Order finding “that
centralization under Section 1407 in the Southern District of Florida will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of the
litigation.” In re: Fontainebleau Las Vegas Contract Litigation, 657 F. Supp. 2d 1374, 1375
(J.P.M.L. 2009). Following the issuance of the Panel’s Order, the Avenue Action was
transferred to me for pre-trial proceedings. Approximately one month later, the Aurelius
Action was also transferred to me as a “tag-along” action in accordance with the Panel’s
directive. Id. at 1374 n.2. As the MDL judge, I now consider the instant motions to
dismiss. See Rule 7.6, R.P.J.P.M.L. (providing that transferee district court may hear and
enter judgment upon a motion to dismiss).
III.

Standard of Review

For purposes of deciding a motion to dismiss, my review is limited to the four
corners of the operative complaint and any documents referred to therein that are central

11

Alternatively, I noted that “even if my conclusion that ‘fully drawn’ unambiguously
means ‘fully funded’ is in error . . . [Fontainebleau’s] reasoning at best suggests that its
interpretation is a reasonable one, but not the conclusive one, and requires the denial of partial
summary judgment.” Id. at 661. I further noted that “[e]ven if [Fontainebleau] is correct that the
term ‘fully drawn’ unambiguously means ‘fully requested,’ I am persuaded by Defendants'
arguments that they were entitled to reject the March 2 Notice on the basis of Plaintiffs default”
and found there to be “genuine issue[s] of material fact as to whether Borrower was in default
as of March 3, 2009.” Id. at 663-65.

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to the claims at issue. Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007);
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (noting that district courts “may consider a
document attached to a motion to dismiss without converting the motion into one for
summary judgment if the attached document is (1) central to the plaintiff's claim and (2)
undisputed”). Where there is a conflict between allegations in a pleading and the central
documents, it is “well settled” that the contents of the documents control. Griffin, 496 F.3d
at 1206 (quoting Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940)).
Thus, only the contents of the operative complaints and the undisputed central documents
will be considered for purposes of this Order.
In determining whether to grant Defendants’ motions to dismiss, I must accept all
the factual allegations12 in the complaints as true and evaluate all reasonable inferences
derived from those facts in the light most favorable to the Plaintiffs. Hill v. White, 321 F.3d
1334, 1335 (11th Cir. 2003); Hoffend v. Villa, 261 F.3d 1148, 1150 (11th Cir. 2001).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader[s] are entitled to relief,’ in order to ‘give the defendant[s] fair
notice of what the . . . claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1959 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47, 78 S.Ct. 99, 103 (1957)). “Of course, ‘a formulaic recitation of the elements
of a cause of action will not do.’” Watts v. Fla. Int’l. Univ., 495 F.3d 1289, 1295 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 555). “While Rule 12(b)(6) does not permit dismissal
12

Legal conclusions, on the other hand, need not be accepted as true. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009).

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of a well-pleaded complaint simply because it strikes a savvy judge that actual proof of
those facts is improbable, the factual allegations must be enough to raise a right to relief
above the speculative level.” Watts, 495 F.3d at 1295 (citing Twombly, 550 U.S. at 555)
(internal quotation marks omitted)). In other words, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff[s] plead[]
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. It follows that “where the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged – but it has not ‘show[n] ’ – ‘that the pleader is entitled to relief.’ ” Id. at 1950
(quoting Fed.R.Civ.P. 8(a)(2)).
IV.

Analysis

A.

Breach of Credit Agreement – Counts I and II of the Aurelius Complaint;
Count II of the Avenue Complaint
1.

Plaintiffs Lack Standing to Assert Claims for Failure to Fund

In support of their request for dismissal, Defendants contend that Plaintiffs lack
standing to pursue claims based on Defendants’ alleged breaches of the Credit
Agreement. I agree. “Standing is a threshold jurisdictional question which must be
addressed prior to and independent of the merits of a party's claims.” Bochese v. Town
of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quoting Dillard v. Baldwin County
Comm'rs, 225 F.3d 1271, 1275 (11th Cir. 2000)). Absent an adequate showing of
standing, “a court is not free to opine in an advisory capacity about the merits of a plaintiff's
14

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claims.” Id. The burden of establishing standing is on the Plaintiffs. Id. at 976; see also
AT&T Mobility, LLC v. National Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1357, 1360
(11th Cir. 2007)
Pursuant to Article III of the United States Constitution, Plaintiffs “must establish that
[they] ha[ve] suffered an injury in fact” to have standing to challenge Defendants’ failure
to fund under the Credit Agreement.13 AT&T Mobility, 494 F.3d at 1360 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “To establish injury in fact, [Plaintiffs]
must first demonstrate that [Defendants] ha[ve] invaded a legally protected interest derived
by [Plaintiffs] from the [Credit] Agreement between [Plaintiffs] and [Defendants].” Id.
(citation and internal quotation marks omitted). The question of whether, for standing
purposes, Plaintiffs have “a legally enforceable right” with respect to a contractual covenant
is a matter of state law. Id. (citation omitted); see also Mid-Hudson Catskill Rural Migrant
Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 173 (2d Cir. 2005) (Sotomayor, J.) (citing
various cases applying state law to determine whether parties had standing to sue for
breach of contract). Accordingly, I must look to New York law14 to determine whether
13

I recognize the parties’ position that having “standing” to sue for a breach of a
contractual promise is distinct from the concept of Article III standing. [MTD Hr’g Tr. 3:25 p.m.,
May 7, 2010] (“I have always just thought of this as having been innocently mislabeled. I agree
with [defense counsel] that when they said standing, what they really meant was the term
lenders don’t have any contractual right”). While there is case law supporting this contention,
the Eleventh Circuit treats the question of whether a party has a “legally enforceable right” with
respect to a contractual promise as an Article III issue. AT&T Mobility, LLC v. National Ass’n for
Stock Car Auto Racing, Inc., 494 F.3d 1357, 1360 (11th Cir. 2007); Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 975-980 (11th Cir. 2005). Accordingly, I treat it as such. I emphasize,
however, that this distinction has no bearing on the motions at bar, for Plaintiffs’ contract claims
must fail if they lack standing, regardless of how the standing issue is framed.
14

At oral argument, the parties agreed that the question of whether Plaintiffs have a
legal right to enforce the Revolving Lenders’ promise to fund the loans at issue must be
determined pursuant to New York law. [MTD Hr’g Tr. 3:25 p.m., May 7, 2010]. In determining

