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)

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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 SOLITUDE MASTER FUND, L.P., SOLA LTD, AND SOLUS
CORE OPPORTUNITIES MASTER FUND LTD’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 Solitude Master Fund, L.P.

2.

Exhibit B: Disclosure Statement for Plaintiffs Sola Ltd and Solus Core

Opportunities Master Fund Ltd
Dated: July 30, 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]
-and-

Case 1:09-md-02106-ASG Document 119 Entered on FLSD Docket 07/30/2010 Page 2 of 7

HENNIGAN, 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 July 30, 2010, a copy of the foregoing
PLAINTIFFS CASPIAN SOLITUDE MASTER FUND, L.P., SOLA LTD, AND SOLUS
CORE OPPORTUNITIES MASTER FUND LTD’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

Case 1:09-md-02106-ASG Document 119 Entered on FLSD Docket 07/30/2010 Page 4 of 7

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

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 Americas
The Royal Bank of Scotland PLC

1596091

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Attorneys:

Representing:

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
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
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

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.

1596091

Case 1:09-md-02106-ASG Document 119 Entered on FLSD Docket 07/30/2010 Page 6 of 7

Attorneys:

Representing:

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]

Defendant
MB Financial Bank, N.A.

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

Defendants
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.

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

1596091

Case 1:09-md-02106-ASG Document 119 Entered on FLSD Docket 07/30/2010 Page 7 of 7

Attorneys:

Representing:

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

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.

1596091

Case 1:09-md-02106-ASG Document 119-1 Entered on FLSD Docket 07/30/2010 Page 1 of 2

Exhibit A

Case 1:09-md-02106-ASG Document 119-1 Entered on FLSD Docket 07/30/2010 Page 2 of 2

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.
/
CORPORATE DISCLOSURE STATEMENT OF PLAINTIFF CASPIAN SOLITUDE
MASTER FUND, L.P.
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Plaintiff Caspian Solitude
Master Fund, L.P. discloses the following:
1.

Plaintiff is a limited partnership formed under the laws of Delaware and its sole

general partner is Caspian Credit Advisors, LLC. The Investment Manager for Plaintiff is
Mariner Investment Group, LLC.
2.

The Investment Manager is unaware of any publicly-held company that owns

more than 10% of the limited partnership interests of this Plaintiff or Caspian Credit Advisors,
LLC.

Case 1:09-md-02106-ASG Document 119-2 Entered on FLSD Docket 07/30/2010 Page 1 of 2

Exhibit B

Case 1:09-md-02106-ASG Document 119-2 Entered on FLSD Docket 07/30/2010 Page 2 of 2

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.
/
CORPORATE DISCLOSURE STATEMENT OF PLAINTIFFS SOLA LTD AND SOLUS
CORE OPPORTUNITIES MASTER FUND LTD
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Plaintiffs Sola Ltd and
Solus Core Opportunities Master Fund Ltd disclose the following:
1.

Plaintiffs are each exempted companies with limited liability incorporated under

the laws of the Cayman Islands, whose Investment Advisor is Solus Alternative Asset
Management LP.
2.

Plaintiffs have no parent company and no publicly-held company owns more than

10% of these Plaintiffs’ shares.

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

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.

TERM LENDERS’ MOTION TO COMPEL FONTAINEBLEAU RESORTS, LLC
TO PRODUCE ELECTRONICALLY STORED INFORMATION
IN RESPONSE TO SUBPOENA
Pursuant to Federal Rule of Civil Procedure 45 and Southern District of Florida Local
Rules 7.1 and 26.1, Plaintiffs in the cases captioned Avenue CLO Fund, Ltd., et al. v. Bank of
America, et al., Case No. 09-CV-23835-ASG (S.D. Fla.) and ACP Master, Ltd., et al. v. Bank of
America, N.A., et al., Case No. 10-CV-20236-ASG (S.D. Fla.) (the “Term Lenders”), by and
through their undersigned counsel, hereby move this Court for an order compelling
Fontainebleau Resorts, LLC (“FBR”) to produce all documents, including electronically stored
information, in response to a subpoena issued to FBR on April 22, 2010.

Case 1:09-md-02106-ASG Document 123 Entered on FLSD Docket 08/19/2010 Page 2 of 14

I.

INTRODUCTION
The Term Lenders are lenders under a credit facility (the “Credit Agreement”) for the

financing of the construction of the Fontainebleau Resort and Casino in Las Vegas (the
“Project”). On June 9, 2009, the borrower under the Credit Agreement, Fontainebleau Las
Vegas, LLC (the “Borrower”), commenced a bankruptcy proceeding in the United States
Bankruptcy Court for the Southern District of Florida. Thereafter, the Term Lenders filed this
action against Bank of America N.A. (“BofA”) and a number of Revolving Lenders
(collectively, the “Bank Defendants”), to recover for losses resulting from BofA’s breaches of
the Credit Agreement and related Master Disbursement Agreement.
On April 22, 2010, the Term Lenders served a subpoena (the “Subpoena”) on FBR, the
parent of the Borrower, seeking information regarding the Project. FBR has yet to produce any
electronic documents in response to the Subpoena. Instead, FBR has raised the same objections
it advanced in seeking to quash subpoenas served by the Bank Defendants in this case—namely,
that its electronic documents are stored on servers that also house documents belonging to the
Debtors and other FBR affiliates. FBR asserts that it cannot produce its documents without the
consent of its affiliates, but it refuses to provide a timetable for when that might occur. The
Court rejected similar arguments raised by FBR in denying FBR’s motion to quash the Bank
Defendants’ subpoena and ordered FBR to produce documents by September 17, 2010. The
Court should similarly overrule FBR’s objections to the Term Lenders’ Subpoena and direct it to
produce, on a similar timetable, all responsive documents.
II.

BACKGROUND
A.

The Project

The Term Lenders are lenders under a June 6, 2007 Credit Agreement that provided
$1.85 billion in bank financing to Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas

2

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II, LLC (together, the “Borrower”)1 for the development and construction of the Fontainebleau
Las Vegas Resort and Casino in Las Vegas, Nevada. (See Declaration of Robert W. Mockler In
Support Of Term Lenders’ Motion to Compel Fontainebleau Resorts, LLC to Produce
Electronically Stored Information in Response to Subpoena, attached as Exhibit 1 (“Mockler
Decl.”), at ¶ 2). On June 9, 2009, the Borrower and certain of its affiliates (together with
Borrower, the “Debtors”) filed for bankruptcy. (Id.).
B.

The Subpoena

FBR is the parent of the Debtors. On April 22, 2010, the Term Lenders served the
Subpoena on FBR. (Mockler Decl., Ex. A). The Subpoena seeks documents regarding the
Project, including communications between FBR and the Debtors, construction documents and
documents regarding the Project’s finances.

(Id.).

These documents are relevant to

understanding the course of the construction on the Project, the use of funds disbursed under the
Credit Agreement, as well as the defaults and failed conditions precedent under the Credit
Agreement and the Disbursement Agreement that form the basis for the Term Lenders’ claims
against BofA. (Mockler Decl., at ¶ 3).
C.

FBR’s Failure to Produce Electronic Materials

In response to the Subpoena, FBR stated that its electronic documents were stored on
servers shared with other entities and that those servers would need to be reviewed for
responsiveness and privilege. On a phone call with the Term Lenders’ counsel on May 4, 2010,
FBR’s counsel Sarah Springer stated that the Trustee in the bankruptcy case was in control of the
servers on which FBR documents were stored. (Mockler Decl., at ¶ 4 & Ex. B). Ms. Springer
said that FBR would be discussing with the Trustee a process for review and production of the

1

Those entities merged in 2009; the surviving entity, the Debtor, is Fontainebleau Las Vegas,
LLC.

3

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documents on the servers. She asserted that the servers were being maintained and preserved
and that no documents on them would be destroyed. (Id.).
In a June 9, 2010 letter to the Term Lenders’ counsel, Ms. Springer stated that FBR did
not have access to its electronic documents because the Trustee had taken possession of the
servers or was not allowing removal of any information. (Mockler Decl., Ex. C). On June 17,
Ms. Springer indicated that the “servers are still in possession of the Trustee. There is nothing
my client can do, at present, to remove its documents from those servers.” (Mockler Decl., Ex.
D).
On July 28, 2010, counsel for the Term Lenders again spoke with Ms. Springer, who,
contrary to all previous claims, asserted for the first time that FBR’s electronic documents were
not in the Trustee’s control but instead were stored on: (i) an accounting server in a Las Vegas
co-location facility; (ii) a document server at that facility; and (iii) an e-mail server in Miami.
(Mockler Decl., at ¶ 6). Ms. Springer did not know who had control of the accounting and
document servers at the co-location facility in Las Vegas. (Id.). She asserted that the e-mail
server was in the possession of one of FBR’s subsidiaries, Fontainebleau Miami. (Id.).
When asked what steps had been taken to protect the data on the servers, counsel had no
clear answer. (Mockler Decl., at ¶ 7). She stated that the Trustee, FBR, FBR’s Florida affiliates
and the Turnberry entities had spoken and were making sure that the data was protected. (Id.).
When pressed, however, Ms. Springer could not provide any details about what steps had been
taken. (Id.). She further stated that the accounting and document servers were being copied by
David Chin, an IT employee of FBR’s Florida affiliates. (Id.). But she conceded that there was
no current plan in place to copy the e-mail server. (Id.).
Ms. Springer indicated that copying the servers was only the first step in the process.
(Mockler Decl., at ¶ 8). She said that, following copying, all affected parties would be provided

4

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with a copy of the servers, and those parties would then have the opportunity to review them and
assert objections to production. (Id.). Ms. Springer could not provide any estimate of when
copying would be done or when the process of review and objection would begin or conclude.
(Id.). She said that an agreement between the affected parties was being drafted but could not
say when that agreement would be completed or even what the status was. (Id.). She promised
to talk to Mr. Chin and to other affected parties and get back to the Term Lenders. (Id.).
On a call on August 2, 2010, counsel for FBR had little additional information. (Mockler
Decl., at ¶ 9). She stated that the agreement between the affected parties still had not been
drafted. (Id.). She further stated that she was unwilling to agree to any schedule for production
of electronic documents. (Id.).
After obtaining multiple extensions of the time to respond, FBR served objections to the
Subpoena on August 3, 2010. (Mockler Decl., Ex. E). The only objection FBR raised is that the
Subpoena “seeks production of documents in Los Angeles and Chicago.” As to electronic
documents, FBR stated:
There are three computer servers which contain documents
responsive to this request. While FBR owns the servers, the
servers were historically used and shared by related entities. As
such, the information on the servers does not belong exclusively to
FBR. In fact, certain information on the servers belongs solely to
entities other than FBR. The servers are in the process of being
copied and distributed to all entities with information on them.
Once that is complete, all documents responsive to this request that
belong to FBR will be produced to the Plaintiff Term Lenders.
(Id., at ¶ 1 n.2).2 FBR provided no timetable for its production of documents from the servers.

2

FBR has indicated that it has no documents that are responsive to seven of the 41 requests in
the Subpoena (Nos. 7, 9, 11, 12, 18, 21 and 30). Accordingly, the Term Lenders seek an order
compelling FBR to produce documents in response to the remaining 34 requests.

5

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D.

This Court Rejects FBR’s Motion to Quash the Bank Defendants’ Subpoenas

On July 6, 2010, FBR filed a motion to quash (D.E. 93) subpoenas served on it in this
multi-district litigation by four of the Bank Defendants—JP Morgan Chase, N.A., Barclays Bank
PLC, Deutsche Bank Trust Company Americas and the Royal Bank of Scotland PLC. Among
other things, FBR argued that the “time-consuming undertaking” of “sorting” documents on
servers and dividing them among the interested parties justified quashing the Bank Defendants’
subpoena. (Mockler Decl., Ex. F, p. 3). This Court rejected FBR’s arguments. On August 5,
2010, the Court denied the motion to quash (D.E. 120), finding that FBR “failed to meet its
burden of demonstrating that compliance with the subject subpoenas would be unreasonable and
oppressive.” (Mockler Decl., Ex. G.) The Court ordered FBR to complete its production in
response to the subpoenas by September 17, 2010. (Id.).
III.

FBR SHOULD BE COMPELLED TO PRODUCE DOCUMENTS IN RESPONSE
TO THE SUBPOENA
Pursuant to Federal Rule of Civil Procedure 45 and Southern District of Florida Local

Rules 7.1 and 26.1, the Term Lenders respectfully request that this Court enter an Order
compelling FBR to produce, by September 17, 2010, all documents, including electronic
documents, responsive to the Subpoena.
This Court has already rejected FBR’s objection to the Subpoena. FBR’s motion to
quash the Bank Defendants’ subpoena raised the same issues regarding shared servers that FBR
has offered up in its objection to the Subpoena. This Court properly rejected those arguments
and directed FBR to produce documents. The result should be no different here.
The Subpoena seeks relevant information regarding the management of the construction
Project, the use of funds disbursed by the lenders and the events leading up to and reasons for the
bankruptcy filing.

(Mockler Decl., at ¶ 3 & Ex. A).

As FBR has conceded, they have

documents, including electronic documents, that are responsive to the subpoena. See also Fed.

6

Case 1:09-md-02106-ASG Document 123 Entered on FLSD Docket 08/19/2010 Page 7 of 14

R. Civ. P. 45(d)(1) (setting out rules for production of electronic materials). And FBR raises no
valid objection to production.
The documents are in the possession, custody and control of FBR. So “long as the party
has the legal right or ability to obtain the documents from another source upon demand, that
party is deemed to have control.” Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160 (3d
Cir. Pa. 2004) (applying Fed. R. Civ. P. 34). In its objections, FBR concedes that “FBR owns
the servers.” (Mockler Decl., Ex. E). Moreover, FBR has indicated that it has asked for a copy
of the servers and that such a copy will be provided to them, further confirming that it has
control of them.
FBR takes the position that it needs more time. This is disingenuous. The Subpoena was
served four months ago. Since then, FBR has done nothing to review or produce its electronic
information.

FBR has had more than enough time to respond to discovery, and will be

responding to discovery from the Bank Defendants, pursuant to the Court’s Order, by September
17, 2010. FBR should be compelled to respond to the Term Lenders’ Subpoena on the same
schedule.
IV.

CONCLUSION
For the foregoing reasons, the Term Lenders request that this Court enter an Order

compelling FBR to produce, by September 17, 2010, all documents, including electronic
documents, responsive to the Subpoena.
V.

LOCAL RULE 7.1(a)(3) CERTIFICATION
Pursuant to Local Rule 7.1(a)(3), counsel for the Term Lenders certifies that the Term

Lenders have, as described above, engaged in a series of telephone calls and e-mails with Ms.
Springer, counsel for FBR, in a good faith effort to resolve the issues raised in the motion and
have been unable to do so.

7

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Wherefore, the Term Lenders respectfully request that the Court enter an Order
compelling FBR to produce, by September 17, 2010, all documents, including electronic
documents, responsive to the Subpoena, and any other relief that is just proper.

Respectfully submitted,

By: /s/ Lorenz Michel Prüss
_
Lorenz Michel Prüss, Esq.
Fla. Bar No.: 581305
David A. Rothstein, Esq.
Fla. Bar No.: 056881
DIMOND KAPLAN & ROTHERSTEIN PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]

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

-andJ. Michael Hennigan, Esq. (admitted pro hac vice)
Kirk D. Dillman, Esq. (admitted pro hac vice)
HENNIGAN, BENNETT & DORMAN LLP
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]

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

Attorneys for Plaintiffs Avenue CLO Fund, LTD.,
et al.
Attorneys for Plaintiffs ACP Master, Ltd. and
Aurelius Capital Master, Ltd.

8

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing TERM LENDERS’
MOTION TO COMPEL FONTAINEBLEAU RESORTS, LLC TO PRODUCE
ELECTRONICALLY STORED INFORMATION IN RESPONSE TO SUBPOENA was filed
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record or pro se parties identified on the attached Service List in
the manner specified either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically the Notice of Electronic Filing.
Dated: August 19, 2010

By: /s/ Lorenz Michel Prüss
Lorenz Michel Prüss

Case 1:09-md-02106-ASG Document 123 Entered on FLSD Docket 08/19/2010 Page 10 of 14

SERVICE LIST
Attorneys:

Representing:

Sarah J. Springer, Esq.
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
Weston Pointe II, Suite 202
2200 N. Commerce Parkway
Weston, FL 33326-3258
Tele: [phone]
Fax: [phone]

Fontainebleau Resorts, LLC

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
Tele: [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
Tele: [phone]
Fax: [phone]

Bank of America, N.A.

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

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

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

Case 1:09-md-02106-ASG Document 123 Entered on FLSD Docket 08/19/2010 Page 11 of 14

Attorneys:

Representing:

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

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

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

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]

Sumitomo Mitsui Banking Corporation

11

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Attorneys:

Representing:

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

HSH Nordbank AG, New York Branch

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

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]

MB Financial Bank, N.A.

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [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 60654
Tele: [phone]
Fax: [phone]

MB Financial Bank, N.A.

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

Royal Bank of Scotland PLC

12

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Attorneys:

Representing:

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

Bank of Scotland
Bank of Scotland PLC

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

Bank of Scotland PLC

Bruce Judson Berman, Esq.
MCDERMOTT WILL & EMERY LLP
201 S Biscayne Boulevard, Suite 2200
Miami, FL 33131-4336
Tele: [phone]
Fax: [phone]

Camulos Master Fund, L.P.

