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

Filing 79

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

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:09-md-02106-GOLD/GOODMAN
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 02106
This document relates to:
Case No. 1:09-cv-21879-ASG
/

TRUSTEE’S PLAN FOR RETENTION
AND PRESERVATION OF DOCUMENTS
Soneet R. Kapila, as Chapter 7 Trustee (the “Trustee”) for Fontainebleau Las
Vegas Holdings, LLC, et al., 1 in connection with his request that the Court, pursuant to
Fed. R. Civ. P. 41(a)(2), dismiss with prejudice Counts II through VI (collectively, the
“April Claims”) of the amended complaint (the “Amended Complaint”) filed in this
action by Fontainebleau Las Vegas, LLC, individually and as successor by merger to
Fontainebleau Las Vegas II, LLC (“Fontainebleau”), and dismiss with prejudice, but
without prejudice to the right to appeal, Counts I and VII (the “March 2 Claims”) of the
Amended Complaint, provides, in accordance with MDL Order Number 31 [D.E. # 130],

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.

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 2 of 17

this plan for the retention and preservation of documents (the “Preservation Plan”), as
follows:

BACKGROUND
1.

Fontainebleau commenced this action against certain of its lenders (the

“Revolver Banks”) in the United States Bankruptcy Court for the Southern District of
Florida (the “Bankruptcy Court”) by filing an initial complaint on June 9, 2009, and the
Amended Complaint on June 10, 2009.
2.

Fontainebleau’s Amended Complaint asserts seven claims for relief, all of

which arise out of the Revolver Banks’ refusal 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.
3.

On the same day that it filed the Amended Complaint, Fontainebleau

moved for partial summary judgment as to its Count I claim based on the Revolver
Banks’ refusal to fund a March 2 Notice of Borrowing (the “March 2 Notice”) and its
Count VII claim for turnover pursuant to 11 U.S.C. § 542 of the funds that were subject
to the March 2 Notice. 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 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 fully requested those loan proceeds, rather than (as the

2

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 3 of 17

Revolver Banks contend) 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.
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, held additional oral argument on
Fontainebleau’s pending summary judgment motion, and subsequently, on August 26,
2009, 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)
(b)

in the alternative, “[t]he term ‘fully drawn’ can reasonably be
interpreted to mean ‘fully funded,’” thus creating an issue of fact
(id. at 14);

(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 (id. at 18-19); and

(d)
5.

the “unambiguous meaning of the term ‘fully drawn’ is fully
funded” as a matter of law (August 26 Order, Exhibit “A,” at 11);

Fontainebleau as a matter of law could not obtain a turnover of
property that is “in dispute” (id. at 23).

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].

3

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 4 of 17

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 similar to the claims raised by
Fontainebleau and arising from the same alleged 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 Court granted the Revolver Banks’ motion to

dismiss the Term Lenders’ complaints against the Revolver Banks, determining that the
Term Lenders did not have standing to enforce the Revolver Banks’ obligations and in
the alternative that the Revolver Banks had not breached the Credit Agreement by
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.” 2

2

The Court denied Bank of America’s motion to dismiss claims that it had breached its duties as
agent under a separate disbursement agreement.

4

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 5 of 17

8.

On April 12, 2010, the Bankruptcy Court converted the Fontainebleau

cases to Chapter 11, and the United States Trustee appointed the Trustee [Bankr. Ct. Doc.
No. 1973]. The Trustee was substituted as plaintiff by Order entered in this action on
July 15, 2010 [D.E. # 104].
9.