15

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Plaintiffs have standing to assert claims for breach of the Credit Agreement based on
Defendants’ failure to fund the Revolving Loans pursuant to the March and April Notices
of Borrowing. (Cr. Agr. § 10.11) (stating that “rights and obligations of the parties under
this agreement shall be governed by, and construed and interpreted in accordance with the
law of the State of New York”).
Under New York contract law, “[a] promise in a contract creates a duty in the
promisor to any intended beneficiary to perform the promise, and the intended beneficiary
may enforce the duty”; thus, only intended beneficiaries of a promise “ha[ve] the right to
proceed against the promisor” for breach of said promise.15 Restatement (Second) of
Contracts § 304 (1979); Hamilton v. Hertz Corp., 498 N.Y.S. 2d 706, 709 (N.Y. Sup. Ct.
1986) (citing Restatement (Second) of Contracts § 304 (1979)). This well-established rule
applies with equal force to both bipartite and multipartite agreements. See Berry Harvester
v. Walter A. Wood Mowing & Reaping Machine Co., 152 N.Y. 540, 547 (N.Y. 1897)
(holding that a plaintiff may not enforce every promise contained in a multipartite
agreement; rather, the specific promise a plaintiff seeks to enforce must have been
intended for the plaintiff’s benefit). Thus, in the context of a multipartite contract, “the mere
fact that [Plaintiffs] signed the agreement is not controlling; they may have enforceable

and applying the law of New York, I must follow the decisions of the state's highest court, and in
the absence of such decisions on an issue, must adhere to the decisions of the state's
intermediate appellate courts, unless there is some persuasive indication that the state's
highest court would decide the issue otherwise. See Best Van Lines, Inc. v. Walker, 490 F.3d
239, 245 n. 9 (2d Cir. 2007).
15

While the Plaintiffs and Defendants disagree as to whether Plaintiffs were intended
beneficiaries of the Revolving Lenders’ promise to fund, both sides appear to agree that one
must be an intended beneficiary of a promise in order to have a legal right to enforce it. [MTD
Hr’g Tr. 3:35 p.m. - 3:38 p.m.].

16

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rights under some of its provisions and not have enforceable rights under other provisions.”
Alexander v. United States, 640 F.2d 1250, 1253 (Ct. Cl. 1981) (finding that party to
agreement was not an intended beneficiary of a certain promise and therefore had no legal
right to enforce that promise and noting that Berry Harvester is a “leading case” on the
subject). In such cases, the “critical inquiry is whether the parties to the agreement
intended to give [Plaintiffs] the right to enforce” the promise at issue at issue.16 Hence, in
order to have standing to sue Defendants’ for failure to fund the Revolving Loans, Plaintiffs
must adequately demonstrate that they are “intended beneficiaries” of Defendants’ promise
to fund the Revolving Loans under the Credit Agreement.
The question of whether a party is an intended or incidental beneficiary of a
particular contractual promise can be determined “as a matter of law” based on the parties’
intentions as expressed in the operative agreement. See generally Fourth Ocean Putnam
Corp. v. Interstate Wrecking Co., Inc., 66 N.Y. 2d 38 (N.Y. 1985) (affirming lower court’s

16

Although this argument was not raised in its opposition papers, counsel for the
Aurelius Plaintiffs asserted at oral argument that Section 260 of New York Jurisprudence
(Second) Contracts and Section 297 of the Restatement (Second) of Contracts support the
conclusion that all parties to a multipartite agreement are presumed to have a right to enforce
every promise contained therein unless a party’s right to enforce “is specifically severed.” [MTD
Hr’g Tr. 3:38 p.m.]. Having reviewed these sections, I reject this contention and note that
Plaintiffs appear to have conflated two distinct concepts in advancing this argument: the first is
whether a party has a legal right to enforce a particular promise; the second is whether the right
to enforce a particular promise is held jointly or severally by multiple parties. The issue here is
not whether Plaintiffs and Fontainebleau have a “joint” or a “several” (i.e., separately
enforceable) right to enforce the Revolving Lenders’ promise to fund; rather, the question is
whether Plaintiffs have any right whatsoever to enforce that promise. With respect to this
issue, it is clear that the Berry Harvester test controls – i.e., “[w]hether the right or privilege
conferred by the promise of one party to a tripartite contract belongs to one or both of the other
parties depends upon the intention of the parties; the mere fact that there are three parties to
the contract does not enlarge the effect of any promise, except as it may extend the advantage
to two persons instead of one where that is the intention.” 22 N.Y. Jur. 2d Contracts § 260
(2010) (citing Berry Harvester v. Walter A. Wood Mowing & Reaping Machine Co., 152 N.Y.
540 (N.Y. 1897)).

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determination that, as a matter of law, party was not an intended beneficiary); see also
Berry Harvester, 152 N.Y. at 547 (“whether the right or privilege conferred by the promise
of one party to a tripartite contract belongs to one or both of the other contracting parties
depend upon the intention as gathered from the words used . . .”).17 If the contractual
language is ambiguous, however, courts may consider the contractual language “in light
of the surrounding circumstances” in order to discern the intention of the parties. Berry
Harvester, 152 N.Y. at 547.
Traditionally, New York law held that “the absence of any duty . . . to the beneficiary
[vis-a-vis a particular promise]. . . negate[d] an intention to benefit” the beneficiary. Fourth
Ocean, 66 N.Y. 2d at 44-45. However, as New York’s highest court has noted, that
requirement “has been progressively relaxed.” Id. (citation omitted). Today, the rule is that
a beneficiary can establish that he has standing to enforce a particular promise “only if no
one other than the [beneficiary] can recover if the promisor breaches the [promise] or the
contract language . . . clearly evidence[s] an intent to permit enforcement by the
third-party.” Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 651 F. Supp. 2d
155, 172 (S.D.N.Y. 2009) (citations and internal quotation marks omitted) (emphasis
added); see also Fourth Ocean, 66 N.Y. 2d at 45 (concluding that a third party to a promise
can enforce the promise if “no one other than the third party can recover if the promisor

17

The fact that some of the cases cited involve third-party beneficiaries that were not
actually “parties” to the written agreements at issue does not render the cases inapposite. As I
have already explained, it is the intent of the parties with respect to the individual promise at
issue that is critical. See Berry Harvester, 152 N.Y. at 547 (“any party . . . may insist upon the
performance of every promise made to him, or for his benefit, by the party or parties who made
it”). For example, in a tripartite contract setting where A makes an enforceable promise to B
that is expressly intended for the benefit of C, C is a “third-party beneficiary” of that promise
notwithstanding the fact that he, she, or it is technically a “party” to the written agreement.