Andrew B. Kratenstein, Esq.
Michael R. Huttonlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173-1922
Tele: [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
Tele: [phone]
Fax: [phone]

Fontainebleau Las Vegas LLC

13

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Attorneys:

Representing:

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]

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]

Bank of Scotland PLC

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

Bank of Scotland PLC

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

Bank of Scotland PLC

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

Bank of Scotland PLC

Harley E. Riedel, Esq.
Russell M. Blain, Esq.
Susan H. Sharp, Esq.
STICHTER, RIEDEL, BLAIN & PROSSER,
P.A.
110 E. Madison Street, Suite 200
Tampa, FL 33602
Tele: [phone]
Fax: [phone]

Soneet R. Kapila, Chapter 7 Trustee

14

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Robert Mockler
From:
Sent:
To:
Subject:

Sarah Springer [[e-mail]]
Thursday, June 17, 2010 10:57 AM
[e-mail]; Robert Mockler
Fontainebleau Resorts, LLC: Extension of Time

Steven and Robert,
I am writing regarding the April 22, 2010 subpoena served on my client, Fontainebleau Resorts, LLC, by Plaintiff Term
Lenders’ Steering Group in the Contract Litigation matter before Judge Gold.
I trust you received the letter I sent last week regarding the predicament my client is in due to the conversion of the
bankruptcy action. The servers are still in the possession of the Trustee. There is nothing my client can do, at present, to
remove its documents from those servers. There is, however, a storage room in Las Vegas which contains an unknown
number of documents belonging to my client and perhaps other Fontainebleau entities.
The plan is for the documents in the Storage Room to be inventoried and scanned onto discs in early July, finally giving
my firm access to these documents. As neither I nor my client knows how many documents are in this storage room, it is
difficult to say how long it will take to do this and then to also review the documents for purposes of privilege and
responsiveness.
As such, my client does not have any documents that it can produce in response to your subpoena right now. Please
advise if you would be willing to grant my client a 45 day extension (i.e. up to and through July 29, 2010) to respond to
your subpoena.
Sincerely,
Sarah J. Springer, Attorney at Law
Waldman Trigoboff Hildebrandt Marx & Calnan, P.A.
Weston Pointe II Suite 202
2200 N. Commerce Parkway
Weston, FL 33326 - 3258
Telephone: [phone] ext. 106
Facsimile: 954-467-6222
E-Mail:
[e-mail]

1

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page 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.
________________________________/
FONTAINEBLEAU RESORTS, LLC, FONTAINEBLEAU RESORTS HOLDINGS, LLC
AND FONTAINEBLEAU RESORTS PROPERTIES I, LLC’S MOTION TO QUASH
DEFENDANTS’ SUBPOENAS DATED MAY 4, 2010
Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC (collectively, “The FBR Entities”), by and through
their undersigned counsel, and pursuant to Fed. R. Civ. P. 45, hereby serve their Motion
to Quash 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 “Subpoenas”), and would state:
1.

On May 4, 2010, Defendants served each of The FBR Entities with the

Subpoenas. The Subpoenas each contain fifty-one categories of documents which the
Defendants seek to obtain from The FBR Entities. These extremely broad Subpoenas
generally seek the production of a wide variety of documents which relate to the
Fontainebleau project in Las Vegas. For example, request no. 9 seeks “[a]ll [d]ocuments
[c]oncerning [c]ommunications between Fontainebleau Resorts and Fontainebleau, its
shareholders, management, members, financial advisors, board of directors, auditors or

Case 1:09-md-02106-ASG Document 123-7 Entered on FLSD Docket 07/06/2010 Page 22 of 11
Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
accounts [c]oncerning the Project.”
2.

Responding to just this one, overbroad request would cause an undue

burden or expense to The FBR Entities as it asks for every communication between The
FBR Entities and Fontainebleau Las Vegas, LLC, Fontainebleau Las Vegas II, LLC,
Fontainebleau Las Vegas Holdings, LLC, Fontainebleau Las Vegas Retail, LLC and/or
Fontainebleau Las Vegas Capital Corporation (the “Debtors”) and each of their
predecessors, successors, affiliates, divisions, subsidiaries, parents, members, officers,
representatives, agents and/or employees, including without limitation, their attorneys,
investment bankers and advisers acting or purporting to act on its or their behalf regarding
a multibillion dollar development which was years in the making – literally and figuratively.
3.

Responding to the Subpoenas would further cause an undue burden on The

FBR Entities because of the recent conversion of the Fontainebleau Las Vegas Bankruptcy
action from Chapter 11 to Chapter 71. The Trustee has recently taken possession of the
computer servers which are owned by Fontainebleau Resorts, LLC (one of The FBR
Entities) but which contain documents belonging to various Fontainebleau and Turnberry
Construction entities, including the Debtors. As such, The FBR Entities do not have
possession of or control over those computer servers which, upon in formation and belief,
contain the vast majority of the documents sought in the Subpoenas.
4.

Undersigned counsel and counsel for the other Fontainebleau-related

1

Undersigned counsel is referring to the matter titled In re: Fontainebleau Las
Vegas Holdings, LLC, et al. presently pending before Judge Cristol in the United States
Bankruptcy Court of the Southern District of Florida (Case No. 09-21481-AJC).
2

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
entities have been in contact with the Trustee and the Trustee’s counsel, Russel Blain, in
attempts to coordinate the removal of each entity’s information from the servers. In
connection therewith, the Trustee has decided that each entity will receive a full copy of
each of the servers. Each entity will then have to review all of the documents on the
servers to determine which documents belong to them, which documents belong to
multiple entities, which documents are privileged and which documents are responsive to
any outstanding discovery requests or subpoenas, as here. Deciding which documents
belong to which entities will be a time-consuming undertaking due to the number of
documents as well as anticipated disputes over ownership of the documents.
5.

After this sorting process is complete, if any of the entities with information

on the servers wish to produce documents in response to discovery requests or
subpoenas, they will have to provide each entity which received a copy of the servers with
an opportunity to examine what is being produced in order to confirm that documents
belonging to the non-producing entity are not being produced.
6.

Due to the number of parties involved and despite the best efforts of

undersigned counsel, the servers have not even been copied yet. Thus, it is unknown how
many documents are on the servers or how long it will take to complete the above
described process.
7.

In addition to the overbreadth of the documents requested and the

production problems raised by the recent conversion to Chapter 7 of the bankruptcy action,
the subpoenas are also objectionable in that Defendants ask The FBR Entities produce the
documents for inspection and copying at the offices of Simpson Thacher & Bartlett LLP in
3

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
New York, New York. The FBR Entities are based in South Florida where this action is
pending. Due to the number of documents sought, it would be overly burdensome to
produce the documents in New York. The FBR Entities have not been requested, and no
not agree, to produce documents in New York or in any other foreign location purely for the
convenience of Defendants’ attorney.
8.

With respect to non-party discovery, Florida law states that the court must
“weigh factors such as relevance, the need of the party for the
documents, the brea[d]th of the document request, the time
period covered by the document requests and the particularity
with which the documents are described against the burden
imposed on a person ordered to produce the desired
information. Courts must also consider the status of a witness
as a non-party when determining the degree of the burden; the
status of a person as a non-party is a factor often weighing
against disclosure.”

United Technologies Corp. v. Mazer, WL788877, S.D. Fla. Mach 14, 2007. The FBR
Entities are not parties to this litigation. The breadth of the subpoenas themselves – at fiftyone items, each– and the breadth of each of the items requested2 also weighs against
disclosure. These factors, combined with the Trustee’s plan for the servers which, upon
information and belief, contain the vast majority of the documents requested, demonstrate
that The FBR Entities would be subjected to an enormous burden should the subpoenas
not be quashed.
9.

In accordance with S.D. Fla. L.R. 7.1A.3(a), counsel for FBR has conferred

2

For example, item no. 26 asks for “[a]ll [d]ocuments [c]oncerning [y]our
[c]ommunications with Fontainebleau relating to this [a]ction” and “[a]ll [d]ocuments
[c]oncerning [c]ommunications with, to or from Turnberry West, or any general contractor
concerning the Project.”
4

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
with counsel for Defendants in an effort to resolve by agreement the issues raised in this
Motion prior to filing same but counsel were unable to resolve same.
WHEREFORE, Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts
Holdings, LLC and Fontainebleau Resorts Properties I, LLC, respectfully request this
Honorable Court enter an Order quashing the Subpoena dated May 4, 2010 consistent
herewith.

WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 202
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

5

/s Sarah J. Springer
Glenn J. Waldman
Florida Bar No. 374113
Sarah J. Springer
Florida Bar No. 0070747

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /BANDSTRA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 6, 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

6

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

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

7

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

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

8

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Case 1:09-md-02106-ASG Document 93
Entered on FLSD Docket 08/19/2010 Page of 11

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.

9

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11

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

10

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11

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

11

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Case 1:09-md-02106-ASG Document 120 Entered on FLSD Docket 08/19/2010 Page 1 of 2

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Case 1:09-md-02106-ASG Document 120 Entered on FLSD Docket 08/19/2010 Page 2 of 2

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:09-md-02106-GOLD/BANDSTRA

In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 02106
This document relates to:
Case No. 1:09-cv-21879-ASG
/

CHAPTER 7 TRUSTEE’S NOTICE OF INTENTION
WITH REGARD TO CASE NO. 1:09-cv-21879-ASG
Soneet R. Kapila, as Chapter 7 Trustee (the “Trustee”) for Fontainebleau Las
Vegas Holdings, LLC, et al.,1 in compliance with the Court’s directive given during the
July 20, 2010 telephonic status conference conducted in this matter and the Court’s MDL
Order Number 25; Granting Chapter Seven Trustee’s Motion for Extension of Time
[DE 96] in Part; Requiring Submission; Setting Telephone Status Conference
[D.E. # 111], hereby gives notice of his position with regard to the prosecution of Case
No. 1:09-cv-21879-ASG, as follows:
1.

Fontainebleau Las Vegas, LLC, individually and as successor by merger

to Fontainebleau Las Vegas II, LLC (“Fontainebleau”), commenced an action against
1

By Order entered in this action on July 15, 2010 (D.E. # 104), Soneet R. Kapila, the Chapter 7
Trustee for Fontainebleau Las Vegas Holdings, LLC, et al., was substituted for Fontainebleau Las Vegas
Holdings, LLC, et al., the former Debtors in Possession under Chapter 11 of Title 11 of the United States
Code (the “Bankruptcy Code”).

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 2 of 14

certain lenders (the “Revolver Banks”) in the United States Bankruptcy Court for the
Southern District of Florida (the “Bankruptcy Court”) by filing a complaint on June 9,
2009, and an amended complaint on June 10, 2009 (Adv. Proc. No. 09-ap-01621-AJC,
Bankr. S.D. Fla.).
2.

Fontainebleau’s amended complaint asserts seven claims for relief, all of

which arise out of the Revolver Banks’ improper failure to fund, and subsequent
purported termination of, their commitments under a June 6, 2007 credit agreement (the
“Credit Agreement”) relating to the development of the Fontainebleau Las Vegas resort
and casino. Fontainebleau’s amended complaint seeks relief against the Revolver Banks
upon the following grounds:
(a)

(b)

breach of contract based on the Revolver Banks’ improper
April 20, 2009 termination of their revolving loan commitments
under the Credit Agreement (Count II);

(c)

breach of contract based on the Revolver Banks’ failure to fund a
subsequent April 21, 2009 Notice of Borrowing (the “April 21
Notice”) (Count III);

(d)

equitable estoppel (Count IV);

(e)

breach of the implied covenant of good faith and fair dealing
(Count V);

(f)

intentional interference with contractual relations (Count VI); and

(g)
3.

breach of contract based on the Revolver Banks’ failure to fund a
March 2, 2009 Notice of Borrowing (the “March 2 Notice”)
(Count I);

turnover, pursuant to 11 U.S.C. § 542, of the funds that were
subject to the March 2 Notice (Count VII).

On the same day that it filed its amended complaint, Fontainebleau moved

for partial summary judgment as to Counts I and VII—i.e, its claim based on the March 2

2

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 3 of 14

Notice and its turnover claim. The substance of Fontainebleau’s position in its summary
judgment motion is that the Revolver Banks were obligated to honor the March 2 Notice
because all explicit contractual conditions had been satisfied—including, in particular,
the contractual requirement that certain term loans be “fully drawn,” a requirement that
was satisfied when Fontainebleau requested those loan proceeds, rather than later, when
those proceeds were actually funded—and because the Credit Agreement required the
Revolver Banks to honor the March 2 Notice regardless of the existence of any alleged
defaults by Fontainebleau. Fontainebleau did not move for summary judgment on any of
the other counts of the amended complaint.
4.

On August 5, 2009, after Fontainebleau’s summary judgment motion had

been fully briefed and argued before the Bankruptcy Court, the District Court granted the
Revolver Banks’ motion to withdraw the reference from the Bankruptcy Court,
commencing Case No. 1:09-cv-21879-ASG. The District Court then held additional oral
argument on Fontainebleau’s pending summary judgment motion. Thereafter, on
August 26, 2009, the District Court issued an order (the “August 26 Order”) denying the
motion [Case No. 1:09-cv-21879-ASG, D.E. # 62], in which the Court ruled that—
(a)

the “unambiguous meaning of the term ‘fully drawn’ is fully
funded” as a matter of law;

(b)

in the alternative, “[t]he term ‘fully drawn’ can reasonably be
interpreted to mean ‘fully funded,’” thus creating an issue of fact;

(c)

regardless of the meaning of “fully drawn,” there existed a genuine
issue of material fact as to whether Fontainebleau was in default as
of the date it submitted the March 2 Notice, which issue of fact the
Court found precluded summary judgment; and

(d)

Fontainebleau as a matter of law could not obtain a turnover of

3

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 4 of 14

property that is “in dispute.”
5.

Following the Court’s ruling, Fontainebleau requested that the Court

certify the August 26 Order for appeal pursuant to 28 U.S.C. § 1292(b) [Case No.
1:09-cv-21879-ASG, D.E. # 98]. The Court denied Fontainebleau’s request on
February 4, 2010 [Case No. 1:09-cv-21879-ASG, D.E. # 128].
6.

There are presently pending two related actions filed by certain lenders

(the “Term Lenders”)—ACP Master, Ltd., et al. v. Bank of America, N.A., et al., Case
No. 1:10-cv-20236-ASG (S.D. Fla.), and Avenue CLO Fund, Ltd., et al. v. Sumitomo
Mitsui Banking Corporation, et al., Case No. 1:09-cv-23835-ASG (S.D. Fla.)—in which
the plaintiffs allege claims against the Revolver Banks nearly identical to the claims
raised by Fontainebleau and arising from the same breaches of the Credit Agreement.
The Term Lenders’ actions and Fontainebleau’s action were centralized in this Court as
this instant multidistrict case for pretrial proceedings pursuant to an order issued by the
United States Judicial Panel on Multidistrict Litigation. In Re Fontainebleau Las Vegas
Contract Litigation, Case No. 1:09-md-02106-ASG (S.D. Fla.) [D.E. # 1].
7.

Following centralization, the Revolver Banks moved to dismiss the

complaints filed by the Term Lenders, relying heavily on the August 26 Order. On
May 28, 2010, the Court granted the Revolver Banks’ motions almost in their entirety, on
grounds similar to those set forth in the August 26 Order [Amended MDL Order Number
Eighteen] [D.E. # 80] (the “May 28 Order”). The Court found, first, that the Term
Lenders did not have standing to enforce the Revolver Banks’ obligations. The Court
held in the alternative that the Revolver Banks had not breached the Credit Agreement by

4

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 5 of 14

rejecting the March 2 Notice—and that the Term Lenders had failed as a matter of law to
state a claim for such breach—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.”
8.

The Trustee respectfully submits that the Court’s August 26 Order,

particularly in light of the Court’s May 28 Order granting in part the Revolver Banks’
motion to dismiss the related Term Lenders’ actions, is claim- and case-dispositive with
respect to Fontainebleau’s claims arising out of the March 2 Notice (to which the Trustee
succeeded upon the conversion of the Fontainebleau bankruptcy cases from cases under
Chapter 11 to cases under Chapter 7 of the Bankruptcy Code). By finding as a matter of
law that the “unambiguous meaning of the term ‘fully drawn’ is fully funded,” the Court
foreclosed recovery upon any of Fontainebleau’s claims based on the Revolver Banks’
failure to fund their obligations under the Credit Agreement arising out of the March 2
Notice. The Trustee therefore submits that further proceedings in this Court with respect
to those causes of action would be futile and that litigating those claims to final judgment
would constitute a wasteful and unproductive utilization of the Court’s and the parties’
time and resources.
9.

The Trustee has not been able to settle Case No. 09-cv-21879-ASG.

10.

The Trustee reports that he does not intend to pursue the claims (Counts I

and VII) that have been fully decided by the Court’s claim-dispositive August 26 Order

5

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 6 of 14

and that he will request that the Court enter judgment as to those claims.2
11.

The Trustee also reports that, prior to seeking the entry of judgment on

Counts I and VII, he intends to seek consent from all parties and/or leave of Court
pursuant to Fed. R. Civ. P. 15(a) to withdraw Counts II through IV of the Amended
Complaint. See, e.g., Caspary v. Louisiana Land & Exploration Co., 725 F.2d 189, 191
(2d Cir. 1984) (per curiam) (“[W]e see no reason why [plaintiff] should not be allowed to
amend his complaint in order to delete all of his claims not already tried below as long as
it is done with prejudice. . . . It is inconceivable that the district court would hold
[plaintiff] to claims that he no longer wishes to press. After the amendment was granted,
we would have jurisdiction of the appeal under 28 U.S.C. § 1291. . . .”). Counts V and
VI having been previously withdrawn, without prejudice, by stipulation of the parties
[D.E ## 65, 70], no further report is appropriate with respect to those counts.
12.

Following the withdrawal of Counts II through IV, the Trustee will request

that the Court, consistent with the case-dispositive nature of the August 26 Order, dismiss
Fontainebleau’s first and seventh claims (Counts I and VII)—the claim based on the
March 2 Notice and the turnover claim—with prejudice. Following from the dismissal,
the Trustee will request that the Court cause a final judgment to be entered against the
Trustee in accordance with its dismissal order, from which the Trustee may appeal.
WHEREFORE, the Trustee respectfully submits the foregoing as his report and
2

The United States Court of Appeals for the Eleventh Circuit has held that where, as here, an
otherwise interlocutory order is case-dispositive, the Court may dismiss the case with prejudice and enter
an appealable judgment against the plaintiff. See, e.g., OFS Fitel, LLC v. Epstein, 549 F.3d 1344, 1357-58
(11th Cir. 2008) (“[B]y basing its dismissal on that case-dispositive event, the district court effectively
made that contested interlocutory expert exclusion order [an appealable] final order,” as plaintiff “stands
adverse to the resulting final judgment that was expressly based on the undisputed case-dispositive nature
of the contested interlocutory ruling.”).