The Trustee has filed his motion seeking to expedite the entry of a final

judgment dismissing the Trustee’s claims with prejudice, in order to facilitate an
immediate appeal from that judgment so as to obtain appellate review of this Court’s
August 26 Order denying the plaintiffs’ motion for partial summary judgment. The
Court’s August 26 Order is claim- and case-dispositive with respect to Fontainebleau’s
March 2 Claims. By finding as a matter of law that the “unambiguous meaning of the
term ‘fully drawn’ is fully funded” (August 26 Order, Exhibit “A,” at 11)—a finding that
this Court reiterated explicitly, as a matter of law, in the May 28 Order—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. Although the Trustee continues to dispute the conclusions reached in the
August 26 Order, he recognizes that the order was dispositive of those claims, and
accordingly has sought the entry of final judgment, based on the August 26 Order, to
expedite an appeal therefrom.3

3

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 at the
plaintiff’s request and enter an appealable final judgment. 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.”).

5

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 6 of 17

10.

The Trustee has submitted that further proceedings in this Court regarding

the March 2 Claims would be futile and that litigating the March 2 Claims to final
judgment would constitute a wasteful and unproductive utilization of the Court’s and the
parties’ time and resources. The Trustee therefore has requested that, pursuant to Fed. R.
Civ. P. 41(a)(2),4 the Court enter an order dismissing the March 2 Claims with prejudice
to the Trustee’s right to renew such claims, but without prejudice to the Trustee’s right to
take an appeal from the final judgment and obtain review of the August 26 Order. To
facilitate the immediate appeal of the August 26 Order, the Trustee has also requested
that the Court dismiss the April Claims—Counts II through VI of the Amended
Complaint.5 Such dismissal is to be with prejudice to both Fontainebleau’s right to renew
such claims and to Fontainebleau’s right to take an appeal from any order of this Court as
to such claims. Thus, following the dismissal of both the March Claims (Claims I and
VII) and the April Claims (Claims II through VI), the entirety of the Amended Complaint
will have been dismissed and the entry of an appealable final judgment will be
appropriate.
11.

During a status conference conducted telephonically on August 31, 2010,

the Court directed the Trustee, pending resolution of the anticipated appeal, to propose a
plan for the preservation of Fontainebleau documents [Paperless MDL Order Number 31]

4

Rule 41(a)(2) permits the Court to dismiss an action “on terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2).
5

Although Counts V and VI were previously withdrawn by stipulation of the parties [D.E
## 65, 70], they were withdrawn without prejudice. To ensure the appealability of the August 26 Order, the
Trustee seeks dismissal of these claims, with prejudice, as well.

6

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 7 of 17

[D.E. # 130]. The Trustee proposes this Preservation Plan in response to the Court’s
directive and order.

PLAN FOR RETENTION AND
PRESERVATION OF DOCUMENTS
12.

As a Chapter 7 trustee, the Trustee has succeeded to the right and interest

of Fontainebleau. Consistent with his duties under 11 U.S.C. § 704, the Trustee has in
his possession or will obtain possession of various documents, data, and tangible things
that are pertinent to the administration of the Chapter 7 cases and that may be subject to
discovery in Case No. 1:09-cv-21879-ASG, if remanded, and in the other cases that are
part of this multidistrict litigation.
13.

For purposes of his Preservation Plan, the Trustee intends that the terms

“documents, data, and tangible things” be given broad interpretation to include writings,
records, files, correspondence, reports, memoranda, minutes, electronic messages,
telephonic messages or logs, computer and network activity logs, hard drives, backup
drives, removable computer storage media (including tapes, disks, and cards), printouts,
document image files, Web pages, databases, spreadsheets, software, books, ledgers,
journals, orders, invoices, bills, vouchers, checks, statements, worksheets, summaries,
compilations, computations, charts, diagrams, graphic presentations, drawings, films,
charts, digital or chemical process photographs, recordings (video, phonographic, tape, or
digital) or transcripts of such recordings, drafts, jottings, and notes and shall also include
information that serves to identify, locate, or link such material, such as file inventories,
file folders, indices, and metadata.

7

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 8 of 17

14.