18

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breaches or that the language of the contract otherwise clearly evidences an intent to
permit enforcement by the third party”) (emphasis added).
Here, there is no ambiguity with respect to the promise at issue, which states that
“each Revolving Lender severally agrees to make Revolving Loans to Borrowers from time
to time during the Revolving Commitment Period.” (Cr. Agr. § 2.1(c)) (emphasis added).
This promise creates a duty on the part of Defendants to make loans to Fontainebleau in
accordance with the Credit Agreement; it does not establish a duty to the Plaintiffs here or
“clearly evidence an intent to permit enforcement by [Plaintiffs].” Fourth Ocean, 66 N.Y.
2d at 45. Additionally, it is not the case that “no one other than [Plaintiffs] can recover if
[Defendants] breache[d],” id., as Fontainebleau would unquestionably be able to recover
if it were able to prove that it suffered damages as a result of Defendants’ material breach
of the Credit Agreement. While I recognize that “the full performance of [Defendants’
purported obligation to fund the Revolving Loans] might ultimately benefit [Plaintiffs],” this,
at best, establishes that Plaintiffs were “incidental beneficiaries” of Defendants’ promise
to Fontainebleau to make Revolving Loans. Fourth Ocean, 66 N.Y. 2d at 45; see also
Salzman v. Holiday Inns, Inc., 48 N.Y.S. 2d 258, 261 (N.Y. App. Div. 4th Dept. 1975)
(finding Holiday Inns, an interim lender, to be an incidental beneficiary of financing
agreement between plaintiff and permanent lender because agreement called for the
permanent lender to pay money to plaintiff, not Holiday Inns, and further noting that “the
typical case of an incidental beneficiary is where A promises B to pay him money for his
expenses [and] Creditors of B (though they may incidentally benefit by the performance
of A's promise) are not generally allowed to sue A”) (citation and internal quotation marks

19

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omitted).18
Because New York law requires that one be an “intended beneficiary” of a particular
promise in order to have a legal right to enforce that promise, and because Plaintiffs have
failed to adequately demonstrate that they were “intended beneficiaries” of Defendants’
promise to fund the Revolving Loans at issue, Counts I and II of the Aurelius Complaint
and Count II of the Avenue Complaint must be dismissed with prejudice.19
2.

Even if Plaintiffs Had Standing to Enforce Defendants’ Promises to
Fund, Defendants Were Not Obligated to Fund the March Notices
of Borrowing

Even if Plaintiffs had standing to enforce Defendants’ promises to fund the
Revolving Loans at issue, Plaintiffs have not demonstrated that Defendants breached the
Credit Agreement by rejecting the March Notices of Borrowing because: (1) “fully drawn,”
as used in Section 2.1(c)(iii) of the Credit Agreement, unambiguously means “fully funded”;
and (2) the Delay Draw Term Loans had not been “fully drawn” at the time Fontainebleau
submitted the March Notices of Borrowing.
Under New York law, a breach of contract claim “cannot withstand a motion to

18

Plaintiffs cite to Deutsche Bank AG v. J.P. Morgan Chase Bank, 2007 U.S. Dist.
LEXIS 71933 (S.D.N.Y. Sept. 27, 2007), in support of the contention that they have a legally
enforceable right in Defendants’ promise to fund the Revolving Loans. This case fails to
buttress Plaintiffs’ position regarding standing, as it involved claims for declaratory relief, not
breach of contract – claims that have different requirements with respect to standing than the
contract claims at bar. Deutsche Bank, 2007 U.S. Dist. LEXIS 71933, * 5 (noting that parties
were only seeking “declaration[s]”); compare Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006)
(discussing standing requirements in declaratory relief actions) with Alexander v. United States,
640 F.2d 1250, 1253 (Ct. Cl. 1981) (discussing standing requirements in context of multi-party
contracts). Thus, contrary to Plaintiffs’ contention, the Deutsche Bank court did not sub silentio
conclude that lenders are intended beneficiaries of other lenders’ promises to fund a borrower’s
loans.
19

See Section V, infra (explaining why the dismissal is with prejudice).

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dismiss if the express terms of the contract contradict plaintiff[s’] allegations of breach.”
Merit, No. 08-CV-3496, 2009 WL 3053739, *2 (S.D.N.Y. Sept. 24, 2009) (citing 805 Third
Ave. Co. v. M.W. Realty Assocs., 58 N.Y. 2d 451, 447 (N.Y. 1983)). Thus, courts are not
required to “accept the allegations of the complaint as to how to construe” the agreement
at issue. Merit, 2009 WL 3053739, *2. Instead, courts must enforce written agreements
according to the “plain meaning” of their terms. Greenfield v. Philles Records, 98 N.Y. 2d
562, 569 (N.Y. 2002). When interpreting the meaning of contractual provisions, courts are
generally required to “discern the intent of the parties to the extent their intent is evidenced
by their written agreement.” Int’l Klafter Co. v. Cont. Cas. Co., 869 F.2d 96, 100 (2d Cir.
1989) (citing Slatt v. Slatt, 64 N.Y. 2d 966, 967 (N.Y. 1985)). Thus, “[i]n the absence of
ambiguity, the intent of the parties must be determined from their final writing and no parol
evidence or extrinsic evidence is admissible.” Id. (emphasis added) (citation omitted).
However, “[e]xtrinsic evidence of the parties' intent may be considered . . . if the agreement
is ambiguous, which is an issue of law for the courts to decide.” Greenfield, 98 N.Y. 2d at
569.
Whether an agreement is “ambigu[ous] is determined by looking within the four
corners of the document, not to outside sources.” Kass v. Kass, 91 N.Y. 2d 554, 556 (N.Y.
1998) (citation omitted).20 “Consequently, any conceptions or understandings any of the

20

Plaintiffs urge me to consider the manner in which the word “drawn” is generally used
in New York statutory and case law in order to discern the intended meaning of the phrase “fully
drawn,” citing to Hugo Boss Fashions, Inc. v. Fed Ins. Co., 252 F.2d 608, 617-18 (2d Cir. 2001)
for the proposition that “an established definition provided by state law or industry usage will
serve as a default rule . . . unless the parties explicitly indicate, on the face of their agreement,
that the term is to have some other meaning.” However, as the Second Circuit noted in the
sentence preceding the quote excerpted by Plaintiffs, “widespread custom or usage serves to
determine the meaning of a potentially vague term,” not an unambiguous one. Id. (emphasis

21

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parties may have had during the duration of the contracts is immaterial and inadmissible.”
Int’l Klafter Co., 869 F.2d at 100. Under New York law, “[t]he test for ambiguity is whether
an objective reading of a term could produce more than one reasonable meaning.”
McNamara v. Tourneau, Inc., 464 F. Supp. 2d 232, 238 (S.D.N.Y. 2006) (citing Collins v.
Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002)). Thus, “[a] party . . . may not create
ambiguity in otherwise clear language simply by urging a different interpretation.” Id. (citing
Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir. 1990)).
As I noted in my August 26 Order, a review of the Credit Agreement in its entirety
reveals no ambiguity as to the meaning of the term “fully drawn”; to the contrary, an
objective and plain reading of the agreement establishes that “fully drawn” in Section
2.1(c)(iii) means “fully funded,” and not “fully requested” or “fully demanded,” as Plaintiffs
suggest.