6

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 7 of 14

notice of intention in compliance with the Court’s directive given during the July 20,
2010 telephonic status conference conducted in this matter and the Court’s MDL Order
Number 25.
DATED: August 20, 2010.
Respectfully submitted,

/s/ Susan Heath Sharp
Harley E. Riedel (Florida Bar No. 183628)
E-mail: [e-mail]
Russell M. Blain (Florida Bar No. 236314)
E-mail: [e-mail]
Susan Heath Sharp (Florida Bar No. 716421)
E-mail: [e-mail]
STICHTER, RIEDEL, BLAIN & PROSSER, P.A.
110 East Madison Street, Suite 200
Tampa, Florida 33602
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR SONEET R. KAPILA,
CHAPTER 7 TRUSTEE FOR FONTAINEBLEAU
LAS VEGAS HOLDINGS, LLC, et al.
—AND—
David M. Friedman
E-mail: [e-mail]
Jed I. Bergman
E-mail: [e-mail]
Seth A. Moskowitz
E-mail: [e-mail]
Gavin D. Schryver
E-mail: [e-mail]
KASOWITZ, BENSON, TORRES & FRIEDMAN, LLP
1633 Broadway
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
SPECIAL COUNSEL FOR SONEET R. KAPILA,
CHAPTER 7 TRUSTEE FOR FONTAINEBLEAU
LAS VEGAS HOLDINGS, LLC, et al.

7

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 8 of 14

CERTIFICATE OF SERVICE
20th

I HEREBY CERTIFY that, on this

day of August, 2010, the foregoing

Chapter 7 Trustee’s Notice of Intention with Regard to Case No. 1:09-cv-21879-ASG
was electronically filed with the Clerk of the Court using the Court’s CM/ECF system,
and true and correct copies of the Notice were served upon counsel of record or pro se
parties identified on the attached Service List either via CM/ECF or, with respect to
counsel and parties not authorized to receive electronic notices by CM/ECF, via United
States Mail.

/s/ Susan Heath Sharp
Susan Heath Sharp (Florida Bar No. 716421)

11625-001.133.14

8

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 9 of 14

SERVICE LIST
In re Fontainebleau Las Vegas Holdings, LLC, et al.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:09-md-02106-ASG

Counsel:

Party Represented:

Brett M. Amron, Esquire
BAST AMRON LLP
1440 SunTrust International Center
One Southeast Third Avenue
Miami, FL 33131

ACP Master, Ltd.
Aurelius Capital Master, Ltd.
Aurelius Capital Management, LP
Aurelius Capital Management, LP

David Parker, Esquire
Marc R. Rosen, Esquire
KLEINBERG, KAPLAN, WOLFF & COHEN
551 Fifth Avenue, 18th Floor
New York, NY 10176

James B. Heaton, III, Esquire
Steven J. Nachtwey, Esquire
BARTLIT BECK HERMAN PALENCHAR & SCOTT
54 West Hubbard Street, Suite 300
Chicago, IL 60610

Eric D. Winston, Esquire
QUINN EMANUEL URQUHART
OLIVER AND HEDGES, LLP
865 South Figueroa Street, 10th Floor
Los Angeles, CA 90017

9

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 10 of 14

Counsel:

Party Represented:

Bruce Bennett, Esquire
Sidney P. Levinson, Esquire
Kirk D. Dillman, Esquire
HENNIGAN BENNETT & DORMAN
865 South Figueroa Avenue, Suite 2900
Los Angeles, CA 90017

Avenue CLO Fund, Ltd.
Avenue CLO IV, Ltd.
Avenue CLO V, Ltd.
Avenue CLO VI, Ltd.
Battalion CLO 2007-I Ltd.
Brigade Leveraged Capital Structures Fund, Ltd.
Canyon Capital Advisors, LLC
Carlyle High Yield Partners 2008-1, Ltd.
Caspian Capital Partners, L.P.
Caspian Corporate Loan Fund, LLC
Caspian Select Credit Master Fund, Ltd.
Duane Street CLO 1, Ltd.
Duane Street CLO II, Ltd.
Duane Street CLO III, Ltd.
Duane Street CLO IV, Ltd.
Encore Fund LP
Fortissimo Fund
ING International (II) - Senior Bank Loans Euro
ING International (II) - Senior Bank LoansUSD
ING Investment Management CLO I, Ltd.
ING Investment Management CLO II, Ltd.
ING Investment Management CLO III, Ltd.
ING Investment Management CLO IV, Ltd.
ING Investment Management CLO V, Ltd.
ING Senior Income Fund LFC2
Loan Funding LLC
Mariner OpportunitiesFund, LP
Nuveen Floating Rate Income Fund
Nuveen Floating Rate Income Opportunity Fund
Nuveen Senior Income Fund
Southfork CLO, Ltd.
Symphony CLO I, Ltd.
Symphony CLO III, Ltd.
Symphony CLO V, Ltd.
Symphony Credit Opportunity Fund, Ltd.

David A. Rothstein, Esquire
Lorenz Michel Prüss, Esquire
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Coconut Grove, FL 33133

Michael I. Goldberg, Esquire
Joan M. Levit, Esquire
AKERMAN SENTERFITT & EIDSON
1600 Las Olas Centre
350 East Las Olas Boulevard
Fort Lauderdale, FL 33301-0006

Veer Cash Flow CLO, Limited
Venture II CLO 2002, Limited
Venture III CLO Limited
Venture IV CLO Limited
Venture IX CLO Limited
Venture V CLO Limited
Venture VI CLO Limited
Venture VII CLO Limited
Venture VIII CLO Limited
Vista Leveraged Income Fund

10

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 11 of 14

Counsel:

Party Represented:

Thomas C. Rice, Esquire
Justin S. Stern, Esquire
David J. Woll, Esquire
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954

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

Mark D. Bloom, Esquire
John B. Hutton, III, Esquire
GREENBERG TRAURIG
1221 Brickell Avenue
Miami, FL 33131

Sarah A. Harmon, Esquire
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148

Sumitomo Mitsui Banking Corporation

Frederick D. Hyman, Esquire
Jason I. Kirschner, Esquire
Jean-Marie L. Atamian, Esquire
MAYER BROWN LLP
1675 Broadway
New York, NY 10019

Robert G. Fracasso, Jr., Esquire
SHUTTS & BOWEN
1500 Miami Center
201 South Biscayne Boulevard
Miami, FL 33131

11

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 12 of 14

Counsel:

Party Represented:

Philip A. Geraci, Esquire
Aaron Rubinstein, Esquire
Andrew W. Kress, Esquire
KAYE SCHOLER, LLP
425 Park Avenue
New York, NY 10022

HSH Nordbank AG

Arthur H. Rice, Esquire
RICE PUGATCH ROBINSON & SCHILLER
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, FL 33301

MB Financial Bank, N.A.

Gregory S. Grossman, Esquire
ASTIGARRAGA DAVIS MULLINS & GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131

Laury M. Macauley, Esquire
LEWIS & ROCA LLP
50 West Liberty Street
Reno, NV 89501

Alvin S. Goldstein, Esquire
FURR & COHEN
Suite 337-W One Boca Place
2255 Glades Road
Boca Raton, FL 33431

Peter J. Roberts, Esquire
SHAW GUSSIS FISHMAN GLANTZ
WOLFSON & TOWBIN LLC
321 North Clark Street, Suite 800
Chicago, IL 60654

12

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 13 of 14

Counsel:

Party Represented:

Kenneth E. Noble, Esquire
Anthony L. Paccione, Esquire
Arthur S. Linker, Esquire
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585

Bank of Scotland PLC

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

Camulos Master Fund, L.P.

Bruce J. Berman, Esquire
Andrew B. Kratenstein, Esquire
Michael R. Huttenlocher, Esquire
MCDERMOTT WILL & EMERY LLP
201 South Biscayne Boulevard, Suite 2200
Miami, FL 33131

Nicholas J. Santoro, Esquire
SANTORO DRIGGS WALCH KEARNEY JOHNSON &
THOMPSON
400 South 4th Street, Third Floor
Las Vegas, NV 89101

Fontainebleau Las Vegas LLC, et al.

Scott L. Baena, Esquire
Jeffrey I. Snyder, Esquire
Jay M. Sakalo, Esquire
BILZIN SUMBERG BAENA PRICE & AXELROD
200 South Biscayne Boulevard, Suite 2500
Miami, FL 33131-2336

13

Case 1:09-md-02106-ASG Document 124 Entered on FLSD Docket 08/20/2010 Page 14 of 14

Counsel:

Party Represented:

Bradley J. Butwin, Esquire
Daniel L. Cantor, Esquire
Jonathan Rosenberg, Esquire
William J. Sushon, Esquire
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036

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

Craig V. Rasile, Esquire
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131

Wilmington Trust FSB as Administrative Agent

Stephen D. Busey, Esquire
James H. Post, Esquire
SMITH HULSEY & BUSEY
225 Water Street, Suite 1800
Jacksonville, FL 32202

14

Case 1:09-md-02106-ASG Document 125 Entered on FLSD Docket 08/23/2010 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.
_________________________________/
MDL ORDER NUMBER 28; REFERRING MOTION TO MAGISTRATE JUDGE
THIS CAUSE is before the Court upon the Term Lenders’ Motion to Compel [ECF
No. 123]. Pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules for
the Southern District of Florida, this Motion [ECF No. 123] is hereby REFERRED to United
States Magistrate Judge Jonathan Goodman to take all necessary and proper action as
required by law.
DONE AND ORDERED in chambers at Miami, Florida, this 20th day of August,
2010.

THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE

cc:
Magistrate Judge Chris M. McAliley
All counsel of record

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 1 of 15

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

In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
FONTAINEBLEAU RESORTS, LLC’S RESPONSE TO TERM LENDERS’
MOTION TO COMPEL DATED AUGUST 19, 2010
Third Party, Fontainebleau Resorts, LLC (“FBR”)1, by and through its undersigned counsel
and pursuant to Fed. R. Civ. P. 45 and S.D.Fla. L.R. 7.1, hereby files and serves its response to Term
Lenders’2 Motion to Compel FBR to Produce Electronically Stored Information in Response to
Subpoena, and states:
A.

Background
1.

FBR was served with the Term Lenders’ subpoena on April 22, 2010 (the

“Subpoena”). On May 12, 2010 undersigned counsel’s firm was retained for the limited purpose of
filing the Unopposed Motion for Extension of Time dated May 13, 2010. The Motion was granted.
2.

Thereafter, undersigned’s firm was retained to substantively respond to the

Subpoena. FBR timely filed its Response to the Subpoena on August 3, 2010.

1

FBR is the parent company of the Debtors in the action titled In re: Fontainebleau Las
Vegas Holdings, LLC, et al., Case No. 09-21481-AJC (Bankr. S.D.Fla.).
2

Term Lenders are 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 127 Entered on FLSD Docket 08/25/2010 Page 2 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
3.

FBR explained in its Response to the Subpoena and to counsel for Term Lenders that

there are three computer servers which are likely to contain information responsive to the Subpoena:
(1) the document server, (2) the email server, and (3) the accounting server. All three servers were
historically housed in Las Vegas and were used by multiple Fontainebleau-related entities. While
FBR owns the servers (i.e. the hardware), FBR does not own all of the information on the servers
(i.e. the stored, commingled data).
4.

As a result of the commingled information on the servers – some of which is

privileged – FBR entered into an oral agreement with each entity that has information on the servers
and which oral agreement would be reduced to writing.3 The oral agreement requires that each entity
will thereafter be given a copy of the document server and the accounting server. Each entity will
be given a certain amount of time to determine what information on the servers (i) belongs to them
and (ii) is privileged. Thereafter, once any ownership disputes are resolved, each entity will
undertake to produce all documents which belong to them.4
5.

Despite the best efforts of all parties involved, the servers were not fully copied

until August 20, 2010 and FBR did not receive its copy of the document server and the accounting
server until August 24, 2010.

3

The oral agreement which governs production of documents from the servers is, upon
information and belief, presently being drafted by the Trustee’s counsel, Russell Blain.
Undersigned counsel spoke with Trustee’s counsel and was assured he would draft the
agreement. However, three subsequent emails regarding when the agreement would be finished
have gone unanswered.
4

Undersigned counsel cannot give a time line for the proposed production of documents
because the agreement had not yet been drafted.
2

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 3 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
6.

In addition to the document and accounting servers, FBR now has a copy of the email

server.5 As the email server contains emails belonging to FBR and the debtor in the Fontainebleau
Las Vegas bankruptcy action, the same oral agreement will govern document production therefrom.
B.

Term Lenders’ Motion to Compel
7.

The Term Lenders filed a Motion to Compel against FBR on August 19, 2010. The

Term Lenders set forth their version of what has occurred since FBR was served with the Subpoena.
FBR will respond to each statement, in turn, below.
8.

On May 4, 2010, undersigned advised that the Trustee was in physical control of the

servers on which FBR documents were stored. At that point in time, because it was unclear which
entity owned the servers, the Trustee had taken possession of copies of the document and accounting
servers which were housed in the debtors’ offices in Las Vegas. In addition, because undersigned
counsel was not yet aware of how many servers existed and to which entity/entities the servers
belonged, it was believed and understood that the Trustee had taken control of the servers.
9.

On June 9, 2010, and then again on June 17, 2010, in a continuous effort to keep the

Term Lenders informed of the various server “issues,” undersigned wrote the Term Lenders
explaining the servers’ ownership and stating there was nothing FBR could presently do to produce
documents from the servers because FBR did not own all of the commingled data.
10.

On July 28, 2010, undersigned communicated with counsel for the Term Lenders and

5

The email server that was once used by all three entities and which was historically
housed in Las Vegas is now in the possession of Fontainebleau Florida Hotel, LLC.
Fontainebleau Florida Hotel, LLC made a copy of the email server in May or June, 2010. That
server is now in the possession of FBR.
3

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 4 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
explained that there were three servers which housed documents responsive to the Subpoena: an
accounting server in the Las Vegas colocation facility; a document server in the Las Vegas
colocation facility; and, an email server (formerly in the colocation facility but relocated to Miami
in January, 2010). Undersigned explained, again, that while FBR owned the servers themselves,
multiple entities owned the information on the servers. Undersigned counsel also explained that the
accounting and document servers currently housed in the colocation facility were being remotely
copied as part of the above-described oral agreement.
11.

What has made these document production matters more complicated, and perhaps

explains some of the mischaracterizations made by counsel for the Term Lenders in its Motion to
Compel, is that copies of these servers were made at different times and by different entities. For
example, in or around January, 2010, the Debtors made copies of the document and accounting
servers. The Trustee took possession of these copies in May 2010.6 In addition, Fontainebleau
Florida Hotel, LLC made a copy of the email server in May or June 2010.
12.

The Term Lenders claim that undersigned could not provide details on what steps

have been taken to protect the data on the servers. However, undersigned explained to counsel for
Term Lenders that information on the servers had not been and was not presently being deleted,
destroyed or overwritten at any time.
C.

Conclusion
13.

Term Lenders have asked that the Court order FBR to produce all documents

responsive to the Subpoena by September 17, 2010. While this would ordinarily be more than

6

The Trustee is still in possession of these copies.
4

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 5 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
sufficient time to respond to a subpoena, due to the complexities caused by dealing with multiple
parties (one of which is in bankruptcy) who have a stake in the document production at issue, FBR
asks that the Court deny the Term Lenders’ Motion to Compel and refer this matter to a General
Magistrate to conduct an evidentiary hearing and to set reasonable time frames for FBR to produce
documents responsive to the Subpoena.

WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 202
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

5

/s Sarah J. Springer
Glenn J. Waldman
Florida Bar No. 374113
Sarah J. Springer
Florida Bar No. 0070747

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 6 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 25, 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

6

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 7 of 15

MASTER CASE NO .: 09-MD- 02106-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]

7

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 8 of 15

MASTER CASE NO .: 09-MD- 02106-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]

8

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 9 of 15

MASTER CASE NO .: 09-MD- 02106-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]

9

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 10 of 15

MASTER CASE NO .: 09-MD- 02106-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.
RICE

PUGATCH

HSH Nordbank AG, New York Branch
ROBINSON

&

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

10

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 11 of 15

MASTER CASE NO .: 09-MD- 02106-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]

11

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 12 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
ATTORNEYS:

REPRESENTING :

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]
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]

12

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 13 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
ATTORNEYS:

REPRESENTING :

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]
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]

13

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 14 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
ATTORNEYS:

REPRESENTING :

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]
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]

14

Case 1:09-md-02106-ASG Document 127 Entered on FLSD Docket 08/25/2010 Page 15 of 15

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /BANDSTRA
ATTORNEYS:

REPRESENTING :

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]

15

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 1 of 8

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

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.

NOTICE OF CALL-IN INFORMATION FOR TELEPHONIC HEARING ON TERM
LENDERS’ MOTION TO COMPEL FONTAINEBLEAU RESORTS, LLC
TO PRODUCE ELECTRONICALLY STORED INFORMATION
IN RESPONSE TO SUBPOENA
Plaintiffs in the cases captioned Avenue CLO Fund, Ltd., et al. v. Bank of America, et al.,
Case No. 09-CV-23835-ASG (S.D. Fla.) and ACP Master, Ltd., et al. v. Bank of America, N.A.,
et al., Case No. 10-CV-20236-ASG (S.D. Fla.) (the “Term Lenders”), hereby give notice to all
parties of the following call-in information for the hearing on the Term Lenders’ Motion To
Compel Fontainebleau Resorts, LLC to Produce Electronically Stored Information in Response
to Subpoena, set for August 30, 2010 at 2:30 p.m.:
Call-in Number:

[phone]

Passcode:

669349

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 2 of 8

Respectfully submitted,

By: /s/ Lorenz Michel Prüss

_

Lorenz Michel Prüss, Esq.
Fla. Bar No.: 581305
David A. Rothstein, Esq.
Fla. Bar No.: 056881
DIMOND KAPLAN & ROTHERSTEIN PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]

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

-and-

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

-and-

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

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

2

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 3 of 8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF CALL-IN
INFORMATION FOR TELEPHONIC HEARING ON TERM LENDERS’ MOTION TO
COMPEL FONTAINEBLEAU RESORTS, LLC TO PRODUCE ELECTRONICALLY
STORED INFORMATION IN RESPONSE TO SUBPOENA was filed with the Clerk of the
Court using CM/ECF. I also certify that the foregoing document is being served this day on all
counsel of record or pro se parties identified on the attached Service List in the manner specified
either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
the Notice of Electronic Filing.