In re Fontainebleau Las Vegas Holdings, LLC, 417 B.R. at 660.21

This

added). Because the Credit Agreement unambiguously establishes that “fully drawn” means
“fully funded,” I decline to consider “extrinsic evidence” such as custom, industry usage, or the
parties’ course of dealing. Int’l Klafter Co. v. Cont. Cas. Co., 869 F.2d at 100; see also [DE 50]
(noting in their opposition to Defendants’ Joint Motion to Dismiss that “Term Lenders agree . . .
that the parties’ course of dealing is not an appropriate consideration in determining, on a
motion to dismiss, whether it is reasonable to interpret “drawn” to mean “demanded”).
However, it does bear mentioning that even the cases cited by Plaintiffs indicate that, in the
context of term loans, “draw” means “fund,” as compared to “request” or “demand.” See e.g.,
Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 2009 WL 2163483, *1,
*14 (N.Y. Sup. Ct. July 17, 2009) (concluding that Destiny Holdings was entitled to preliminary
injunction requiring Citigroup to fund “pending draw requests,” thus indicating that draw means
“fund” or “funding” and not “request” or “demand”), aff’d as modified on other grounds, 889
N.Y.S. 2d 793 (N.Y. App. Div. 4th Dept. 2009).
21

While it could be argued that the doctrine of “nonparty preclusion” should apply to
preclude Plaintiffs from relitigating the meaning of “fully drawn” given that they filed an amicus
brief in the Florida Action regarding the very same issue, this doctrine was not raised by the
Plaintiffs and I decline to apply it sua sponte. See Griswold v. County of Hillsborough, 598 F.3d
1289, 1292 (11th Cir. 2010) (clarifying doctrine of nonparty preclusion in light of recent
Supreme Court decisions on the subject).

22

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conclusion comports not only with the plain language of the Credit Agreement, but also
with the “structure of the lending facilities, as discerned from the Credit Agreement itself,
[which] reflects the parties’ intent to employ a sequential borrowing and lending process
that places access to Delay Draw Term Loans ahead of Revolving Loans when the amount
sought under the Revolving Loan facility was in excess of $150 million.” Id. at 660.
To support their argument that my prior ruling regarding the unambiguous meaning
of “fully drawn” was erroneous, Plaintiffs proffer various hypotheticals purporting to
demonstrate that interpreting “fully drawn” to mean “fully funded” would lead to patently
unreasonable results that could not have been intended by the parties to the Credit
Agreement. Such arguments are not relevant or proper, for “[a]n ambiguity does not exist
by virtue of the fact that one of a contract's provisions could be ambiguous under some
other circumstances.” Bishop v. National Health Ins. Co., 344 F.3d 305, 308 (2d Cir.
2003). To the contrary, contract law is clear insofar as “a court must look to the situation
before it, and not to other possible or hypothetical scenarios” when considering a contract
in order to determine whether an ambiguity exists. Id.; Donoghue v. IBC USA
(Publications), Inc., 70 F.3d 206, 215-16 (1st Cir. 1995) (noting that “a party claiming to
benefit from ambiguity . . . must show ambiguity in the meaning of the agreement with
respect to the very issue in dispute . . . [because] courts consider contentions regarding
ambiguity or lack of ambiguity not in the abstract and not in relation to hypothetical disputes
that a vivid imagination may conceive but instead in relation to concrete disputes about the
meaning of an agreement as applied to an existing controversy”).22
22

Even if I were to consider Plaintiffs’ hypotheticals, it would not alter my conclusion
regarding the meaning of “fully funded,” as the proffered hypotheticals fail to account for critical

23

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In sum, having considered the arguments of the parties regarding the meaning of
“fully drawn,” I conclude, for the reasons set forth above, as well as those set forth in my
August 26 Order – which I expressly incorporate by reference into this Order – that the
plain language, purpose, and structure of the Credit Agreement leads to the inexorable
conclusion that “fully drawn” unambiguously means “fully funded” for purposes of Section
2.1(c)(iii) of the Credit Agreement.23 Accordingly, even if my conclusion that Plaintiffs lack
standing is in error, Plaintiffs’ claims for failure to fund the March Notices of Borrowing fail
as a matter of law because Defendants had no obligation to make Revolving and Swing

provisions of the Credit Agreement. For example, the hypothetical set forth in Paragraph 43 of
the Aurelius Complaint ignores the existence of Section 5.2(c), entitled “Drawdown Frequency,”
which vests the Administrative Agent (i.e., Bank of America) with broad discretion to permit
Disbursement Agreement loans to be made more frequently than once every calendar month.
If Bank of America were to arbitrarily withhold its consent in such a scenario, it would be
exposing itself to a potential claim for breach of the implied covenant of good faith and fair
dealing. Dalton v. Educational Testing Service, 87 N.Y. 2d 384, 389 (N.Y. 1995) (noting that
where a “contract contemplates the exercise of discretion, [the implied covenant of good faith]
includes a promise not to act arbitrarily or irrationally in exercising that discretion”).
23

While I recognize that “[i]t is reasonable to assume that the same words used in
different parts of the instrument are used in the same sense,” it is beyond dispute that the very
same terms can have different meanings for purposes of a single agreement where “a different
meaning is indicated” by the agreement itself. Johnson v. Colter, 297 N.Y.S. 345 (N.Y. App.
Div. 4th Dept. 1937) (citation omitted). This is especially true in the context of agreements
spanning hundreds of pages that cover varying topics. For example, the word “draw” might
have a different meaning when used to refer to “drawing” on a letter of credit than when used in
reference to “drawing” on different sources of information, “drawing” on a chalkboard, or having
“drawn” on a revolving credit facility. Thus, I emphasize that I am not concluding that “draw”
must always mean “fund” for purposes of the Credit and Disbursement Agreements. Instead,
my conclusion is limited to the meaning of “fully drawn” for purposes of Section 2.1(c)(iii).
However, I note that a review of other relevant provisions appears to buttress my conclusion
that, in the context of Term Loans and Revolving Loans, “fully drawn” unambiguously means
“fully funded.” For example, Section 5.2(c), entitled “Drawdown Frequency,” provides that
Disbursement Agreement loans “shall be made no more frequently than once every calendar
month.” (emphasis added). Thus, this provision, which regulates the frequency of “drawdowns”
vis-a-vis Revolving and Term Loans, indicates that a “drawdown” is the equivalent of “making”
(i.e., funding) a Revolving or Delay Draw Term Loan, and not a “request” or “demand” for such
a loan.

24

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Line Loans in excess of $150,000,000 until: (a) the Delay Draw Term Loans were fully
funded; or (b) the provisions of Section 2.1(c)(iii) were validly waived.
B.

Breach of the Disbursement Agreement Against Bank of America – Count
I of the Avenue Complaint and Count III of the Aurelius Complaint

In addition to the Credit Agreement claim discussed above, Plaintiffs have each
asserted a contract claim against Bank of America for breach of the Disbursement
Agreement. In order to state a claim for breach of contract under New York law,24 a
Plaintiff must adequately allege: (1) the existence of a contract, (2) the plaintiff's
performance under the contract, (3) the defendant's breach of that contract, and (4)
resulting damages. JP Morgan Chase v. J.H. Elec. of New York, Inc., 893 N.Y.S. 2d 237,
239 (N.Y. App. Div. 2d Dept. 2010). Here, Defendant Bank of America does not dispute
the existence of a contract, Plaintiffs’ performance, or resulting damages. Instead, Bank
of America argues that Plaintiffs have failed to adequately allege a breach of the
Disbursement Agreement.
In considering Bank of America’s argument, I start with Section 2.5.1 of the
Disbursement Agreement, which requires Bank of America to issue a Stop Funding Notice
“[i]n the event that [] the conditions precedent to an Advance have not been satisfied.” The
conditions precedent to an Advance are set forth in Section 3.3 of the Disbursement
Agreement. One of the conditions set forth in Section 3.3 is that “[n]o Default or Event of
Default shall have occurred and be continuing.” (Disb. Agr. § 3.3.3). The term “Default”
is specifically defined in the Disbursement Agreement as “(i) any of the events specified

24

Like the Credit Agreement, the Disbursement Agreement also contains a New York
choice-of-law clause. (Disb. Agr. § 11.6).