Dated: August 26, 2010
By: /s/ Lorenz Michel Prüss
Lorenz Michel Prüss

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 4 of 8

SERVICE LIST
Attorneys:

Representing:

Sarah J. Springer, Esq.
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
Weston Pointe II, Suite 202
2200 N. Commerce Parkway
Weston, FL 33326-3258
Tele: [phone]
Fax: [phone]

Fontainebleau Resorts, LLC

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
Tele: [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
Tele: [phone]
Fax: [phone]

Bank of America, N.A.

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

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

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

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 5 of 8

Attorneys:

Representing:

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

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

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

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]

Sumitomo Mitsui Banking Corporation

5

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 6 of 8

Attorneys:

Representing:

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

HSH Nordbank AG, New York Branch

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

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]

MB Financial Bank, N.A.

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [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 60654
Tele: [phone]
Fax: [phone]

MB Financial Bank, N.A.

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

Royal Bank of Scotland PLC

6

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 7 of 8

Attorneys:

Representing:

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

Bank of Scotland
Bank of Scotland PLC

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

Bank of Scotland PLC

Bruce Judson Berman, Esq.
MCDERMOTT WILL & EMERY LLP
201 S Biscayne Boulevard, Suite 2200
Miami, FL 33131-4336
Tele: [phone]
Fax: [phone]

Camulos Master Fund, L.P.

Andrew B. Kratenstein, Esq.
Michael R. Huttonlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173-1922
Tele: [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
Tele: [phone]
Fax: [phone]

Fontainebleau Las Vegas LLC

7

Case 1:09-md-02106-ASG Document 128 Entered on FLSD Docket 08/26/2010 Page 8 of 8

Attorneys:

Representing:

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]

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]

Bank of Scotland PLC

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

Bank of Scotland PLC

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

Bank of Scotland PLC

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

Bank of Scotland PLC

Harley E. Riedel, Esq.
Russell M. Blain, Esq.
Susan H. Sharp, Esq.
STICHTER, RIEDEL, BLAIN & PROSSER,
P.A.
110 E. Madison Street, Suite 200
Tampa, FL 33602
Tele: [phone]
Fax: [phone]

Soneet R. Kapila, Chapter 7 Trustee

8

Case 1:09-md-02106-ASG Document 129 Entered on FLSD Docket 08/30/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-02106-MD-GOLD/GOODMAN
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
____________________________________/
ORDER ON MOTION TO COMPEL
This matter is before the Court on the Term Lenders’ motion to compel (DE#
123), filed August 19, 2010. The motion seeks an order compelling Fontainebleau
Resorts, LCC to produce all documents, including those electronically stored, in response
to a subpoena issued on April 22, 2010.
Fontainebleau has identified three computer servers likely to contain the
information sought in the subpoena.

All three servers are now in Fontainebleau’s

possession. Fontainebleau requests at least a month to screen the servers for responsive,
non-privileged documents.

This is because the documents of parties other than

Fontainebleau, most notably those of the debtors in bankruptcy, are also found on the
servers. During the hearing, Fontainebleau’s counsel represented that just this day the
bankruptcy trustee sent Fontainebleau’s counsel an outline of an agreement on
procedures to review the documents on these servers.
The Term Lenders argue that after four and a half months the Court should
impose an expeditious and firm deadline so as not to interfere with the scheduling order
entered by the Honorable Alan S. Gold. Judge Gold has twice extended discovery
deadlines (See DE# 100, 111) and trial in this case is currently scheduled for February
13, 2010 (DE# 76). The Term Lenders seek an order requiring Fontainebleau to produce
the relevant documents by September 17, 2010, if not earlier.
The Court has reviewed the motion and response thereto, held a hearing on the
motion on August 30, 2010, and is otherwise duly advised. In light of the extended
pendency of this subpoena and in order to accommodate Judge Gold’s trial setting order,
it is hereby ordered that:
1.

The Term Lenders’ motion to compel (DE# 123) is GRANTED.

Case 1:09-md-02106-ASG Document 129 Entered on FLSD Docket 08/30/2010 Page 2 of 2

2.

Fontainebleau shall produce all non-privileged documents subject to the
subpoena on or before September 13, 2010.

3.

Fontainebleau shall provide the Term Lenders with a privilege log on or
before September 20, 2010.

DONE AND ORDERED in Chambers, at Miami, Florida, this 30th Day of
August, 2010.

Copies furnished to:
All counsel of record

2

Case 1:09-md-02106-ASG Document 132 Entered on FLSD Docket 08/31/2010 Page 1 of 1

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 1 of 50

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

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

AURELIUS PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THEIR COMPLAINT
Plaintiffs ACP Master, Ltd., and Aurelius Capital Master, Ltd. (together, “Plaintiffs”)
filed the Amended Complaint in this case on January 15, 2010. Since then, Plaintiffs have
acquired additional debt of Fontainebleau Las Vegas, LLC and have identified additional
predecessors-in-interest. Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs seek
leave to file a Second Amended Complaint (attached hereto as Exhibit A) that identifies
Plaintiffs’ additional predecessors.
Plaintiffs have conferred with Bank of America, N.A., the lone remaining defendant,
regarding this proposed amendment. 1 By letter of August 25, 2010, counsel for Bank of
America, N.A., consented to Plaintiffs’ proposed amendment. (Bank of America’s consent is
attached hereto as Exhibit B.)
In light of Bank of America’s consent, Plaintiffs seek leave to file their Second Amended
Complaint, attached hereto as Exhibit A.

1

This Court dismissed Plaintiffs’ claims against all other Defendants by its Order dated May 28, 2010.

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 2 of 50

DATED: September 13, 2010

Respectfully submitted,

By: _/s/ Brett M. Amron_______
Brett M. Amron, Esq.
Florida Bar No. 148342
Brett M. Amron
BAST AMRON LLP
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
-andJames B. Heaton, III
Steven J. Nachtwey
John D. Byars
Vincent S. J. Buccola
BARTLIT BECK HERMAN PALENCHAR & SCOTT
LLP

54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs ACP Master, Ltd. and
Aurelius Capital Master, Ltd.

2

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 3 of 50

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
Court’s CM/ECF, where available, U.S. Mail and Email on this the 13th day of September, 2010
to:
Daniel L. Cantor
Bradley J. Butwin
Jonathan Rosenberg
William J. Sushon
O’Melveny & Myers LLP
Times Square Tower
7 Times Square
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of America, N.A.;
Merrill Lynch Capital Corporation

Thomas C. Rice
Lisa H. Rubin
David J. Woll
Steven S. Fitzgerald
Simpson Thacher & Bartlett LLP
425 Lexington Ave.
New York, NY 10017-3954
Telephone: [phone]
Facsimile: [phone]
Attorneys for JPMorgan Chase Bank, N.A.;
Barclays Bank PLC; Deutsche Bank Trust
Company Americas; The Royal Bank of
Scotland PLC; Bank of Scotland plc

Craig V. Rasile
Kevin M. Eckhardt
Hunton & Williams
1111 Brickell Ave., Suite 2500
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of America, N.A.;
Merrill Lynch Capital Corporation;
JPMorgan Chase Bank, N.A.; Barclays
Bank PLC; Deutsche Bank Trust Company
Americas; The Royal Bank of Scotland
PLC; Bank of Scotland plc; HSH Nordbank
AG, New York Branch
Mark D. Bloom
John B. Hutton, III
Greenberg Traurig
1221 Brickell Ave.
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for JPMorgan Chase Bank, N.A.;
Barclays Bank PLC; Deutsche Bank Trust
Company Americas; The Royal Bank of
Scotland PLC; Bank of Scotland plc

3

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 4 of 50

Sarah E. Harmon
Bailey Kennedy
8984 Spanish Ridge Avenue
Las Vegas, NV 89148-1302
Telephone: [phone]
Facsimile: [phone]
Attorneys for JPMorgan Chase Bank, N.A.;
Barclays Bank PLC; Deutsche Bank Trust
Company Americas; The Royal Bank of
Scotland PLC
Harold D. Moorefield, Jr.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
Museum Tower
150 W. Flagler St., Suite 2200
Miami, FL 33130
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of Scotland plc

Robert G. Fracasso, Jr.
Shutts & Bowen LLP
201 S. Biscayne Blvd.
1500 Miami Center
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Attorneys for Sumitomo Mitsui Banking
Corporation

Arthur S. Linker
Kenneth E. Noble
Anthony L. Paccione
Katten Muchin Rosenman LLP
575 Madison Ave.
New York, NY 10022-2585
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of Scotland plc

Jean-Marie L. Atamian
Jason I. Kirschner
Frederick D. Hyman
Mayer Brown LLP
1675 Broadway
New York, NY 10019-5820
Telephone: [phone]
Facsimile: [phone]
Attorneys for Sumitomo Mitsui Banking
Corporation
Aaron Rubinstein
Phillip A. Geraci
W. Stewart Wallace
Steven C. Chin
Kaye Scholer LLP
425 Park Ave.
New York, NY 10022-3598
Telephone: [phone]
Facsimile: [phone]
Attorneys for HSH Nordbank AG, New
York Branch

4

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 5 of 50

Arthur H. Rice
Rice Pugatch Robinson & Schiller, P.A.
101 NE 3rd Ave., Suite 1800
Fort Lauderdale, FL 33301
Telephone: [phone]
Facsimile: [phone]

Peter J. Roberts
Shaw Gussis Fishman Glantz Wolfson &
Towbin LLC
321 N. Clark St., Suite 800
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

Attorneys for HSH Nordbank AG, New
York Branch

Attorneys for MB Financial Bank, N.A.

Laury M. Macauley
Lewis and Roca LLP
50 W. Liberty St., Suite 410
Reno, NV 89501
Telephone: [phone]
Facsimile: [phone]

Gregory S. Grossman
Astigarraga Davis Mullins & Grossman
701 Brickell Ave., 16th Floor
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Attorneys for MB Financial Bank, N.A.

Attorneys for MB Financial Bank, N.A.

Andrew B. Kratenstein
Michael R. Huttenlocher
McDermott Will & Emery LLP
340 Madison Ave.
New York, NY 10173-1922
Telephone: [phone]
Facsimile: [phone]

Bruce J. Berman
McDermott Will & Emery LLP
201 S. Biscayne Blvd., Suite 2200
Miami, FL 33131-4336
Telephone: [phone]
Facsimile: [phone]

Attorneys for Camulos Master Fund, L.P.

Attorneys for Camulos Master Fund, L.P.

Jed I. Bergman
David M. Friedman
Seth A. Moskowitz
Kasowitz Benson Torres & Friedman,
LLP
1633 Broadway
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]

Harley E. Riedel
Russell M. Blain
Susan Heath Sharp
Stichter, Riedel, Blain & Prosser, P.A.
110 E. Madison St., Suite 200
Tampa, FL 33602
Telephone: [phone]
Facsimile: [phone]

Attorneys for Soneet R. Kapila (Chapter 7
Trustee for Fontainebleau Las Vegas
Holdings, LLC, et al.)

Attorneys for Soneet R. Kapila (Chapter 7
Trustee for Fontainebleau Las Vegas
Holdings, LLC, et al.)

5

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 6 of 50

Bruce Bennett
Kirk D. Dillman
J. Michael Hennigan
Sidney P. Levinson
Peter J. Most
Lauren A. Smith
Michael C. Schneidereit
Hennigan, Bennett & Dorman LLP
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]

Lorenz M. Pruss
David A. Rothstein
Dimond Kaplan & Rotherstein PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]
Attorneys for Avenue CLO Fund, LTD., et
al.

Attorneys for Avenue CLO Fund, LTD., et
al.

/s/

6

Brett M. Amron__________
Brett M. Amron

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 7 of 50

Exhibit A

7

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 8 of 50

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

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

SECOND AMENDED COMPLAINT
1.

This action seeks to redress wrongs done by Defendants to predecessors-in-

interest of ACP Master, Ltd. and Aurelius Capital Master, Ltd. (“Aurelius” or “Plaintiffs”).
2.

In March 2007, a group of investment bankers, including affiliates of Defendants

(defined below), contacted Plaintiffs’ predecessors-in-interest to participate in financing the
development and construction of the Fontainebleau Resort and Casino in Las Vegas, Nevada
(“the Project”). The Project was to consist of a sixty-three story glass skyscraper featuring over
3,800 guest rooms, suites and condominium units; a 100-foot-high, three-level podium complex
housing casino/gaming areas, restaurants and bars, a spa and salon, a live entertainment theater
and rooftop pools; a 353,000 square-foot convention center; a high-end retail space including
shops and restaurants; and a nightclub.
3.

In June 2007, Plaintiffs’ predecessors-in-interest and Defendants entered into the

Credit Agreement (“Credit Agreement”) to provide funds for the Project.
4.

The borrowers under the Credit Agreement were Fontainebleau Las Vegas LLC

and Fontainebleau Las Vegas II, LLC (the “Borrowers”).

8

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 9 of 50

5.

The Credit Agreement covered three kinds of loans to build the Project: 1 (a) a

$700 million initial term loan facility (the “Initial Term Loan”); (b) a $350 million delay draw
term facility (the “Delay Draw Loan”); and (c) an $800 million revolving loan facility (the
“Revolving Loan”). The lenders are referred to below at times as “Initial Term Loan Lenders,”
“Delay Draw Loan Lenders,” and “Revolving Loan Lenders,” respectively.
6.

Plaintiffs bring this action against Defendants because, to the detriment of

Plaintiffs’ predecessors-in-interest, Defendants refused to fund the Revolving Loan when the
Credit Agreement required them to do so.
JURISDICTION AND VENUE
7.

This Court has jurisdiction over this civil action pursuant to 12 U.S.C. § 632

because Defendants Bank of America, N.A., JPMorgan Chase Bank, N.A., and MB Financial
Bank, N.A. are national banking associations organized under the laws of the United States and
the action arises out of transactions involving international or foreign banking or other
international or foreign financial operations, within the meaning of 12 U.S.C. § 632.
8.

Venue is proper in the United States District Court for the Southern District of

New York because a substantial number of the Defendants reside in New York and transactions
at issue occurred in this District.

THE PARTIES
The Plaintiffs
9.

Plaintiff ACP Master, Ltd. is a Cayman Islands exempt company with no place of

business in the United States and with its principal place of business in the Cayman Islands.
1

Certain other loans were available only after the casino and hotel opened for business.

9

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 10 of 50

Plaintiff Aurelius Capital Master, Ltd. is a Cayman Islands exempt company with no place of
business in the United States and with its principal place of business in the Cayman Islands.
10.

Plaintiffs ACP Master, Ltd. and/or Aurelius Capital Master, Ltd. is the successor-

in-interest to the following Initial Term Loan Lenders and/or Delay Draw Loan Lenders:
Aberdeen Loan Funding, Ltd.; Airlie CLO 2006-Ltd.; Airlie CLO 2006-II Ltd.; American
Express Company Retirement Plan by RiverSource Investments, LLC; Ameriprise Financial
Retirement Plan by RiverSource Investments, LLC; Armstrong Loan Funding, LTD.; Artus Loan
Fund 2007-I, Ltd.; Babson CLO Ltd. 2004-I; Babson CLO Ltd. 2004-II; Babson CLO Ltd. 2005I; Babson CLO Ltd. 2005-II; Babson CLO Ltd. 2005-III; Babson CLO Ltd. 2006-I; Babson CLO
Ltd. 2006-II; Babson CLO Ltd. 2007-I; Babson Loan Opportunity CLO, Ltd. (f/k/a BabsonJefferies Loan Opportunity CLO, Ltd.); Carlyle High Yield Partners 2008-1, Ltd.; Carlyle Loan
Investment Ltd.; Carlyle High Yield Partners VI, Ltd.; Carlyle High Yield Partners VII, Ltd.;
Carlyle High Yield Partners VIII, Ltd; Carlyle High Yield Partners IX, Ltd.; Carlyle High Yield
Partners X, Ltd.; Caspian Capital Partners, L.P.; Caspian Select Credit Master Fund, Ltd.; C.M.
Life Insurance Company; Duane Street CLO I, Ltd.; Duane Street CLO II, Ltd.; Duane Street
CLO IV, Ltd.; Emerald Orchard Limited; Encore Fund, L.P.; (FCT) First Trust/Four Corners
Senior Floating Rate Income Fund II; Fidelity Central Investment Portfolios LLC: Fidelity
Floating Rate Central Investment Portfolio; Flariton Funding; Fortissimo Fund; Four Corners
CLO 2005-1, Ltd.; Four Corners CLO II, Ltd.; Gleneagles CLO, Ltd.; Grand Central Asset Trust
Cameron I Series; Grayson CLO, Ltd.; Greenbriar CLO, Ltd.; Halcyon Loan Investors CLO I,
Ltd.; Halcyon Loan Investors CLO II, Ltd.; Halcyon Structured Asset Management CLO I Ltd.;
Halcyon Structured Asset Management Long Secured/Short Unsecured CLO 2006-1 Ltd.;
Halcyon Structured Asset Management Long Secured Short Unsecured 2007-1 Ltd. (f/k/a

10

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 11 of 50

Halcyon Structured Asset Management Long Secured/Short Unsecured CLO II Ltd.); Halcyon
Structured Asset Management Long Secured/Short Unsecured 2007-2 Ltd.; Halcyon Structured
Asset Management Long Secured/Short Unsecured 2007-3 Ltd. (f/k/a Halcyon Structured Asset
Management Long Secured/Short Unsecured CLO III Ltd.); Halcyon Structured Asset
Management CLO 2008-II B.V.; Highland Credit Opportunities CDO, Ltd.; Illinois Lake Clark
Spiret Loan Trust; Jay Street Market Value CLO I, Ltd.; Jasper CLO, Ltd.; Jefferies Finance CP
Funding LLC; JFIN CLO 2007 Ltd.; LFSIGXG LLC; LL Victory Funding LLC; Loan Funding
IV LLC; Loan Star State Trust; Longhorn Credit Funding, LLC; Mariner LDC; Mariner
Opportunities Fund, LP; Marlborough Street CLO, Ltd.; Massachusetts Mutual Life Insurance
Company; Pequot Credit Opportunities Fund, L.P.; Primus CLO II, Ltd; Pyramis Floating Rate
High Income Commingled Pool; Red River CLO, Ltd.; RiverSource High Yield Bond Fund, a
series of RiverSource High Yield Income Series, Inc.; RiverSource Income Opportunities Fund,
a series of RiverSource Bond Series, Inc.; RiverSource Variable Portfolio – High Yield Bond
Fund, a series of RiverSource Variable Portfolio Income Series, Inc., now known as RiverSource
Variable Portfolio – High Yield Bond Fund, a series of RiverSource Variable Series Trust;
RiverSource Variable Portfolio – Income Opportunities Fund, a series of RiverSource variable
Series Trust; Rockwall CDO II, Ltd.; Sapphire Valley CDO I, Ltd.; SF-3 Segregated Portfolio, a
segregated portfolio of Shiprock Finance, SPC, for which Shiprock Finance, SPC is acting on
behalf of and for the account of SF-3 Segregated Portfolio; Stratford CLO, Ltd.; Southfork CLO,
Ltd.; Symphony CLO I, LTD. Symphony CLO II, LTD.; Symphony CLO III, LTD.; Symphony
CLO IV, LTD.; Symphony CLO V, LTD; and The Bank of Nova Scotia.
The Defendants

11

Case 1:09-md-02106-ASG Document 133 Entered on FLSD Docket 09/13/2010 Page 12 of 50

11.