25

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in Article 7 . . . and (ii) the occurrence of any ‘Default’ under any Facility Agreement.”
(Disb. Agr., Ex. A at 10). “Facility Agreement” is also specifically defined in the Agreement
as “the Bank Credit Agreement, the Second Mortgage Indenture and the Retail Facility
Agreement.” Id. at 12.
In Paragraphs 129-132 of the Avenue Complaint and Paragraphs 103-111 of the
Aurelius Complaint, Plaintiffs allege specific facts supporting the reasonable inference that
Bank of America, as Disbursement Agent, received notice from a lender in Fall 2008 that
Lehman Brothers defaulted under the Retail Facility Agreement and yet failed to issue a
Stop Funding Notice. Defendant Bank of America does not dispute this. Instead, Bank
of America argues that: (1) the claim is insufficient because the Plaintiffs’ “fail[ed] to attach
th[e] purported ‘notice’ or even identify the lender who sent the alleged communications”;
and (2) pursuant to Section 9.3.2 of the Disbursement Agreement, Bank of America was
“entitled to rely on certifications from [Fontainebleau] as to satisfaction of any requirements
and/or conditions imposed by th[e] [Disbursement Agreement].” [DE 35, pp. 10, 13]. I
reject Bank of America’s first argument, for at the Rule 12(b)(6) stage, I must accept all of
Plaintiffs’ factual allegations in the complaints as true – i.e., Plaintiffs need not support their
factual allegations with documentary evidence at this stage of the proceedings. See Hill,
321 F.3d at 1335. Bank of America’s second argument also fails, as there are no
allegations on the face of the operative complaints establishing that Fontainebleau
“certif[ied]” that Lehman Brothers had not defaulted under the Retail Facility Agreement.25

25

At oral argument, I asked whether there is “anything that anyone could point to in the
complaint one way or the other that refers to Fontainebleau affirmatively certifying that there
was no default”; counsel for Bank of America was unable to reference any such allegation.
[MTD Hr’g Tr. 04:19 p.m.].

26

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While it can certainly be inferred that such representations were made given that
Fontainebleau submitted various Advance Requests subsequent to the Fall of 2008,
inferences of this nature are not appropriately drawn at this stage. To the contrary, it is
well-settled that I must evaluate all reasonable inferences in favor of the Plaintiffs. Wilson
v. Strong, 156 F.3d 1131, 1133 (11th Cir. 1998). Because Plaintiffs’ complaints adequately
allege facts indicating that Bank of America knew of Lehman Brothers’ default under the
Retail Financing Agreement and failed to issue a Stop Funding Notice in violation of the
Disbursement Agreement, Count III of the Aurelius Complaint and Count I of the Avenue
Complaint will not be dismissed.
C.

Breach of the Implied Covenant of Good Faith and Fair Dealing Against
Bank of America – Count III of the Avenue Complaint

Count III of the Avenue Complaint asserts that Bank of America breached the
implied covenant of good faith and fair dealing when it “improperly approved Advance
Requests, issued Advance Confirmation Notices, failed to issue Stop Funding Notices, []
caused the disbursement of funds from the Bank Proceeds Account; and [] fail[ed] to
communicate information to the Term Lenders regarding Events of Default that were
known o[r] should have been known to [Bank of America].” (Avenue Compl. at ¶ 192).
While it is well-settled that breach of the implied covenant of good faith gives rise
to a stand-alone cause of action under New York law, see Granite Partners, L.P. v. Bear,
Stearns & Co., 17 F. Supp. 2d 275, 305 (S.D.N.Y. 1998) (noting that “[b]reach of the [good
faith] covenant gives rise to a cognizable claim”), it is equally settled that “New York law
. . . does not recognize a separate cause of action for breach of the implied covenant of
good faith and fair dealing when a breach of contract claim, based upon the same facts,
27

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is also pled.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002).
In their opposition papers, the Avenue Plaintiffs acknowledge this rule, but contend that it
does not apply because its implied covenant claim is predicated, in part, upon the factual
allegation that Bank of America “failed to communicate information regarding defaults,”
while its Disbursement Agreement claim is not. [DE 52]. This argument is not a novel one,
and has been roundly rejected by New York courts. Alter v. Bogoricin, No. 97-CV-0662,
1997 WL 691332, *1, *7-*8 (S.D.N.Y. Nov. 6, 1997) (rejecting similar argument, dismissing
implied covenant claim, and noting that it has been observed that "every court faced with
a complaint brought under New York law and alleging both breach of contract and breach
of a covenant of good faith and fair dealing has dismissed the latter claim as duplicative”).
The critical inquiry in this respect is not whether the two claims are founded upon
identical facts, but whether the relief sought by Plaintiffs “is intrinsically tied to the damages
allegedly resulting from [the] breach of contract.” Id. (quoting Canstar v. J.A. Jones Constr.
Co., 622 N.Y.S. 2d 730, 731 (App. Div. 1st Dept. 1995)); Deer Park Enterprises, LLC v. Ail
Systems, Inc., 870 N.Y.S. 2d 89, 90 (N.Y. App. Div. 2d Dept. 2008). Because the relief
sought by Avenue Plaintiffs in connection with their implied covenant claim against Bank
of America is “intrinsically tied to the damages allegedly resulting from [the] breach of
contract” alleged in Count I, this claim must be dismissed. Deer Park Enterprises, 870
N.Y.S. 2d at 90 (reversing lower court’s denial of motion to dismiss and concluding that “[a]
cause of action to recover damages for breach of the implied covenant of good faith and
fair dealing cannot be maintained where the alleged breach is ‘intrinsically tied to the
damages allegedly resulting from a breach of the contract’ ”) (quoting Canstar, 622 N.Y.S.

28

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2d at 731).
D.

Breach of the Implied Covenant of Good Faith and Fair Dealing Against
All Defendants – Count IV of the Avenue Complaint

The final claim I must address is the Avenue Plaintiffs’ claim against all Defendants
for breach of the implied covenant of good faith and fair dealing in connection with the
Credit Agreement. In support of this claim, the Avenue Plaintiffs allege that Defendants
“breached the implied covenant [of good faith] by adopting a contrived construction of the
Credit Agreement in order to justify their refusal to fund the March 2 Notice [of Borrowing]
and the March 3 Notice [of Borrowing].” (Avenue Compl. at ¶ 198). Under New York law,
claims for breach of the implied covenant of good faith are unsustainable as a matter of
law if a plaintiff “seek[s] to imply an obligation of the defendants which [is] inconsistent with
the terms of the contract” at issue. Fitzgerald v. Hudson Nat'l Golf Club, 783 N.Y.S. 2d
615, 617-18 (N.Y. App. Div. 2d Dept. 2004) (affirming dismissal of implied covenant claim
where plaintiff sought to imply an obligation inconsistent with the terms of the contract); see
also Dalton v. Educational Testing Service, 87 N.Y. 2d 384, 389 (N.Y. 1995). Because
I have concluded that the purportedly “contrived construction” of “fully drawn” is, in fact, the
correct interpretation, this claim fails as a matter of law, as it seeks to impose an obligation
– i.e., a particular construction of the Credit Agreement’s terms – that is inconsistent with
the terms of the agreement.
V.