Defendant Bank of America, N.A. (“BofA”) is a nationally chartered bank with

its main office in Charlotte, North Carolina. Under the Credit Agreement and other Loan
Documents, BofA acted in several capacities, including as a Revolving Loan Lender,
Administrative Agent and Disbursement Agent. BofA committed to fund $100 million under the
Revolving Loan.
12.

Defendant Merrill Lynch Capital Corporation is a Delaware corporation with its

principal place of business in New York. Merrill Lynch Capital Corporation committed to fund
$100 million under the Revolving Loan.
13.

Defendant JPMorgan Chase Bank, N.A. is a nationally chartered bank with its

main office in Columbus, Ohio. JPMorgan Chase Bank, N.A. committed to fund $90 million
under the Revolving Loan.
14.

Defendant Barclays Bank PLC is a public limited company in the United

Kingdom with its principal place of business in London, England. Barclays Bank PLC
committed to fund $100 million under the Revolving Loan.
15.

Defendant Deutsche Bank Trust Company Americas is a New York State-

chartered bank with its principal office in New York, New York. Deutsche Bank Trust
Company Americas committed to fund $80 million under the Revolving Loan.
16.

Defendant The Royal Bank of Scotland PLC is a banking association organized

under the laws of the United Kingdom with a branch in New York, New York. The Royal Bank
of Scotland PLC committed to fund $90 million under the Revolving Loan.
17.

Defendant Sumitomo Mitsui Banking Corporation is a Japanese corporation with

offices in New York, New York. Sumitomo Mitsui Banking Corporation committed to fund $90
million under the Revolving Loan.

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18.

Defendant Bank of Scotland is chartered under the laws of Scotland, with its

principal place of business in Edinburgh, Scotland. Bank of Scotland committed to fund $72.5
million under the Revolving Loan.
19.

Defendant HSH Nordbank AG is a German banking corporation with a branch in

New York, New York. HSH Nordbank AG committed to fund $40 million under the Revolving
Loan.
20.

Defendant MB Financial Bank, N.A. is a nationally chartered bank with its main

office in Chicago, Illinois. MB Financial Bank, N.A. committed to fund $7.5 million under the
Revolving Loan.
21.

Defendant Camulos Master Fund, L.P. is a Delaware corporation with its

principal place of business in Stamford, Connecticut. Camulos Master Fund L.P. committed to
fund $20 million under the Revolving Loan.
22.

All of the above Defendants are referred to below collectively as the

“Defendants.”
NATURE OF THE ACTION
The Structure of the Credit Agreement
23.

The Credit Agreement among the Borrowers, Defendants, Plaintiffs’

predecessors-in-interest, and others was entered into on June 6, 2007.
24.

The Credit Agreement provided for Initial Term Loans of $700 million (all of

which was funded in June 2007), Delay Draw Loans of $350 million, and Revolving Loans of
$800 million.
25.

Plaintiffs’ predecessors-in-interest are each lenders under either the Initial Term

Loan, the Delay Draw Loan, or both.
26.

Defendants all are lenders under the Revolving Loan.

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27.

In addition to being a lender under the Revolving Loan, Defendant BofA acted as

Administrative Agent to all of the lenders under the Credit Agreement and as Disbursement
Agent to all of the lenders under the Master Disbursement Agreement (“Disbursement
Agreement”), which was signed simultaneously and in connection with the Credit Agreement to
control how loan proceeds were spent on the Project.
28.

The purpose of the Credit Agreement was to make funds available for the

construction of the Project.
29.

The loans available under the Credit Agreement were the principal source of

construction financing for the Project and were intended to be virtually the only source of
construction financing remaining after junior sources of construction financing (equity and
second mortgage bonds) were utilized, as was the case before March 2009.
30.

The purpose of the Credit Agreement was to provide for the constant availability

of funds so long as the terms and conditions of the Credit Agreement were met, because all
Lenders would suffer if Project construction came to a halt and, as a result, their collateral value
was destroyed.
31.

Any amounts outstanding under the Initial Term Loan, the Delay Draw Loan and

the Revolving Loan benefit from equal and ratable collateralization by mortgages on the real
property comprising the Project and by security interests on all personal property of the
Borrowers, including all loan proceeds not yet spent.
32.

The Credit Agreement sets forth two kinds of Revolving Loan: (1) “Direct

Loans” and (2) “Disbursement Agreement Loans.” Disbursement Agreement loans are loans
made prior to the “Opening Date,” which effectively is the date when the hotel and casino are
open for business. The Revolving Loans at issue here are Disbursement Agreement loans, so
references below to Revolving Loans are to those that are also Disbursement Agreement loans.

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33.

Disbursement Agreement borrowings under the Credit Agreement occur in two

steps. First, the Borrowers must submit to the Administrative Agent (i.e., BofA) a Notice of
Borrowing specifying the amount of committed but unfunded loans it wishes to receive and the
designated borrowing date. Such a Notice of Borrowing could be submitted only once per
calendar month. The Credit Agreement contemplates a Notice of Borrowing drawing both the
Delay Draw Loan and the Revolving Loan at the same date. For example, section 2.4(b)
contemplates the Administrative Agent receiving a single Notice of Borrowing that obligates it
to “promptly notify each Delay Draw Lender and/or Revolving Lender, as appropriate”
(emphasis added).
34.

Section 2.1(c) states: “The making of Revolving Loans which are Disbursement

Agreement Loans to the Bank Proceeds Account shall be subject only to the fulfillment of the
applicable conditions set forth in Section 5.2, and shall thereafter be disbursed from the Bank
Proceeds Account subject only to the conditions set forth in Section 3.3 of the Disbursement
Agreement” (emphasis in original).
35.

Section 5.2 of the Credit Agreement states:
Conditions to Extensions of Credit controlled by Disbursement Agreement.
The agreement of each Lender to make Disbursement Agreement Loans and
to issue Letters of Credit for the payment of Project Costs pursuant to Section
3.4 of the Disbursement Agreement, is subject only to the satisfaction of the
following conditions precedent:
(a) Notice of Borrowing. 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.
(b) Letters of Credit. In the case of Letters of Credit, the procedures set forth
in Section 3.4 of the Disbursement Agreement shall have been complied with.
(c) Drawdown Frequency. Except for Loans made pursuant to Section 3 with
respect to Reimbursement Obligations, Loans made pursuant to this Section

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shall be made no more frequently than once every calendar month unless the
Administrative Agent otherwise consents in its sole discretion.
36.

The Administrative Agent must promptly notify the lenders of the Notice of

Borrowing. Once notified, each lender must make its pro-rata share of the requested loans
available to the Administrative Agent prior to 10:00 a.m. on the designated borrowing date. The
Administrative Agent, “[u]pon satisfaction or waiver of the applicable conditions precedent,”
transfers the funds (except Delay Draw Loan proceeds used to pay off outstanding balances
under the Revolving Loan pursuant to section 2.1(b)(iii) of the Credit Agreement) into a “Bank
Proceeds Account,” which is essentially a holding account for the loaned funds. As Section 5.2
makes clear, the funding of this first step is not conditioned on representations and warranties or
absence of Events of Default.
37.

Second, the Borrowers must submit an advance request (the “Advance Request”)

to secure disbursements from the Bank Proceeds Account under the Disbursement Agreement. It
is at this second step that Section 3.3 of the Disbursement Agreement – referred to above by
Section 2.1(c)’s requirements for Disbursement Agreement Loans – conditions the disbursement
on the protections afforded by the representations and warranties and absence of default. Article
3.3 of the Disbursement Agreement sets forth the conditions precedent to Advances by the
Disbursement Agent, BofA, including no misrepresentations under the Credit Agreement, no
continuing Events of Default or Defaults, and that the Bank Agent was not aware of any adverse
information that may affect the Project. Pursuant to Article 2.5.1, BofA was required to stop
funding Advance Requests and issue a Stop Funding Notice (i.e., requests by the Borrower to
disburse amounts from the Bank Proceeds Account) if “conditions precedent to an Advance
ha[d] not been satisfied….” Once a Stop-Fund Notice was issued, no disbursements could be
made from the accounts subject to the Disbursement Agreement
38.

Each requested round of Delay Draw Loan was required to be in a minimum

amount of $150 million. This meant that either all $350 million of Delay Draw Loans could be

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requested at once, or the Delay Draw Loans would be requested in two rounds, the first between
$150 million and $200 million and the second for the balance. Once Delay Draw Loans were
repaid, they could not be re-borrowed.
39.

In contrast, each round of Revolving Loans could be requested in a minimum

amount of $5,000,000. This afforded the Borrowers the flexibility to make monthly borrowings
of less than the $150 million minimum denomination applicable to Delay Draw Loans. When
Delay Draw Loans were made, the Borrowers were required to use the proceeds first to pay
down any outstanding Revolving Loans before using them to meet other needs, such as the costs
of the Project. Revolving Loans could be repaid and re-borrowed.
40.

Consistent with this, Section 2.1(c)(iii) of the Credit Agreement states 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.”
41.

The Credit Agreement allows the Borrowers simultaneously to request the

remaining Delay Draw Loans and new Revolving Loans.
42.

Absent this right, there could be months where the Borrowers would have no

funds available to meet current expenditures on the Project, which could be disastrous for the
Borrowers, the Lenders and the construction companies working on the Project.
43.

To illustrate, suppose that the Borrowers received $200 million in the first round

of Delay Draw Loan borrowing, then received two rounds of Revolving Loans totaling $150
million, and used that money in project construction. Suppose the Borrowers thereafter need an
additional $170 million to meet the current month’s construction expenses. If the Borrowers
only receive the remaining $150 million of Delay Draw Loans, all of those funds would be used
to repay the $150 million of Revolving Loans. Thus, the Borrowers would be left without funds
to pay their construction vendors unless the Borrowers could also request $170 million of new
Revolving Loans at the same time they request $150 million of new Delay Draw Loans. If the

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Borrowers could not request both the Delay Draw Loans and the Revolving Loans at the same
time, the Borrowers would be without funds to meet their expenses for another month, when they
could request the next round of Revolving Loans.
The Defendants’ Wrongful Refusal to Fund
44.

On March 2, 2009, the Borrowers issued a Notice of Borrowing drawing the

entire amount available under the Delay Draw Loan and the remaining amount available under
the Revolving Loan (the “March 2 Notice”).

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45.

Approximately $68 million of Revolving Loans had previously been funded

pursuant to prior Notices of Borrowing and remained outstanding on March 2, 2009.
46.

If the March 2 Notice (as corrected by the March 3 Notice described below) had

been honored by the Lenders, (a) the $68 million of previously outstanding Revolving Loans
would have been fully repaid out of the proceeds of the Delay Draw Loan, (b) a new and much
larger Revolving Loan would have been made concurrently with the Delay Draw Loan, and (c)
the amounts funded by the Delay Draw Loan (less the portion used to repay previously
outstanding Revolving Loans) and by the new Revolving Loan would have been placed in the
Bank Proceeds Account, where they would have been subject to the liens of all Lenders under
the Credit Agreement unless and until released to pay the costs of constructing the Project
(which was also subject to the liens of all Lenders).
47.

BofA submitted the March 2 Notice to Revolving Loan Lenders and the Delay

Draw Lenders, and several of the Delay Draw Loan Lenders began to fund.
48.

At 5:30 p.m. Eastern Time on March 2, 2009, BofA led a conference call among

certain lenders to discuss the Notice of Borrowing.
49.

BofA hosted a follow-up conference call at 8:00 a.m. Eastern Time the next

morning, March 3, 2009.
50.

On March 3, 2009, BofA, as the Administrative Agent, sent a letter (the “March 3

Agent Letter”) to the Borrowers stating that it would not process the March 2 Notice.
51.

The Administrative Agent claimed that the March 2 Notice did not comply with

the provisions of Section 2.1(c)(iii) of the Credit Agreement, the provision discussed above
which states 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.”

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52.

The Administrative Agent unilaterally returned funds to those Lenders that had

funded the March 2 Notice.
53.

Other Delay Draw Loan Lenders relied on BofA’s incorrect advice in refusing to

fund pursuant to the March 2 Notice and March 3 Notice.
54.

On March 3, 2009, the Borrowers replied to the Administrative Agent by letter

(the “March 3 Borrower Letter”) advising that the March 3 Agent Letter was in error and urging
the Administrative Agent to reconsider.
55.

The March 3 Borrower Letter explained that the Credit Agreement does not

prevent the Borrowers from requesting the full amount of the Delay Draw Loan and Revolving
Loan pursuant to one Notice of Borrowing.

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56.

The Borrowers also submitted an amended Notice of Borrowing (“March 3

Notice”) to correct a calculation error specifying that the amount sought was actually $656.52
million.

57.

On March 4, 2009, BofA posted on Intralinks (an on-line platform for the

auditable exchange of information among syndicated loan participants) a message available to
the lenders noting that BofA had not changed its position and that, in its view, the Notice of
Borrowing did not comply with the terms of the Credit Agreement.

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58.

In fact, the March 2 Notice and the March 3 Notice were effective in fully

drawing both the Delay Draw Loan and the Revolving Loan. Contrary to BofA’s position and
advice to the Delay Draw Loan Lenders, the March 2 Notice and the substituted March 3 Notice
were valid and enforceable draws on both the Delay Draw Loan and the Revolving Loan.
The Borrowers had satisfied Section 2.1(c)(iii) by submitting the March 2 Notice since, by virtue
of the March 2 Notice the Borrowers had fully drawn the Delay Draw Loan, and, as a
consequence of that full draw, Revolving Loans in excess of $150 million could be outstanding.
Within the meaning of the Credit Agreement and generally, a commitment is “drawn” when a
request for payment is presented (here, a Notice of Borrowing).
59.

In correspondence dated March 23, 2009, BofA, contradicted its own

interpretation of Section 2.1(c)(iii), agreeing with the interpretation stated immediately above—
namely, that the Delay Draw facility was “fully drawn” when the entire amount was requested,
but before it was fully funded. Despite the fact that the Delay Draw Term Loans were never
fully funded, BofA, acting as Disbursement Agent, wrote to the lenders that the Borrowers could
request Revolving Loans in excess of $150 million:
There’s a divergence in opinions as to the reading of 2.1(c)(iii) of the Credit Agreement.
Bank of America’s position is that since the borrower has requested all of the Delay
Draw Term Loans, and almost all of the loans have funded (whether or not the
outstanding $21,666,667 is ultimately received), 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 (emphasis added).
60.

In its letter dated March 23, 2009, BofA also stated it was working to clarify the

so-called “In Balance Test.” The In Balance Test, satisfaction of which is a prerequisite to the
Disbursement Agent’s remitting funds from the Bank Proceeds Account, is defined in the
Disbursement Agreement (and thereby in the Credit Agreement) to mean that, “at the time of
calculation and after giving effect to any requested Advance, Available Funds equal or exceed
the Remaining Costs.” (Disbursement Agreement, Ex. A at 15). The In Balance Test is

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“satisfied,” according to this definition, “when Available Funds equal or exceed Remaining
Costs.” (Id.) “Available Funds” is defined, in turn, to include “as of each date of determination,
the sum of: . . . (viii) the Bank Revolving Availability minus $40,000,000 . . . .” (See id. at 3)
The Disbursement Agreement defines “Bank Revolving Availability” to mean “as of each date
of determination, the aggregate principal amount available to be drawn on that date under the
Bank Revolving Facility.” (See id. at 4) (emphasis added).
61.

In calculating the In Balance Test on March 23, 2009, BofA concluded that

Revolver Availability could now exceed $150 million and that that amount could be reflected in
Available Funds because the Delay Draw Term Loans had been fully requested and almost all of
the loans had funded. Following BofA’s logic, before March 23, 2009, the Revolver Availability
for purposes of calculating the In Balance Test should not have exceeded $150 million.
62.

In fact, however, and contrary to BofA’s position on March 3, 2009, BofA

consistently had determined in every month prior to March 2009 that the Revolver Availability
for purposes of calculating the In Balance Test was between $682 million and $760 million, not
$150 million. In other words, BofA consistently had determined that the available amount of
Revolver Loans to be “drawn on that date” was between $682 and $760 million. Had BofA not
calculated the Bank Revolver Availability to be between $682 million and $760 million,
Fontainebleau would not have satisfied the In Balance Test for most months for which a
disbursement was requested. BofA’s position that on March 3, 2009 there was no “Revolver
Availability” in excess of $150 million was flatly inconsistent with its acceptance of the
Borrower’s understanding of the In Balance Test in every month up to that date.
63.