Conclusion
Based on the foregoing, I conclude that – with the exception of Count I of the

Avenue Complaint and Count III of the Aurelius Complaint – all claims asserted by the
Plaintiffs warrant dismissal. The dismissal of these claims is with prejudice for two
29

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reasons. First, the facts, circumstances, and applicable law indicate that any attempt to
amend the dismissed claims would be futile; and second, Plaintiffs have failed to state a
claim despite having previously amended their complaints.26 Novoneuron Inc. v. Addiction
Research Institute, Inc., 326 Fed. Appx. 505, 507 (11th. Cir. 2009) (affirming dismissal with
prejudice where Plaintiff amended as a matter of right and later decided to litigate the
merits of Defendant’s motion to dismiss rather than requesting leave to amend); Butler v.
Prison Health Services, Inc., 294 Fed. Appx. 497, 500 (11th Cir. 2008) (“The district court
. . . need not allow an amendment . . . where amendment would be futile.”) (cites and
quotes omitted).
I note that I would normally be inclined to afford Plaintiffs an opportunity to amend
their complaints to assert claims founded upon contractual promises of which they were
the intended beneficiaries (e.g., promises set forth in the Intercreditor Agreement to which
the parties alluded during oral argument). However, because the parties have indicated
that the promises contained in the Intercreditor Agreement are not germane to this action,
[MTD Hr’g Tr. 3:26 p.m. - 3:28 p.m.], I see no reason to invite further amendments.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that:
1.

Defendants’ Motions to Dismiss [DE 35]; [DE 36] are GRANTED IN PART
AND DENIED IN PART.

2.

Counts I and II of the Aurelius Complaint are DISMISSED WITH
PREJUDICE.

26

The Avenue Complaint was amended twice. The Aurelius Complaint was amended

once.

30

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3.

Counts II, III, and IV of the Avenue Complaint are DISMISSED WITH
PREJUDICE.

4.

Count VI of the Avenue Complaint is DISMISSED WITHOUT PREJUDICE
AS MOOT.

5.

Defendant Bank of America shall Answer Paragraphs 1-178 and 201-203 of
the Avenue Complaint no later than Friday June 18, 2010.

6.

Defendant Bank of America shall Answer Paragraphs 1-131 and 146-153 of
the Aurelius Complaint no later than Friday June 18, 2010.

7.

No later than Friday June 18, 2010, the Avenue Plaintiffs shall file a Notice
with this Court stating whether Count V of the Avenue Complaint seeks
declaratory relief pursuant to state or federal law.

8.

The Clerk is directed to send a copy of this Amended Order to the Clerk of
the Judicial Panel on Multidistrict Litigation.

9.

The Final Judgment previously issued in the Aurelius Action, see Case No.:
10-CV-20236, [DE 53] (S.D. Fla. May 28, 2010), is hereby VACATED.

DONE AND ORDERED IN CHAMBERS at Miami, Florida this 28th day of May,
2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge Bandstra
Counsel of record

31

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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 No. 09-CV-23835

PLAINTIFFS CASPIAN ALPHA LONG CREDIT FUND, L.P., MONARCH MASTER
FUNDING LTD., AND NORMANDY HILL MASTER FUND, L.P.’S DISCLOSURE
STATEMENTS PURSUANT TO F.R.C.P. RULE 7.1
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Plaintiffs, by their counsel,
attach the following Disclosure Statements:
1.

Exhibit A: Disclosure Statement for Plaintiff Caspian Alpha Long Credit Fund,

2.

Exhibit B: Disclosure Statement for Plaintiff Monarch Master Funding Ltd.

3.

Exhibit C: Disclosure Statement for Plaintiff Normandy Hill Master Fund, L.P.

L.P.

Case 1:09-md-02106-ASG Document 81 Entered on FLSD Docket 06/04/2010 Page 2 of 3

Dated: June 4, 2010

By:

/s/ Lorenz Michel Prüss

DIMOND KAPLAN & ROTHSTEIN, P.A.
David A. Rothstein
Fla. Bar No.: 056881
Lorenz Michel Prüss
Fla Bar No.: 581305
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.

2

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on June 4, 2010, a copy of the foregoing
PLAINTIFFS CASPIAN ALPHA LONG CREDIT FUND, L.P., MONARCH MASTER
FUNDING LTD., AND NORMANDY HILL MASTER FUND, L.P.’S DISCLOSURE
STATEMENTS PURSUANT TO F.R.C.P. RULE 7.1 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

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Case 1:09-md-02106-ASG Document 82 Entered on FLSD Docket 06/04/2010 Page 1 of 1

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

1

Undersigned counsel was retained for the limited purpose of filing this
Unopposed Motion for Extension of Time to Respond to Subpoenas dated May 4,

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 1 of 11

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.
________________________________/
NOTICE OF STRIKING AND NOTICE OF RE-FILING MOTION FOR EXTENSION OF
TIME TO RESPOND TO SUBPOENAS DATED MAY 4, 2010
Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC
and Fontainebleau Resorts Properties I, LLC (collectively, “Fontainebleau”), by and through
their undersigned counsel, hereby file this Notice of Striking and Notice of Re-Filing Motion
for Extension of Time to Respond to Subpoenas dated May 4, 2010 and would state as
follows:
1.

On June 4, 2010, Fontainebleau timely filed its Motion for Extension of Time

to Respond to Subpoenas dated May 4, 2010.
2.

Due to computer error, the Motion was improperly loaded onto the Case

Management/Electronic Case Filing system.
3.

Undersigned counsel has been notified by the clerk’s office that the

Motion for Extension of Time to Respond to Subpoenas dated May 4, 2010 needs to be
stricken and re-filed.
4.

As such, Fontainebleau hereby files and serves its Notice of Striking and

Notice of Re-Filing Motion for Extension of Time to Respond to Subpoenas dated May 4,

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 2 of 11

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
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
Glenn J. Waldman
Florida Bar No. 374113
Sarah J. Springer
Florida Bar No. 0070747

2

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MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 7, 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
Glenn J. Waldman
Florida Bar No. 374113
Sarah J. Springer
Florida Bar No. 0070747

3

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 4 of 11

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

ATTORNEYS :

REPRESENTING :

Bradley J. Butwin, Esq.

Bank of America, N.A.

Daniel L. Canton, Esq.

Merrill Lynch Capital Corporation

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.

Bank of America, N.A.

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

4

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 5 of 11

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

REPRESENTING :

Craig V. Rasile, Esq.

JP Morgan Chase Bank, N.A.

HUNTON & WILLIAMS

Barclays Bank PLC

1111 Brickell Avenue, Suite 2500

Deustche Bank Trust Company Americans

Miami, FL 33131

Royal Bank of Scotland PLC

Tel: [phone]/Fax: [phone]

HSH Nordbank AG, New York Branch
Bank of Scotland PLC

David J. Woll, Esq.

JP Morgan Chase Bank, N.A.

Justin S. Stern, Esq.

Barclays Bank PLC

Lisa H. Rubin, Esq.

Deutsche Bank Trust Company Americas

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

JP Morgan Chase Bank, N.A.

Mark D. Bloom, Esq.

Barclays Bank PLC

GREENBERG TAURIG

Deutsche Bank Trust Company Americas

1221 Brickell Avenue

The Royal Bank of Scotland PLC

Miami, FL 33131
Tel: [phone]/Fax: [phone]

5

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 6 of 11

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

REPRESENTING :

Sarah A. Harmon, Esq.

JP Morgan Chase Bank, N.A.

BAILEY KENNEDY

Royal Bank of Scotland PLC

8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tel: [phone]/Fax: [phone]
David J. Woll, Esq.

The Royal Bank of Scotland PLC

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

Sumitomo Mitsui Banking Corporation

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

6

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 7 of 11

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

REPRESENTING :

Robert Gerald Fracasso, Jr.

Sumitomo Mitsui Banking Corporation

SHUTTS & BOWEN
201 S Biscayne Blvd.
Suite 1500 Miami Center
Miami, FL 33131
Tel: [phone]/Fax: [phone]
Aaron Rubinstein, Esq.

HSH Nordbank AG, New York Branch

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]
Aruthur Halsey Rice, Esq.

HSH Nordbank AG, New York Branch

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

7

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 8 of 11

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

REPRESENTING :

Gregory S. Grossman, Esq.

MG Financial Bank, N.A.

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

MB Financial Bank, N.A.

LEWIS & ROCA LLP
50 W. Liberty Street
Reno, NV 89501
Tel: [phone]/Fax: [phone]
Peter J. Roberts, Esq.

MB Financial Bank, N.A.

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

Royal Bank of Scotland PLC

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

8

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 9 of 11

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

REPRESENTING :

Anthony L. Paccione, Esq.

Bank of Scotland

KATTEN MUCHIN ROSEMAN LLP

Bank of Scotland PLC

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

Bank of Scotland PLC

KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]
Bruce Judson Berman, Esq.

Camulos Master Fund, L.P.

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

Camulos Master Fund, L.P.

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

9

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 10 of 11

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

REPRESENTING :

Nicholas J. Santoro, Esq.

Camulos Master Fund, L.P.

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

Fontainebleau Las Vegas, LLC

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]
Jeffrey I. Snyder, Esq.

Fontainebleau Las Vegas, LLC

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

10

Case 1:09-md-02106-ASG Document 83 Entered on FLSD Docket 06/07/2010 Page 11 of 11

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

REPRESENTING :

Harold Defore Moorefield, Jr., Esq.

Bank of Scotland PLC

STERNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130
Kenneth E. Noble, Esq.

Bank of Scotland PLC

KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]
Mark D. Bloom, Esq.

Bank of Scotland PLC

GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tel: [phone]/Fax: [phone]
Thomas C. Rice, Esq.

Bank of Scotland PLC

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

11

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 1 of 10

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, FONTAINEBLEAU RESORTS HOLDINGS, LLC
AND FONTAINEBLEAU RESORTS PROPERTIES I, LLC’S MOTION FOR
EXTENSION OF TIME TO RESPOND TO SUBPOENAS DATED MAY 4, 2010
Come now, Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts
Holdings, LLC and Fontainebleau Resorts Properties I, LLC (collectively, “Fontainebleau”),
by and through their undersigned counsel, and pursuant to S.D. Fla. L.R. 7.1 hereby file
this Motion for Extension of Time to Respond to Defendants, JP Morgan Chase Bank,
N.A., Barclays Bank PLC, Deutsche Bank Trust Company Americas and The Royal Bank
of Scotland PLC’s (collectively, “Defendants”), subpoenas dated May 4, 2010, and would
state:
1.

On May 4, 2010, Defendants served each of the above mentioned

Fontainebleau entities with fifty-one item subpoenas. Fontainebleau’s response to same
is due on or before June 4, 2010.
2.

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

to the Request.1
1

Undersigned counsel was retained for the limited purpose of filing this
Unopposed Motion for Extension of Time to Respond to Subpoenas dated May 4,

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 2 of 10

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
3.

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

that she has in good faith made reasonable efforts to confer with counsel for Defendants
with regard to this Motion and the relief sought but has been unable to do so.2
5.

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

granting this Motion.
WHEREFORE, Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts
Holdings, LLC and Fontainebleau Resorts Properties I, LLC , respectfully request that this
Honorable Court enter an order granting its Motion for Extension of Time to Respond to
Subpoenas dated May 4, 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
Glenn J. Waldman
Florida Bar No. 374113
Sarah J. Springer
Florida Bar No. 0070747

2010.
2

Undersigned counsel certifies that she emailed Thomas C. Rice, John B.
Hutton and Mark D. Bloom on June 3, 2010 and June 4, 2010 regarding this Motion and
the relief sought. However, undersigned counsel did not receive a response to these
communications.
2

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 3 of 10

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 4, 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
Glenn J. Waldman
Florida Bar No. 374113
Sarah J. Springer
Florida Bar No. 0070747

3

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 4 of 10

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, LLC, FONTAINEBLEAU
RESORTS HOLDINGS, LLC AND FONTAINEBLEAU RESORTS PROPERTIES I,
LLC’S MOTION FOR EXTENSION OF TIME TO RESPOND TO SUBPOENAS
DATED MAY 4, 2010
THIS CAUSE came before the Court on Fontainebleau Resorts, LLC, Fontainebleau
Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC’s Motion for Extension
of Time to Respond to Defendants, JP Morgan Chase Bank, N.A., Barclays Bank PLC,
Deutsche Bank Trust Company Americas and The Royal Bank of Scotland PLC’s,
Subpoenas dated May 4, 2010. The Court, having considered the Motion, and being
otherwise duly advised in the premises, it is hereupon
ORDERED and ADJUDGED that Fontainebleau Resorts, LLC, Fontainebleau
Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC’s Motion be and the
same is hereby granted. Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings,
LLC and Fontainebleau Resorts Properties I, LLC shall serve their Responses to
Defendants, JP Morgan Chase Bank, N.A., Barclays Bank PLC, Deutsche Bank Trust

4

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 5 of 10

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
Company Americas and The Royal Bank of Scotland PLC’s, Subpoenas dated May 4,
2010, on or before July 5, 2010.
DONE and ORDERED in Miami, Miami-Dade County, Florida, on this _____ day of
May, 2010.
________________________________________
DISTRICT JUDGE ALAN S. GOLD
Copies to:
Glenn J. Waldman, Esq.
Counsel on the attached Service List

5

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 6 of 10

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

6

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 7 of 10

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

7

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 8 of 10

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.