BofA’s refusals to process the March 2 Notice and March 3 Notice because, as

BofA claimed, the notices were inconsistent with Section 2.1(c)(iii) of the Credit Agreement did
not reflect BofA’s true interpretation of Section 2.1(c)(iii) of the Credit Agreement. BofA’s true
interpretation of Section 2.1(c)(iii) of the Credit Agreement was evidenced by BofA’s

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calculation of the In Balance Test and BofA’s own admissions in its March 23, 2009
correspondence with Borrowers. BofA’s refusals to process the March 2 Notice and March 3
Notice were willful misconduct, grossly negligent, and in bad faith.

The Delay Draw Loan Lenders Cure Their Breach, But The Revolving Loan Lenders Do
Not
64.

On March 6, 2009, the Borrowers sent a letter to the Administrative Agent again

noting that the Administrative Agent had improperly failed and refused to process the Notice of
Borrowing based on a contrived construction of Section 2.1 of the Credit Agreement. The letter
also noted that other lender parties to the Credit Agreement had informed the Borrowers that
they disagreed with the Administrative Agent’s interpretation.
65.

On March 9, 2009, the Borrowers, while reserving their position that the March 2

Notice and the March 3 Notice were valid, and stating their belief that BofA “may be acting in
its own self-interest” by failing to process the notices, issued a revised Notice of Borrowing (the
“March 9 Notice”) directed solely to the Delay Draw Loan Lenders.

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66.

BofA sent the March 9 Notice to the Delay Draw Loan Lenders, and Plaintiffs’

predecessors-in-interest funded their commitments under the Delay Draw Loan. In all, the Delay
Draw Loan Lenders funded approximately $337 million of the $350 million Delay Draw Loan.
Plaintiffs’ predecessors-in-interest entirely funded their own commitments under the Credit
Agreement and have fully performed all of their obligations thereunder.
67.

As required by Section 2(b)(iii) of the Credit Agreement, BofA applied

approximately $68 million of the amounts so lent by the Delay Draw Loan Lenders to repay the
Revolving Loans that predated the March 2 notice. As a Revolving Lender, BofA stood to
benefit by failing to issue a Stop Funding Notice as Disbursement Agent prior to March 9, 2009,
that would have suspended any Delay Draw Term Loans otherwise to be used to repay BofA’s
25% share of the then outstanding Revolving Loans.
68.

By funding the March 9 Notice, Plaintiffs’ predecessors-in-interest cured their

breach of the Credit Agreement in failing to fund the March 2 Notice and March 3 Notice.
69.

On March 19, 2009, over sixty Delay Draw Term Loan lenders wrote to BofA as

Administrative Agent to demand that the Revolving Lenders, including BofA, honor the March
2, 2009 and corrected March 3, 2009 Notices of Borrowing. These Delay Draw Term Loan
lenders explained why the interpretation of “fully drawn” BofA was now announcing was
erroneous. These lenders stated that BofA’s conduct as Administrative Agent indicated “a
conflict of interest relating to its $100,000,000 Revolving Commitment exposure,” and that
BofA should either correct its conduct or resign as agent. (After Merrill Lynch's merger with
Bank of America Corp., BofA became exposed to the $100 million funding commitment of
defendant Merrill Lynch.)
70.

The Defendants failed to cure their own breach of the March 2 Notice and March

3 Notice. The Defendants never funded the remaining commitment of the Revolving Loan that
the Borrowers validly drew in the March 2 Notice and March 3 Notice.

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The Revolving Lenders Again Fail to Fund A Notice of Borrowing on April 21, 2009
71.

On April 21, 2009, the Borrowers sent a Notice of Borrowing (the “April 21

Notice”) to the Revolving Loan Lenders to borrow $710,000,000 under the Revolving Loan.
72.

The Revolving Loan Lenders refused to honor the April 21 Notice.

73.

On April 20, 2009, Defendants told the Borrower they were terminating their

Revolving Loan commitments. Defendants did not identify or set forth the Events of Default
upon which they were relying to terminate their commitment. As such, Defendants’ purported
termination of their Revolving Loan commitments was not a valid notice to the Borrower.

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74.

Because Plaintiffs’ predecessors-in-interest met their commitments under the

Delay Draw Loan and Initial Term Loan while Defendants failed to meet their commitments
under the Revolving Loan in response to the March 2 Notice, the March 3 Notice, and the April
21 Notice, Plaintiffs’ predecessors-in-interest were injured.

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Plaintiffs’ Interest in Enforcing the Credit Agreement Against the Defendants
75.

The Credit Agreement is a multi-party agreement. The parties to the Agreement

are the Borrowers, the Initial Term Loan Lenders, the Delay Draw Loan Lenders, and the
Revolving Loan Lenders, as well as all successors-in-interest of any of those parties.
76.

Under the Agreement, the Initial Term Loan Lenders and the Delay Draw Loan

Lenders had an interest in and relied upon their ability to enforce loan commitments made by the
Revolving Lenders, since those commitments were critical to financing the construction of the
Project, and any cash provided by the Revolving Lenders would be collateral security for the
Initial Term Loans and the Delay Draw Term Loans.
77.

Upon entering the Agreement, each lender understood that a wrongful refusal to

fund loan commitments would jeopardize the completion of the Project, diminishing the amount
and value of the other lenders’ collateral. As such, all lenders agreed to share the risks of the
lending transaction ratably in proportion to each of the lenders’ commitments. The structure of
the entire contract evidences the understanding and contractual intent that each lender would be
bound to the Borrowers and to one another for its lending commitments.
78.

Because any significant refusal to fund by any lender had the potential to destroy

the economic viability of the Project and to impair the collateral of those that had funded, the
lenders all agreed that any refusal to fund the Revolving Loan could be based only upon certain
specified breaches, and then only after a default had been formally declared.
79.

“Upon receipt of each Notice of Borrowing…,” the Agreement provides that each

lender “will make the amount of its pro rata share of each borrowing...” (Credit Agreement
Section 2.4(b)). The Agreement further provides that “[t]he failure of any Lender to make any
Loan… shall not relieve any other Lender of its corresponding obligation to do so…” (Credit
Agreement Section 2.23(g)).

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80.

The Revolving Loan Lenders had an obligation, not just to the Borrowers, but

also to their co-lenders, to fund in response to the Notices of Borrowing. Indeed, as the
Borrowers acknowledged in their March 9 Notice, BofA was “acting in its own self-interest in
derogation of the [Credit] Agreement, and against the interests of the [Borrowers] and several of
the other Lenders.”
81.

Plaintiffs’ predecessors-in-interest fulfilled their funding obligations as Initial

Term Lenders and Delay Draw Lenders under the Credit Agreement. However, the Revolving
Loan Lenders failed to cure their breach in which they refused to fund after the Notices of
Borrowing on March 2 and 3, 2009.
82.

The Revolving Loan Lenders’ failure to perform their contractual obligations

reduced the amount and value of the collateral securing the loans of Plaintiffs’ predecessors-ininterest, contrary to their bargained-for rights and benefits under the Credit Agreement and
Disbursement Agreement.
83.

The Revolving Loan Lenders’ failure to follow the terms of the Credit

Agreement, and to cure their breach, created the exact scenario the parties contracted to avoid,
where the Initial Term Lenders and Delay Draw Loan Lenders were left bearing all of the losses
while the Revolving Loan Lenders breached their obligations.
BofA’s Improper Funding of Advance Requests
84.

In addition to being a large Revolving Loan Lender and the Administrative Agent

under the Credit Agreement, BofA served as the Disbursement Agent under the related
Disbursement Agreement. As Disbursement Agent, it was BofA’s responsibility to ensure that
cash lent to the Borrower under the Credit Agreement was initially held in a Bank Proceeds
Account as collateral for the Loans and would only be released from that account and spent by
the Borrower as needed for the project and subject to important conditions.

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As Disbursement Agent, BofA agreed to “exercise commercially reasonable efforts and utilize
commercially prudent practices in the performance of its duties [under the Disbursement
Agreement] consistent with those of similar institutions holding collateral, administering
construction loans and disbursing disbursement control funds.” (Disbursement Agreement 9.1).
BofA agreed to exhibit the standard of care exercised by similarly situated disbursement agents.
85.

This standard of care requires the Disbursement Agent, among other things, to

determine if the conditions precedent to disbursing funds have been met including: that no
Default or Event of Default has occurred and is continuing; that each “representation and
warranty of (a) [e]ach Project Entity set forth in Article 4 [of the Disbursement Agreement] shall
be true and correct in all material respects as if made on such date….”; that the In Balance Test is
satisfied; that “[i]n the case of each Advance from the Bank Proceeds Account made
concurrently with or after Exhaustion of the Second Mortgage Proceeds Account, the Retail
Agent and the Retail Lenders shall, on the date specified in the relevant Advance Request, make
any Advances required of them pursuant to that Advance Request.”; and that prior to any
disbursement, there have been no change in the economics or feasibility of constructing and/or
operating the Project, or in the financing condition, business or property of the Borrowers, any of
which could reasonably be expected to have a Material Adverse Effect. (See id. at 3.3.3, 3.3.2,
3.3.8, 3.3.11, 3.3.23)
86.

Pursuant to the Disbursement Agreement, “if Disbursement Agent is notified that

an Event of Default or a Default has occurred and is continuing, the Disbursement Agent shall
promptly and in any event within five Banking Days provide notice to each of the Funding
Agents of the same and otherwise shall exercise such of the rights and powers vested in it by this
Agreement and the documents constituting or executed in connection with this Agreement, and
use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the reasonable administration of its own affairs.” As noted above,

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among the powers and duties vested in BofA under the Disbursement Agreement upon learning
of a Default or Event of Default was the power and duty to issue a Stop Funding Notice.
Under BofA’s current interpretation of Section 2.1(c)(iii) of the Credit Agreement, all
disbursements by BofA were improper because the Borrowers did not satisfy the In
Balance Test
87.

Among the prerequisites to disbursement was that the Borrowers satisfy the In

Balance Test. This test, which was used to ensure that the project was on track, weighed the
Borrowers’ available financing against expected costs necessary to complete construction.
Among the funding to be considered available was the so-called Revolving Availability—the
amount the Borrowers could request from the Revolving facility on the day determined, minus
$40 million.
88.

Beginning in August 2007, BofA consistently used a Revolving Availability

figure between $682 million and $760 million when calculating the In Balance Test. In other
words, BofA concluded that in excess of $680 million was always available to be drawn from the
Revolving facility on the day of determination. Using this range, BofA concluded that the
Borrowers satisfied the In Balance Test and disbursed funds out of the Bank Proceeds Account.
89.

On March 23, 2009, BofA concluded as a result of the Delay Draw Term Loans

being fully requested and almost all funded that an amount in excess of $150 million of Revolver
Availability could be used to calculate the In Balance Test. BofA acknowledged that under its
March 3 interpretation of the Credit Agreement, the Revolver Availability before March 23,
2009, was $150 million and was not between $682 million and $760 million. According to
BofA’s March 3 interpretation—which is also the interpretation BofA has advanced in the
related Fontainebleau litigation (currently pending before the Southern District of Florida and
captioned as Fontainebleau Las Vegas LLC v. Bank of America, N.A., et al, No. 09-cv-21879ASG),—the In Balance Test was not satisfied for any monthly Advance Request. BofA knew

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the In Balance Test was not satisfied under its current interpretation of the Credit Agreement, yet
it did not issue a Stop Funding Notice or prevent the disbursement of funds.
90.

On March 23, 2009, the Borrowers advised BofA that they would be submitting a

calculation of the In Balance Test reflecting a cushion of $13.8 million. That cushion included
Available Funds with two components that are, as explained below, incompatible: (a) $750
million in “Bank Revolving Availability”; and (b) $21,666,666 under “Delay Draw Term Loan
Availability,” which represented the unfunded portion of the Delay Draw Loans (excluding First
National Bank of Nevada’s portion).
91.

The In Balance Test submitted with the March 25, 2009 Advance Request could

include either $750 million in “Bank Revolving Availability” or $21,666,666 under “Delay Draw
Term Loan Availability,” but not both.
92.

If “fully drawn” meant “fully funded,” the interpretation advanced by BofA when

rejecting the March 2 and March 3 Notices of Borrowing, then Bank Revolving Availability
could not include $750 million. Under BofA’s interpretation the “Bank Revolving Availability”
could not exceed $150 million unless and until the Delay Draw facility was in fact fully funded.
The Delay Draw facility was not fully funded. As such, the Borrower did not meet the In
Balance Test for the March 25, 2009 Advance Request.
93.

If “fully drawn” meant “fully requested,” then the $21,666,666 in Delay Draw

Term Loan that was requested but not funded would be excluded from the In Balance Test
because those funds were fully requested on March 3, 2009 and March 9, 2009. This is because
“Delay Draw Term Loan Availability” is defined to mean, “as of each date of determination, the
then undrawn portion of the Delay Draw Term Loans” (emphasis added). (Disbursement
Agreement, Ex. A). On March 25, 2009, there was no “undrawn portion of the Delay Draw
Term Loans.”

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94.

Under either interpretation of “fully drawn,” the Borrower could not satisfy the In

Balance Test submitted with the March 25, 2009 Advance Request, a condition to disbursement
under Section 3.3.8 of the Disbursement Agreement.
95.

BofA disbursement of funds out of the Bank Proceeds Account was willful

misconduct, grossly negligent, and in bad faith because the Borrowers did not meet the In
Balance Test according to BofA’s own interpretation and understanding of the Credit and
Disbursement Agreements.
Disbursements after September 15, 2008 by BofA were improper because there was a
Default and/or Event of Default related to the bankruptcy of Lehman Brothers and
Lehman Brothers breach of the Retail Facility Agreement
96.

Lehman Brothers Holdings Inc. (“Lehman Brothers”) served as the Retail Agent,

arranger and largest lender under the Retail Facility Agreement dated June 6, 2007. Lehman
Brothers was responsible for $215 million of the Retail Facility. These funds were to be used to
complete the Shared Costs of the Project including the Podium and Retail Component. To
successfully complete the Project, the parties relied heavily on Lehman Brothers funding its
commitment under the Retail Facility Agreement.
97.

On September 15, 2008, Lehman Brothers filed for bankruptcy.

98.

Upon information and belief, BofA was aware that Lehman Brothers, the arranger

and a lender under the Fontainebleau retail loan facility, declared bankruptcy on September 15,
2008. On October 7, 2008, and October 22, 2008, BofA was made aware that Lehman Brothers
was in bankruptcy proceedings. BofA also knew that Lehman Brothers failed to fund its
required portion of the retail loan facility as required under Retail Facility Agreement dated June
6, 2007.
99.

Since September 2008, Lehman Brothers has failed and refused to make any

required advances under the Retail Facility Agreement for which it agreed to lend $215 million.

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Lehman Brothers breached the Retail Facility Agreement by declaring bankruptcy and failing to
honor advance requests made by the Borrower in September 2008, December 2008, January
2009, February 2009 and March 2009. In total, Lehman Brothers failed to honor its obligations
under the Retail Facility Agreement in the amount of $14,259,409.47.
100.

The Retail Facility Agreement is a Financing Agreement listed in Schedule 4.24

of the Credit Agreement and is, therefore, a Material Agreement for purposes of Section 8(j) of
the Credit Agreement. The Retail Facility Agreement is also defined as a Facility Agreement
under the Disbursement Agreement.
101.

Under Section 8(j) of the Credit Agreement, a Default and/or Event of Default

occurs when “any other Person shall breach or default under any term, condition, provision,
covenant, representation or warranty contained in any Material Agreement….”
102.

Under the Credit Agreement, a Default occurs when “any of the events specified

in Section 8 [of the Credit Agreement], whether or not any requirements for the giving of notice,
lapse of time, or both, has been satisfied.” A Default under the Credit Agreement is also a
Default under Section 7.1 of the Disbursement Agreement.
103.

Under the Disbursement Agreement, one representation and warranty made by the

Project Entities is that “[t]here is no default or event of default under any of the Financing
Agreement.” (See id. at 4.9) The Retail Facility Agreement is a Financing Agreement.
104.

The bankruptcy and failure to fund by Lehman Brothers is one of the events

leading up to Fontainebleau filing bankruptcy.
105.

The failure of Lehman Brothers to fund pursuant to the Retail Facility Agreement

was a breach of a Material Agreement, Financing Agreement and Facility Agreement, and
therefore a Default and/or Event of Default under the Disbursement Agreement.

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106.

This Default and Event of Default is also a violation of the representation and

warranty in Section 4.9 that there is no default or event of default, and therefore a Default or
Event of Default pursuant to section 3.3.2 of the Disbursement Agreement.
107.

Lehman’s breach of the Retail Facility Agreement and failure to fund is the

failure of a condition precedent pursuant to Section 3.3.23 under the Disbursement Agreement
for at lease the five Advance Requests prior to March 2009.
108.

Lehman’s breach of the Retail Facility Agreement and failure to fund is the

failure of a condition precedent under Section 3.3.11 because Lehman’s bankruptcy filing, and
the uncertainty that any other lender would assume Lehman’s commitment under the Retail
Facility, posed a grave threat to the successful completion of the Project and thus could
reasonably be expected to have a Material Adverse Effect.
109.

Upon information and belief, BofA received notice of the Lehman’s breach of the

Retail Facility Agreement and Defaults from one or more of the Term Lenders. In September
and October 2008, at least one of the Term Lenders wrote to BofA and expressed the position
that Lehman’s failure to comply with its funding obligations under the Retail Facility meant that
certain of the conditions precedent to disbursement of funds under Section 3.3.3 of the
Disbursement Agreement were not satisfied. BofA willfully took no action in response to that
notice, instead asserting that its function as Disbursement Agreement was purely administrative
in nature.
110.

In February 20, 2009, BofA wrote a detailed letter to the Borrower. In this letter

BofA requested that the Borrower “comment on the status of the Retail Facility, and the
commitments of the Retail Lenders to fund under the Retail Facility, in particular, whether you
anticipate that Lehman Brothers Holdings, Inc. will fund its share of requested loans, and
whether the other Lenders under the Retail Facility intend to cover any shortfalls.”