8

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 9 of 10

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

9

Case 1:09-md-02106-ASG Document 84 Entered on FLSD Docket 06/07/2010 Page 10 of 10

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

10

Case 1:09-md-02106-ASG Document 86 Entered on FLSD Docket 06/18/2010 Page 1 of 10

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 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 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

Request. On May 18, 2010, the Court entered an Order granting Fontainebleau’s previous
Motion for Extension of Time. As a result, Fontainebleau’s response to same was due on
or before June 14, 2010.
2.

Despite the diligent efforts of Fontainebleau, circumstances out of its control

prevent the production of any documents at this time. This is partly because the Trustee
in the bankruptcy action presently before Judge Cristol in the United States Bankruptcy

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.).

Case 1:09-md-02106-ASG Document 86 Entered on FLSD Docket 06/18/2010 Page 2 of 10

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
Court2, has taken possession of Fontainebleau’s computer servers. The Trustee will not
allow Fontainebleau to remove any of its documents from those servers at this time. It is
believed that the majority of the documents responsive to the Request are on these
servers.
3.

In addition, documents which may be responsive to the Request are located

in a storage room in Las Vegas. In the next month, the documents in this storage room will
be inventoried and scanned onto discs so that undersigned counsel can readily access and
review the documents for purposes of privilege and responsiveness. As Fontainebleau is
presently unaware of how many documents, or even what kind of documents, are in the
storage room, it is difficult to estimate how much time it will take to scan and then review
the documents for purposes of privilege and responsiveness to this Request.
4.

As a result of the foregoing, Fontainebleau respectfully requests an

additional forty-five (45) days to respond to the Request.
5.

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

that she has attempted to confer with counsel for Plaintiff Term Lenders with regard to this
Motion and the relief sought. However, counsel for Plaintiff Term Lenders did not respond
to undersigned counsel’s email dated June 17, 2010.
6.

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

2

In re: Fontainebleau Las Vegas Holdings, LLC, et al. Case No. 09-21481-AJC.
2

Case 1:09-md-02106-ASG Document 86 Entered on FLSD Docket 06/18/2010 Page 3 of 10

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
this Honorable Court enter an order granting its 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
Glenn J. Waldman
Florida Bar No. 370113
Sarah J. Springer
Florida Bar No. 0070747

3

Case 1:09-md-02106-ASG Document 86 Entered on FLSD Docket 06/18/2010 Page 4 of 10

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 18, 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
Glenn J. Waldman
Florida Bar No. 370113
Sarah J. Springer
Florida Bar No. 0070747

4

Case 1:09-md-02106-ASG Document 86 Entered on FLSD Docket 06/18/2010 Page 5 of 10

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 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, and being advised of the

circumstances which prevent the production of documents at this time, 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 July 29, 2010.
DONE and ORDERED in Fort Lauderdale, Miami-Dade County, Florida, on this
_____ day of June, 2010.
________________________________________
DISTRICT JUDGE ALAN S. GOLD
Copies to:
Glenn J. Waldman, Esq.
Counsel on the attached Service List
5

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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

6

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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

7

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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.

8

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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

9

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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

10

Case 1:09-md-02106-ASG Document 87 Entered on FLSD Docket 06/18/2010 Page 1 of 8

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-cv-23835

NOTICE OF AVENUE PLAINTIFFS’ RESPONSE TO AMENDED MDL ORDER
NUMBER EIGHTEEN REGARDING COUNT V FOR DECLARATORY RELIEF
In the Amended MDL Order Number Eighteen, dated May 28, 2010, the Court ordered
that: “No later than Friday June 18, 2010, the Avenue Plaintiffs shall file a Notice with this Court
stating whether Count V of the Avenue Complaint seeks declaratory relief pursuant to state or
federal law.”
In response, the Avenue Plaintiffs hereby provide notice that they seek declaratory relief
in Count V of their Second Amended Complaint pursuant to Federal Rule of Civil Procedure 57
and 28 U.S.C. § 2201.

Case 1:09-md-02106-ASG Document 87 Entered on FLSD Docket 06/18/2010 Page 2 of 8

Respectfully submitted,

By: /s Lorenz Michel Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz M. 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
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 87 Entered on FLSD Docket 06/18/2010 Page 3 of 8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on June 18, 2010, a copy of the foregoing NOTICE
OF PLAINTIFFS’ RESPONSE TO AMENDED MDL ORDER NUMBER EIGHTEEN
REGARDING COUNT V FOR DECLARATORY RELIEF 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 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

Case 1:09-md-02106-ASG Document 87 Entered on FLSD Docket 06/18/2010 Page 4 of 8

SERVICE LIST

Attorneys:

Representing:

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

Defendants
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
Tele: [phone]
Fax: [phone]

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

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

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deustche Bank Trust Company Americas
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.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

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

-4-

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Attorneys:

Representing:

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

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

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

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
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
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

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

Defendant
Sumitomo Mitsui Banking Corporation

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

Defendant
HSH Nordbank AG, New York Branch

-5-

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Attorneys:

Representing:

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

Defendant
HSH Nordbank AG, New York Branch

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

Defendant
MB Financial Bank, N.A.

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

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendants
MB Financial Bank, N.A.
HSH Nordbank AG

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendants
Bank of Scotland
Bank of Scotland PLC

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Nicholas J. Santoro
SANTORO DRIGGS WALCH KEARNEY
JOHNSON & THOMPSON

Defendant
Camulos Master Fund, L.P.

-6-

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Attorneys:
400 S 4th Street
Third Floor
Las Vegas, NV 89101
Tel:
[phone]
Fax:
[phone]

Representing:

Bruce Judson Berman
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

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

Plaintiff
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
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland PLC

-7-

Case 1:09-md-02106-ASG Document 87 Entered on FLSD Docket 06/18/2010 Page 8 of 8

Attorneys:

Representing:

David Parker, Esq.
Marc R. Rosen, Esq.
KLEINBERG, KAPLAN, WOLFF & COHEN
551 Fifth Avenue
18th Floor
New York, NY 10176
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

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

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
Bast Amron LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

-8-

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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-2106-CIV-GOLD/BANDSTRA
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
This document applies to all actions.
________________________________/
MDL ORDER NUMBER TWENTY1: REFERRING MOTION [DE 86] TO MAGISTRATE

THIS CAUSE is before the Court on Fontainebleau Resorts LLC’s Motion for
Extension of Time [DE 86]. Pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the
Local Rules for the Southern District of Florida, this motion are hereby REFERRED to
United States Magistrate Judge Ted E. Bandstra to take all necessary and proper action
as required by law.
DONE AND ORDERED in chambers at Miami, Florida, this 23rd day of June, 2010.

THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc:

Magistrate Judge Bandstra
Counsel of record

1

MDL Order Number Nineteen appears at docket entry 85.

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