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111.

BofA knew of Lehman Brother’s breach of the agreement and its failure to fund.

BofA knew that Lehman’s breach and failure were Defaults and Event of Defaults. BofA’s
disbursement of funds from the Bank Proceeds Account was willful misconduct, grossly
negligent, and in bad faith.
Disbursements by BofA were improper because BofA knew of other Defaults and failures
of condition precedent to the disbursement of funds.
112.

On March 10, 2009, BofA via Mr. Henry Yu wrote to the Borrowers and

requested a meeting “in our capacities as both Administrative Agent and Distribution Agent.”
Mr. Yu further noted that Borrowers had not returned BofA’s telephone calls and had refused to
schedule a meeting with BofA.
113.

On March 11, 2009, Borrowers sent Mr. Yu a “prenegotiations agreement” that

included a standstill period during which BofA would temporarily forbear exercising its default
rights and remedies.
114.

On March 16, 2009, Borrowers sent Mr. Yu a letter stating that the “Company

continues to believe strongly that the Lenders are currently in default of their funding
obligations.”
115.

Also on March 16, 2009, Mr. Yu sent a letter to the Borrowers acknowledging

that a meeting with the Borrowers was scheduled for March 20, 2009, and confirming receipt of
an Advance Request. Mr. Yu noted that the requested Advance Date was March 25, 2009, and
stated that the lenders had raised legitimate questions concerning the Project. Mr. Yu signed the
letter on behalf of “Bank of America, N.A., as Administrative Agent and Disbursement Agent.”
116.

On March 20, 2009, BofA met with the Borrowers to discuss the Project’s status.

During the meeting Fontainebleau refused to answer questions about the future operating
prospects of the Project. The information exchanged and discussions which occurred during this
meeting preceded the drafting by the Borrowers of an Interim Agreement dated April 1, 2009,

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which provided in part that the lenders signing the agreement would not terminate the Revolving
Commitments or declare a Default or an Event of Default.
117.

On March 23, 2009, Mr Yu sent a letter to Fontainebleau’s lenders stating that

BofA knew that several Delay Draw Term Loan lenders, including First National Bank of
Nevada, had not funded their Delay Draw Term Loan. Mr. Yu wrote that over $20 million of
Delay Draw Term Loan had not funded by March 23, 2009.
118.

One of those lenders was First National Bank of Nevada, which had made a

commitment of $1,666,666 under the Term Loan Facility and a commitment of $10,000,000
under the Revolving Facility. On July 25, 2008, First National Bank of Nevada, which had made
a commitment of $1,666,666 under the Term Loan Facility and a commitment of $10,000,000
under the Revolving Facility, was closed by the Office of the Controller of the Currency, and the
Federal Deposit Insurance Company (“FDIC”) was subsequently appointed as receiver.
According to the Borrower, FDIC subsequently repudiated its commitments under the Credit
Agreement. Beginning in January 2009, the calculation of Available Funds under the In Balance
Test was reduced by the amount of the total commitment by First National Bank of Nevada
($11,666,666). Upon information and belief, BofA knew about this receivership and repudiation
of commitment.
119.

The Credit Agreement is a Financing Agreement listed in Schedule 4.24 and is,

therefore, a Material Agreement for purposes of Section 8(j).
120.

The failure of several lenders, including First National Bank, to fund their Delay

Draw Term Loan was a breach of a Material Agreement and therefore a Default under the
Disbursement Agreement.
121.

This Default is also a violation of the representation and warranty in Section 4.9

that there is no default or event of default, and therefore a Default pursuant to section 3.3.2 of the
Disbursement Agreement.

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122.

On March 23, 2009, BofA stated it knew of these Default by these lenders and

therefore the breach of the representation and warranty in Sections 4.9 and 3.3.2 .
123.

Despite BofA’s knowledge of the Default by First National Bank, BofA willfully

and in a grossly negligent manner disbursed funds from Bank Proceeds Account pursuant to
Advance Requests made in January and February 2009.
124.

Despite BofA’s knowledge of these Defaults and the other information in BofA’s

possession, as both Administrative and Disbursement Agent, on March 25 BofA willfully and in
a grossly negligent manner disbursed $133 million from the Bank Proceeds Account.
125.

From at least March 2, 2009, through March 25, 2009, Mr. Yu represented BofA

in its various capacities as the Administrative Agent, the Bank Agent and the Disbursement
Agent. As such, Mr. Yu’s knowledge and actions are imputed to BofA in all of these capacities
and BofA had identical knowledge in all its capacities.
126.

BofA was aware the Borrowers were alleging that the Revolving Loan lenders

were in default of their obligations under the Credit Agreement and had reserved all of their
rights in connection with that default. BofA was also aware that the Borrowers had requested a
pre-negotiated standstill to the lenders’ rights due to problems with project. This information was
materially adverse and impacted the economics and feasibility of constructing the Project. As
such, on or before March 25, 2009, BofA was aware that the Advance Request should be denied
because of existing Defaults, misrepresentations regarding the status of Defaults, and that these
events could reasonably be expected have a Material Adverse Effect. As such, BofA was aware
numerous conditions precedents to disbursement were not satisfied.
127.

Instead of fulfilling its duties to act in good faith and to deny an Advance Request

and issue a Stop Funding Notice if the conditions precedent to an Advance were satisfied, BofA
favored its own interests over those of the Initial Term and Delay Draw lenders and disregarded

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evidence in its possession that the March Advance Request should be denied because the
conditions precedent in Article 3.3 of the Disbursement Agreement were not satisfied.
128.

For each monthly Advance Request, including the request on March 25, 2009,

BofA authorized the release funds from the Bank Proceeds Account, notwithstanding the
information that it had in its possession regarding Defaults or Events of Default,
misrepresentations and adverse information. BofA’s release of the funds notwithstanding the
information it had in its possession regarding Defaults or Events of Default, misrepresentations
and adverse information was willful misconduct, grossly negligent, in bad faith and in reckless
disregard for the Plaintiffs’ predecessors-in-interests’ rights.
129.

BofA has conceded its wrongdoing in this respect. BofA has taken the position in

related litigation that “long before [Fontainebleau] issued the March [2] Notice of Borrowing …
[the Borrowers] had materially and repeatedly breached the Credit Agreement.…” (Defendants’
Opposition to Fontainebleau’s Motion for Partial Summary Judgment and an Order Pursuant to
11 U.S.C. § 542 Directing the Turnover of Funds; and Defendants’ Cross Motions (A) to
Dismiss Fontainebleau’s Seventh Claim for Relief and (B) to Deny or Continue Fontainebleau’s
Motion so that Discovery May Be Had, Fontainebleau Las Vegas LLC v. Bank of America, N.A.,
et al., Adv. Pro. No. 09-01621-ap-AJC (Bankr. S.D. Fla.), at 2.). BofA has asserted that
Fontainebleau “…had been in default of the Credit Agreement and the Disbursement Agreement
prior to the March Notice of Borrowing.” (Id. at 50). Moreover, BofA has contended,
“Fontainebleau failed to report promptly these and other Events of Default under the Credit
Agreement. Thus, while Lenders denied the March Borrowing Notice based on its failure to
comply with the requirements of Section 2.1(c), there is mounting evidence that Fontainebleau
had no right even to make the request for the additional reason that it was not in compliance with
the Credit Agreement and the closely related Disbursement Agreement.” Id. at 50–51.

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130.

Because BofA, as Disbursement Agent, knew that the Borrowers were in default

on March 25, 2009, BofA is liable for wrongfully disbursing funds from the Bank Proceeds
Account.
131.

Plaintiffs’ and plaintiffs’ predecessors-in-interests’ collateral has been and

continues to be diminished as a result of BofA’s actions.
FIRST CLAIM FOR RELIEF
Breach of the Credit Agreement Against All Defendants
For Failure to Fund the March 2 Notice/March 3 Notice
132.

Plaintiffs reallege and incorporate each and every allegation contained in

paragraphs 1 through 131 hereof.
133.

The Credit Agreement is a valid and binding contract, pursuant to which the

Defendants agreed to fund $790 million under the Revolving Loan.
134.

The March 2 Notice and the March 3 Notice complied with all applicable

conditions under the Credit Agreement. Plaintiffs and their predecessors-in-interest have
performed all obligations required of them under the Credit Agreement.
135.

Defendants did not elect to cancel their obligations under the Credit Agreement in

response to Plaintiffs’ predecessors-in-interests’ breach of the Credit Agreement but instead
permitted the Credit Agreement to continue and took benefits from the cure of breach by
Plaintiffs’ predecessors-in-interest.
136.

Pursuant to the terms of the Credit Agreement, the Defendants were, and continue

to be, obligated to honor the March 2 Notice and the March 3 Notice.
137.

The Defendants’ failure to honor the March 2 Notice and March 3 Notice

constitutes a material breach of their obligations under the Credit Agreement.
138.

Plaintiffs and/or their predecessors-in-interest have suffered injury as a result of

the breach because, as a result of the Defendants’ refusal to honor their obligation to fund the

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Revolving Loan, the amount and value of Plaintiffs’ collateral has been and continues to be
diminished.
SECOND CLAIM FOR RELIEF
Breach of the Credit Agreement Against All Defendants
For Failure to Fund the April 21 Notice
139.

Plaintiffs reallege and incorporate each and every allegation contained in

paragraphs 1 through 138 hereof.
140.

The Credit Agreement is a valid and binding contract, pursuant to which the

Defendants agreed to fund $790 million under the Revolving Loan.
141.

The April 21 Notice complied with all applicable conditions under the Credit

Agreement. Plaintiffs and their predecessors-in-interest have performed all obligations required
of them under the Credit Agreement.
142.

Defendants did not elect to cancel their obligations under the Credit Agreement in

response to Plaintiffs’ predecessors-in-interests’ breach of the Credit Agreement but instead
permitted the Credit Agreement to continue and took benefits from the cure of breach by
Plaintiffs’ predecessors-in-interest.
143.

Pursuant to the terms of the Credit Agreement, the Defendants were, and continue

to be, obligated to honor the April 21 Notice.
144.

The Defendants’ failure to honor the April 21 Notice constitutes a material breach

of their obligations under the Credit Agreement.
145.

Plaintiffs and/or their predecessors-in-interest have suffered injury as a result of

the breach because, as a result of the Defendants’ refusal to honor their obligation to fund the
Revolving Loan, the amount and value of Plaintiffs’ collateral have been and continue to be
diminished.

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THIRD CLAIM FOR RELIEF
Breach of the Disbursement Agreement Against BofA
146.

Plaintiffs reallege and incorporate each and every allegation contained in

paragraphs 1 through 145 hereof.
147.

The Disbursement Agreement is a valid and binding contract, pursuant to which

BofA agreed to act as Bank Agent (which is defined in the Disbursement Agreement as the
Administrative Agent under the Credit Agreement), and/or Disbursement Agent.
148.

The Disbursement Agreement was intended to directly benefit Plaintiffs.

Pursuant to the Disbursement Agreement, BofA held the security interests for the benefit of
Plaintiffs. The conditions and restrictions of disbursement set forth in the Disbursement
Agreement were also for the benefit of Plaintiffs. The Disbursement Agreement also sets forth
the duties of BofA and states those duties are for the benefit of Plaintiffs
149.

BofA had a duty to the lenders, including Plaintiffs’ predecessors-in-interest, to

carry out its capacities as the Bank Agent (Administrative Agent) and the Disbursement Agent in
good faith and to follow the provisions of the Disbursement Agreement.
150.

Pursuant to the Disbursement Agreement, BofA was obligated to deny, issue a

stop-funding notice, or not fund the Advance Requests due to BofA’s knowledge that one or
more conditions precedent had not been met.
151.

As opposed to fulfilling its duties, BofA acted in bad faith and with gross

negligence and reckless disregard or willfulness in favoring its own interests over those of the
Delay Draw lenders when BofA authorized the release of funds from the Bank Proceeds Account
despite knowing numerous conditions precedent were not satisfied including that under its own
interpretation of the Credit Agreement the In Balance Test was not satisfied, that Defaults and/or
Events of Default had occurred and were continuing and that the Borrowers were claiming that
BofA and other Revolving Loan Lenders defaulted under the Credit Agreement. Moreover,
BofA was in possession of information showing other misrepresentations and adverse

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information. Despite this knowledge, BofA acted with bad faith, gross negligence and reckless
disregard or willfulness in approving Advance Requests.
152.

BofA’s failure to fulfill its obligations as Bank Agent (Administrative Agent)

and/or Disbursement Agent by approving Advance Requests constitutes a material breach of its
obligations under the Disbursement Agreement.
153.

Plaintiffs have suffered injury as a result of the breach because, as a result of

BofA’s approval of the Advance Requests, the amount and value of Plaintiffs’ and/or their
predecessors-in-interests’ collateral have been and continue to be diminished.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment and relief as follows:
A.

for judgment in Plaintiffs’ favor on the counts recited above;

B.

for compensatory damages in an amount to be proved at trial;

C.

for an award of costs including attorneys’ fees and the costs and disbursements of
this action;

D.

for pre-judgment and post-judgment interest and court costs; and

E.

for such other relief as the Court may deem proper and just.

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DATED: September 13, 2010

Respectfully submitted,

By: /s/ Steven_J. Nachtwey

Brett Amron
BAST AMRON
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
and
James B. Heaton, III
Steven J. Nachtwey
John D. Byars
Vincent S. J. Buccola
BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

41
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Exhibit B

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

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

/

NOTICE OF POSITIONS REGARDING PROPOSED ADJUSTMENT TO CERTAIN
PRE-TRIAL DATES IN LIGHT OF TRUSTEE’S NOTICE OF INTENTION
In response to the Court’s directive during the August 31, 2010 Status Conference,
Plaintiffs in Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., No. 09-cv-23835ASG and ACP Master, LTD., et al. v. Bank of America, N.A., et al., No. 10-cv-20236-ASG
(collectively, the “Term Lender Plaintiffs”) and Defendant Bank of America, N.A. (“BANA”)
submit this notice of their respective positions regarding proposed adjustments to certain pre-trial
dates in these two matters as a result of the Chapter 7 Trustee’s August 20, 2010 Notice of
Intention With Regard to Case No. 1:09-cv-21879-ASG.
I.

PROPOSED TIMETABLE MODIFICATIONS
In light of the Trustee’s Notice, and subject to the dispute referenced in Point II below,

the parties jointly request that the following dates be extended to give them sufficient time to
review documents that have yet to be produced by certain Fontainebleau-related entities,
including the Trustee on behalf of Fontainebleau Las Vegas Holdings, LLC (“FBLV”): 1

1

The Trustee has stated that he will produce all FBLV documents in his possession, custody and
control, without regard to privilege. The Trustee’s counsel further has stated that such
documents reside primarily on three servers that may also contain documents of other

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 2 of 16

CURRENT DATE
9-15-2010

PROPOSED DATE
10-15-2010

EVENT
All non-dispositive, non-discovery related pretrial
motions (including motions pursuant to Fed. R.
Civ. P. 14, 15, 18 through 22 and 42 motions)
shall be filed.

11-29-2010

1-15-2010

Plaintiff shall furnish opposing counsel with a
written list containing the names and addresses of
all expert witnesses intended to be called at trial
and only those expert witnesses so listed shall be
permitted to testify.

12-31-2010

2-15-2010

Defendant shall furnish opposing counsel with a
written list containing the names and addresses of
all expert witnesses intended to be called at trial
and only those expert witnesses so listed shall be
permitted to testify.

Fontainebleau-related entities, including Fontainebleau Resorts, LLC (“FBR”) and Turnberry
West Construction and Turnberry Residential Limited Partner, LP (collectively “TWC”). In
order to avoid the inadvertent production of privileged documents of these other Fontainebleaurelated entities, the Trustee has declined to produce the servers without permission from these
other entities, which was not immediately forthcoming. That procedural logjam, however, was
broken by two recent orders. On August 30, 2010, Magistrate Goodman granted the Term
Lenders’ motion to compel FBR to produce documents in response to a comprehensive subpoena
issued on April 22, 2010 (including those on the three servers) by September 13, 2010. [DE#
129.] And on September 1, 2010, Judge King of the United States Bankruptcy Court for the
District of Hawaii, sitting by designation in a special proceeding brought by the Nevada Term
Lenders in the United District Court for the District of Nevada to enforce a March 3, 2010
subpoena against TWC issued in the FBLV Chapter 7 proceeding, granted the Nevada Term
Lenders’ motion to compel and ordered TWC to produce all of its responsive documents
(including those on the three servers) by September 24, 2010. Accordingly, all impediments to
the review and production of the documents on these servers appear to have been removed, and
the Trustee thus should be in a position to produce FBLV’s documents by no later than the end
of this month.
-2-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 3 of 16

II.

THE PARTIES DISAGREE ON THE PROPRIETY OF A STAY PENDING THE
TRUSTEE’S APPEAL
A.

BANA’s Position

The Trustee and the Term Lenders have both indicated that they will seek the entry of
final judgment under Fed. R. Civ. P. 54(b) on their respective claims that BANA and the other
Revolver Banks breached the Credit Agreement by failing to honor FBLV’s March 2009 Notice
of Borrowing (the “Credit Agreement Claims”). BANA respectfully submits that if either
Rule 54(b) motion is granted (and particularly if the Term Lenders’ motion is granted),
deposition discovery should be stayed until the appeals are resolved because (i) the appeals’
outcome will have a direct impact on the Term Lenders’ remaining claim that BANA breached
its duties as Disbursement Agent (the “Disbursement Agreement Claim”), and (ii) because
numerous party and non-party witnesses will need to be deposed a second time if the appeals are
successful. If the Term Lenders believe their appeal will succeed—recognizing that they must
also overcome the Court’s standing ruling to benefit from a successful appeal on the Credit
Agreement Claims—they should agree to hold off on deposition discovery for now so as to avoid
unnecessarily complicating the case or burdening party and non-party witnesses. Allowing the
Term Lenders to proceed with their appeal and deposition discovery while the Disbursement
Agreement Claim’s scope is undefined is fundamentally unfair to BANA.
1.

BANA disagrees with the Term Lenders’ assertion that the Disbursement

Agreement Claim is unrelated the Credit Agreement Claims that would be addressed on appeal.
The Credit Agreement Claims are inextricably connected to the Term Lenders’ Disbursement
Agreement Claim. The Term Lenders allege that BANA breached the Disbursement Agreement
by, among other things, permitting FBLV’s Advance Requests and Notices of Borrowing to be
funded after the Revolver Banks “wrongfully” refused to honor FBLV’s March 2009 Notice of
Borrowing. Their complaints allege that:
-3-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 4 of 16



BANA should have rejected all FBLV Advance Requests because, under
BANA’s interpretation of the Credit Agreement’s “fully drawn” provision, “the In
Balance Test was not satisfied for any monthly Advance Request”. (See Aurelius
Compl. ¶¶ 89, 92; see also Avenue Compl. ¶ 150 (“Under BofA’s new, after-thefact position that ‘drawn’ means ‘funded,’ however, the Borrower had never
satisfied the In Balance Test and all prior disbursements were improper.”), ¶ 161.)



The Revolver Banks’ refusal to honor the Notice of Borrowing constituted a
default under the Credit Agreement, “mean[ing] at least one of the conditions
precedent for disbursement of funds, Section 3.3.3 of the Disbursement
Agreement, clearly had not been satisfied.” (Avenue Compl. ¶ 158.)



BANA should have rejected FBLV’s March 2009 Advance Request because the
Revolving Banks’ failure to honor FBLV’s Notice of Borrowing “was materially
adverse and impacted the economics and feasibility of constructing the Project.”
(See Aurelius Compl. ¶ 126; see also Avenue Compl. ¶ 160.)

But BANA will not need to address these allegations in defending the Disbursement
Agreement Claim unless the Term Lenders prevail on appeal because they are predicated on the
Credit Agreement breach claims that this Court has twice rejected. If the Revolver Banks’ “fully
drawn” interpretation was correct, the Term Lenders’ argument that FBLV “never” satisfied the
In Balance Test must be rejected—it is patently unreasonable to read the Credit Agreement in a
way that the In Balance Test would always fail. Likewise, if the Revolver Banks permissibly
refused to honor the March 2009 Notice of Borrowing, the Term Lenders’ claim that
Section 3.3.3 was not satisfied fails. And the Revolver Banks’ proper interpretation of the Credit
Agreement could not adversely affect “the economics and feasibility of constructing the Project”
since it is the outcome that was always contemplated by the loan document parties.

-4-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 5 of 16

The Term Lenders assert “that coordinated appeals of all issues related to the Credit
Agreement Claims make sense and thus intend to seek certification under Rule 54(b),” but they
recognize the complications that arise if the appeals succeed. While stating that they will not
press the March 2009 allegations at this time, they acknowledge that “[i]f the Eleventh Circuit
causes that to change in the future, the parties and the Court can determine at that time what
impact, if any, such a change has on the cases as they are then positioned.” This is precisely the
inefficiency, waste of judicial resources and injustice to BANA that could be avoided by
BANA’s proposed deposition stay. If the Trustee or the Term Lenders are permitted to appeal
the Credit Agreement Claims, deposition discovery should be stayed until the appeal is resolved
so that BANA knows what allegations it needs to defend against.
2.

The Term Lenders offer no reason why the deposition stay should not be granted.

They will suffer no prejudice if depositions take place after the Eleventh Circuit’s ruling. By
contrast, if the Credit Agreement Claims are revived on appeal, the scope of discovery in this
MDL action will be significantly broadened. Discovery will be needed regarding the Credit
Agreement’s negotiation to determine what the parties’ intended Credit Agreement
Section 2.1(c)(iii) to mean. In addition, discovery will be needed to determine whether FBLV
was in default under the Credit Agreement at the time it submitted the March 2009 Notice of
Borrowing. As a defense to the Credit Agreement Claims, the Revolver Banks have asserted that
FBLV’s then-existing defaults relieved them of any obligation to accept the March 2009 Notice
of Borrowing, even if they were not aware of the defaults at the time. See Fontainebleau Las
Vegas, LLC v. Bank of Am., N.A., 417 B.R. 651, 665-66 (S.D. Fla. 2009). There are numerous
party and non-party witnesses who would have knowledge relevant to these issues as well as
Disbursement Agreement Claim issues. For example, FBLV’s former CFO James Freeman has
knowledge regarding both FBLV’s financial condition in March 2009 and the Lehman

-5-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 6 of 16

bankruptcy implications for the Project’s financing (a key issue for the Disbursement Agreement
Claim). Other non-party witnesses who are likely to possess relevant information regarding both
the Credit Agreement Claims and the Disbursement Agreement Claim include:


Former FBLV officers and employees;



Former FBLV advisors such as its accountants;



Former officers and employees of the general contractor on the Project; and



Attorneys involved in negotiating the Credit Agreement and other loan
documents.

Depositions should be stayed pending the appeals’ resolution to avoid deposing party and
non-party witnesses more than once or, alternatively, burdening them with potentially
unnecessary questions concerning the Credit Agreement Claims that the Court has (correctly)
dismissed. Moreover, if discovery is not stayed pending appeal, there is a risk that non-party
witnesses (especially those residing outside this district) will move to quash subpoenas seeking a
second deposition. This will both increase the cost of this litigation (for the parties and the
witnesses) and could result in key witnesses being unavailable to testify on Credit Agreement
Claims issues. That is not in any party’s interest.
3.

BANA is not suggesting that all discovery be stayed pending appeal. The parties

(including the Trustee) would still be required to complete their document productions. And
third-party document production could also proceed. But depositions should be stayed until the
Eleventh Circuit rules on the Credit Agreement Claims so that the parties have clarity regarding
the appropriate scope of discovery.
B.

The Term Lenders’ Position

The Trustee’s appeal of the Credit Agreement Claims in the FBLV action does not
support the imposition of a stay of the Term Lenders’ Disbursement Agreement Claims in their

-6-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 7 of 16

separate actions. The two sets of claims seek different relief, in different actions, against
different parties, under different agreements: the Disbursement Agreement Claims seek damages
against BANA in its capacity as agent for its improper disbursal of funds to Fontainebleau on
numerous occasions in breach of the Disbursement Agreement; while the Credit Agreement
Claims seek different damages against the Revolving Lenders (including but not limited to
BANA as revolving lender) for their failure to fund the March and April 2009 Notices of
Borrowing in breach of the Credit Agreement. In sum, the discovery related to the Disbursement
Agreement Claims will deal with BANA’s knowledge and actions as bank and disbursement
agent while the discovery related to the Credit Agreement Claims will deal with BANA’s failure
to fund as a lender.
These claims have been on different tracks ever since the Court dismissed the Credit
Agreement Claims in the Term Lender actions. The dismissal of the Credit Agreement Claims
provided no basis for staying discovery on the Disbursement Agreement Claims then, and the
Trustee’s appeal of Credit Agreement issues in a separate action certainly does not provide a
basis for a stay now. And while the Term Lenders believe that coordinated appeals of all issues
related to the Credit Agreement Claims make sense and thus intend to seek certification under
Rule 54(b) to appeal those issues in parallel with the Trustee, if put to the choice between an
immediate appeal of the Credit Agreement Claims and continued prosecution of their
Disbursement Agreement Claims, the Term Lenders would elect not to seek Rule 54(b) relief at
this time and would opt instead to appeal the Credit Agreement Claims in the normal course,
following a final judgment. One way or the other, to the extent that the Court is inclined even to
consider a stay, any such determination should be made upon regularly noticed motion so that
the issues and legal standards may be fully briefed and argued.

-7-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 8 of 16

1.

BANA asserts that the Credit Agreement Claims are “inextricably connected” to

the Disbursement Agreement Claims because the Term Lenders allege that the failure to fund the
March 2009 Notices of Borrowing was one of the many defaults that prevented BANA from
disbursing funds on March 25, one of the many dates on which the Term Lenders assert that
BANA made improper disbursement. BANA complains that it will not know “what allegations
it needs to defend against” until after the Trustee’s appeal. Of course it will. It needs to defend
against all allegations that have not otherwise been dismissed. As matters stand, claims based
upon the Revolving Lenders’ failure to fund have been dismissed; and the Term Lenders
certainly do not intend to take positions on their remaining claims that are inconsistent with the
Court’s dismissal. If the Eleventh Circuit causes that to change in the future, the parties and the
Court can determine at that time what impact, if any, such a change has on the cases as they are
then positioned. In the meantime, there are numerous conditions precedent to disbursement of
funds by BANA that are wholly unrelated to the refusal of the Revolving Lenders to fund, such
as those related to the failure of Lehman Brothers to providing financing.
2.

BANA argues that a successful appeal of the Credit Agreement Claims (which

assumes that that the 11th Circuit will find that the Court’s ruling was erroneous) may require
some third-party witnesses to be re-deposed. This was always the case once the Court granted
the Revolving Lenders’ motion to dismiss over three months ago. BANA never considered it a
problem until the Trustee indicated it was going to dismiss its Credit Agreement Claims. The
theoretical possibility the some individuals may be deposed a second time on different subject
matter, contingent of course on a successful appeal, cannot wag the tail of the Disbursement
Agreement Claims that have not been dismissed and that remain on track for trial.

-8-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 9 of 16

In any event, the risk of multiple depositions is not particularly great. 2 BANA’s claim
that the resurrection of the Credit Agreement Claims would “significantly broaden discovery”
overstates the matter. The primary issue BANA cites, FBLV’s defaults prior to March 2009, will
be discovered in connection with the Disbursement Agreement Claims, which are premised on
BANA’s disbursement of loan proceeds in the face of these defaults. People with knowledge of
those issues should be deposed once. And while discovery on the negotiations and interpretation
of the Credit Agreement may involve limited overlapping discovery, it certainly is not significant
enough to cause the Disbursement Agreement Claims to come to a grinding halt. The vast
majority of discovery related to those claims will focus on the knowledge and actions of
BANA’s improper disbursement of funds. This discovery will only need to be taken once by the
Term Lenders, and now is the time to proceed with that discovery.
3.

BANA asserts that it is only seeking a stay of deposition discovery, as if that

mattered. Document discovery, for the most part, has or shortly will be completed, so there is
little discovery left other than depositions.
BANA also asserts that the Term Lenders have not proven how they are prejudiced by
staying depositions. BANA is wrong on two points. First, it is BANA’s burden to prove that it
is prejudiced by depositions going forward on the Disbursement Agreement Claims, not the
Term Lenders’ burden to establish a lack of prejudice. BANA has not and cannot make such a
showing. Even if the Term Lenders were required to prove prejudice, they can. A stay of
depositions would stop these actions in their tracks while the appeal is briefed, argued and the
11th Circuit issues a decision, all while the memories of witnesses continue to fade. And during

2

Even more makeweight is BANA’s suggestion that non-party witnesses may move to quash
subpoenas seeking a second deposition. There would be no merit to any such motion if the
issues were new; and if they were not new, there would be no need for the deposition.
-9-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 10 of 16

this indeterminate delay, the Term Lenders will be unable to recover the money that BANA
improperly disbursed to Fontainebleau. The Term Lenders therefore will suffer prejudice—a
diminished ability to prove their case and a delay in recovering damages—regardless of how the
11th Circuit rules.
Rather than impose this certain delay based upon an uncertain outcome (and impact) of
the Trustee’s appeal, the Term Lenders submit that it will be substantially more efficient and
cost-effective to permit both tracks to go forward simultaneously and address any issues that may
arise in the future in light of the actual facts and developments at that time.

Dated: September 14, 2010
Respectfully submitted,
By:

/s/ Lorenz Michel Prüss

David A. Rothstein
Lorenz Michel Prüss
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, Florida 33133
Telephone:
[phone]
Facsimile:
[phone]
-andJ. Michael Hennigan
Kirk D. Dillman
HENNIGAN BENNETT & DORMAN LLP
865 S. Figueroa St., Suite 2900
Los Angeles, California 90017
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiffs Avenue CLO Fund,
Ltd., et al.

By:

/s/ Brett M. Amron

Brett M. Amron
BAST AMRON LLP
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, Florida 33131
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
-andJames B. Heaton, III
Steven J. Nachtwey
John D. Byars
Vincent S. J. Buccola
BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs ACP Master, Ltd. and
Aurelius Capital Master, Ltd.

-10-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 11 of 16

By:

/s/ Craig V. Rasile

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

-11-

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 12 of 16

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

By:

/s/ Lorenz Michel Prüss

Lorenz Michel Prüss
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, Florida 33133
Telephone:
[phone]
Facsimile:
[phone]

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 13 of 16

SERVICE LIST

Daniel L. Cantor
Bradley J. Butwin
Jonathan Rosenberg
William J. Sushon
O’Melveny & Myers LLP
Times Square Tower
7 Times Square
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of America, N.A.;
Merrill Lynch Capital Corporation

Thomas C. Rice
Lisa H. Rubin
David J. Woll
Steven S. Fitzgerald
Simpson Thacher & Bartlett LLP
425 Lexington Ave.
New York, NY 10017-3954
Telephone: [phone]
Facsimile: [phone]
Attorneys for JPMorgan Chase Bank, N.A.;
Barclays Bank PLC; Deutsche Bank Trust
Company Americas; The Royal Bank of
Scotland PLC; Bank of Scotland plc

-13-

Craig V. Rasile
Kevin M. Eckhardt
Hunton & Williams
1111 Brickell Ave., Suite 2500
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of America, N.A.;
Merrill Lynch Capital Corporation;
JPMorgan Chase Bank, N.A.; Barclays
Bank PLC; Deutsche Bank Trust Company
Americas; The Royal Bank of Scotland
PLC; Bank of Scotland plc; HSH Nordbank
AG, New York Branch
Mark D. Bloom
John B. Hutton, III
Greenberg Traurig
1221 Brickell Ave.
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for JPMorgan Chase Bank, N.A.;
Barclays Bank PLC; Deutsche Bank Trust
Company Americas; The Royal Bank of
Scotland PLC; Bank of Scotland plc

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 14 of 16

Sarah E. Harmon
Bailey Kennedy
8984 Spanish Ridge Avenue
Las Vegas, NV 89148-1302
Telephone: [phone]
Facsimile: [phone]
Attorneys for JPMorgan Chase Bank, N.A.;
Barclays Bank PLC; Deutsche Bank Trust
Company Americas; The Royal Bank of
Scotland PLC
Harold D. Moorefield, Jr.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
Museum Tower
150 W. Flagler St., Suite 2200
Miami, FL 33130
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of Scotland plc

Robert G. Fracasso, Jr.
Shutts & Bowen LLP
201 S. Biscayne Blvd.
1500 Miami Center
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Attorneys for Sumitomo Mitsui Banking
Corporation
Arthur H. Rice
Rice Pugatch Robinson & Schiller, P.A.
101 NE 3rd Ave., Suite 1800
Fort Lauderdale, FL 33301
Telephone: [phone]
Facsimile: [phone]
Attorneys for HSH Nordbank AG, New
York Branch

-14-

Arthur S. Linker
Kenneth E. Noble
Anthony L. Paccione
Katten Muchin Rosenman LLP
575 Madison Ave.
New York, NY 10022-2585
Telephone: [phone]
Facsimile: [phone]
Attorneys for Bank of Scotland plc

Jean-Marie L. Atamian
Jason I. Kirschner
Frederick D. Hyman
Mayer Brown LLP
1675 Broadway
New York, NY 10019-5820
Telephone: [phone]
Facsimile: [phone]
Attorneys for Sumitomo Mitsui Banking
Corporation
Aaron Rubinstein
Phillip A. Geraci
W. Stewart Wallace
Steven C. Chin
Kaye Scholer LLP
425 Park Ave.
New York, NY 10022-3598
Telephone: [phone]
Facsimile: [phone]
Attorneys for HSH Nordbank AG, New
York Branch
Peter J. Roberts
Shaw Gussis Fishman Glantz Wolfson &
Towbin LLC
321 N. Clark St., Suite 800
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
Attorneys for MB Financial Bank, N.A.

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 15 of 16

Laury M. Macauley
Lewis and Roca LLP
50 W. Liberty St., Suite 410
Reno, NV 89501
Telephone: [phone]
Facsimile: [phone]

Gregory S. Grossman
Astigarraga Davis Mullins & Grossman
701 Brickell Ave., 16th Floor
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Attorneys for MB Financial Bank, N.A.

Attorneys for MB Financial Bank, N.A.

Andrew B. Kratenstein
Michael R. Huttenlocher
McDermott Will & Emery LLP
340 Madison Ave.
New York, NY 10173-1922
Telephone: [phone]
Facsimile: [phone]

Bruce J. Berman
McDermott Will & Emery LLP
201 S. Biscayne Blvd., Suite 2200
Miami, FL 33131-4336
Telephone: [phone]
Facsimile: [phone]

Attorneys for Camulos Master Fund, L.P.

Attorneys for Camulos Master Fund, L.P.

Jed I. Bergman
David M. Friedman
Seth A. Moskowitz
Kasowitz Benson Torres & Friedman,
LLP
1633 Broadway
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]

Harley E. Riedel
Russell M. Blain
Susan Heath Sharp
Stichter, Riedel, Blain & Prosser, P.A.
110 E. Madison St., Suite 200
Tampa, FL 33602
Telephone: [phone]
Facsimile: [phone]

Attorneys for Soneet R. Kapila (Chapter 7
Trustee for Fontainebleau Las Vegas
Holdings, LLC, et al.)

-15-

Attorneys for Soneet R. Kapila (Chapter 7
Trustee for Fontainebleau Las Vegas
Holdings, LLC, et al.)

Case 1:09-md-02106-ASG Document 134 Entered on FLSD Docket 09/14/2010 Page 16 of 16

Bruce Bennett
Kirk D. Dillman
J. Michael Hennigan
Sidney P. Levinson
Peter J. Most
Lauren A. Smith
Michael C. Schneidereit
Hennigan, Bennett & Dorman LLP
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Avenue CLO Fund, LTD., et
al.

-16-

Lorenz M. Pruss
David A. Rothstein
Dimond Kaplan & Rotherstein PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]
Attorneys for Avenue CLO Fund, LTD., et
al.