The Trustee intends that “preservation” also be interpreted broadly to

accomplish the goal of maintaining the integrity of all documents, data, and tangible
things reasonably anticipated to be subject to discovery under Fed. R. Civ. P. 26, 45, and
56(e). In that regard, the Trustee intends that preservation include taking reasonable
steps to prevent the partial or full destruction, alteration, testing, deletion, shredding,
incineration, wiping, relocation, migration, theft, or mutation of such material, as well as
negligent or intentional handling that would make material incomplete or inaccessible.
15.

The Trustee has made demand upon the officers and employees of

Fontainebleau, as the custodians of Fontainebleau’s property and business records, for
turnover of documents, data, and tangible things. The Trustee has received and is
safeguarding substantial amounts of material turned over to him.
16.

The Trustee has also made demand upon the related Fontainebleau

entities, including Fontainebleau Resorts, LLC, Fontainebleau Resort Holdings, LLC, and
Fontainebleau Resort Properties I, LLC, for turnover of documents, data, and tangible
things relating to the Fontainebleau Las Vegas. The Trustee asserts a continuing demand
upon those entities for turnover.
17.

The Trustee and his employees, independent contractors, attorneys, and

other professionals will preserve all Fontainebleau documents, data, and tangible things
currently in their possession or that subsequently come into their possession, so as to
enable the preservation of evidence that may be subject to discovery in these actions.
18.

The Trustee will treat Fontainebleau documents, data, and tangible things

with the same high degree of care that is required of him as a fiduciary and that is

8

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 9 of 17

consistent with the manner of treatment accorded items that come into his possession in
other cases in which the Trustee serves as a trustee or examiner. The Trustee will
maintain physical documents and tangible things in a secure, safe, protected storage
facility and will maintain electronic documents and data in a secure, safe, protected
environment, in each instance to assure the preservation of evidence that may be the
subject of discovery.
19.

Prior to filing this Preservation Plan, the Trustee has circulated it to

counsel for the Revolver Banks and counsel for the Term Lenders. In response, the
Trustee has received requests for additional specific information regarding the demands
made and the documents received, as referenced in the preceding paragraphs 15, 16, and
18. The Trustee will amend this Preservation Plan to provide, using his best efforts, the
requested additional information.
20.

In addition, the Trustee will honor and respect the reasonable request of

any party to these cases with respect to measures necessary to preserve and protect
documents, data, and tangible things, and, if a dispute arises, will seek a determination
from the Court as to his responsibilities with respect to any category or item of document,
data, or tangible thing.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

9

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 10 of 17

DATED: September

14

, 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—
/s/ Jed I. Bergman
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.

10

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 11 of 17

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this

14th

day of September, 2010, the

foregoing Trustee’s Plan for Retention and Preservation of Documents was electronically
filed with the Clerk of the Court using the Court’s CM/ECF system, and true and correct
copies of that motion 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)

11

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 12 of 17

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:

Parties 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

12

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 13 of 17

Counsel:

Parties 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.
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

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

13

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 14 of 17

Counsel:

Parties 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

14

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 15 of 17

Counsel:

Parties 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

15

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Counsel:

Parties 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

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

Fontainebleau Las Vegas LLC, et al.

16

Case 1:09-md-02106-ASG Document 136 Entered on FLSD Docket 09/14/2010 Page 17 of 17

Counsel:

Parties 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

17

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 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 09-23835-CIVGOLD/GOODMAN.

/

JOINT MOTION TO ADD PLAINTIFFS TO THE ACTION
Plaintiffs and Defendant submit this Joint Motion to add as plaintiffs to this action
Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin Worldwide
Fund Ltd, and in support thereof, state as follows.
WHEREAS, Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and
Scoggin Worldwide Fund Ltd wish to join in the claims asserted by the Plaintiffs in the Second
Amended Complaint [D.E. 15] filed on January 15, 2010; and
WHEREAS, Defendant, while not conceding or admitting in any way that the claims of
Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin Worldwide
Fund Ltd or any of the other Plaintiffs are meritorious, nonetheless agrees to the addition of
Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin Worldwide
Fund Ltd as plaintiffs to this action pursuant to the following terms.
NOW, THEREFORE, the parties hereby respectfully request that this Court approve the
following terms agreed to by the parties in this action:

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 Page 2 of 8

1.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and

Scoggin Worldwide Fund Ltd will be added to this action without the need of filing a separate
complaint.
2.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and

Scoggin Worldwide Fund Ltd shall be bound by all existing case deadlines.
3.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and

Scoggin Worldwide Fund Ltd shall be bound by Amended MDL Order Number Eighteen
Granting in Part and Denying in Part Motions to Dismiss [D.E. 108].
4.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and

Scoggin Worldwide Fund Ltd shall file Corporate Disclosure Statements pursuant to Rule 7.1 of
the Federal Rules of Civil Procedure, Initial Disclosures pursuant to Rule 26(a)(1) of the Federal
Rules of Civil Procedure, and written responses to all outstanding discovery requests within 14
days of entry of an order adding them to this action.
Respectfully submitted,
By:

/s/ Lorenz Michel Prüss

By:

/s/ Craig V. Rasile

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]

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

-and-

-and-

-2-

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 Page 3 of 8

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.

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

-3-

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 Page 4 of 8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on September 15, 2010, a copy of the foregoing
JOINT MOTION TO ADD PLAINTIFFS TO THE ACTION was filed with the Clerk of the
Court using CM/ECF. I also certify that the foregoing document is being served this day on all
counsel of record or pro se parties identified on the attached Service List in the manner specified
either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
the Notice of Electronic Filing.

By: /s/ Lorenz Michel Prüss
Lorenz Michel Prüss

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 Page 5 of 8

SERVICE LIST

Attorneys:

Representing:

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

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

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

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

-5-

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 Page 6 of 8

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.

-6-

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 Page 7 of 8

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

-7-

Case 1:09-md-02106-ASG Document 137 Entered on FLSD Docket 09/15/2010 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]

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.

-8-

Case 1:09-md-02106-ASG Document 137-1 Entered on FLSD Docket 09/15/2010 Page 1 of 2

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

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

/

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

The Motion is GRANTED.

2.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin
Worldwide Fund Ltd are hereby added as plaintiffs to this action and join in the
claims asserted by the Plaintiffs in the Second Amended Complaint [D.E. 15] filed
January 15, 2010 without the need of filing a separate complaint.

3.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin
Worldwide Fund Ltd shall be bound by all existing case deadlines.

4.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin
Worldwide Fund Ltd shall be bound by Amended MDL Order Number Eighteen
Granting in Part and Denying in Part Motions to Dismiss [D.E. 108].

Case 1:09-md-02106-ASG Document 137-1 Entered on FLSD Docket 09/15/2010 Page 2 of 2

5.

Scoggin Capital Management II LLC, Scoggin International Fund Ltd, and Scoggin
Worldwide Fund Ltd shall file Corporate Disclosure Statements pursuant to Rule 7.1
of the Federal Rules of Civil Procedure, Initial Disclosures pursuant to Rule 26(a)(1)
of the Federal Rules of Civil Procedure, and written responses to all outstanding
discovery requests within 14 days of entry of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this __ day of September,

2010.

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

cc:

Magistrate Judge Goodman
All Counsel of Record

Case 1:09-md-02106-ASG Document 138 Entered on FLSD Docket 09/17/2010 Page 1 of 1

Case 1:09-md-02106-ASG Document 139 Entered on FLSD Docket 09/21/2010 Page 1 of 2

Case 1:09-md-02106-ASG Document 139 Entered on FLSD Docket 09/21/2010 Page 2 of 2

Case 1:09-md-02106-ASG Document 140 Entered on FLSD Docket 09/21/2010 Page 1 of 2

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 applies to:
Case No. 09-CV-23835-ASG.
Case No. 10-CV-20236-ASG.
_________________________________/
MDL ORDER NUMBER 33; AMENDING PRE-TRIAL DEADLINES [ECF No. 134]
THIS CAUSE is before the Court upon the Notice submitted by Plaintiffs in
Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., No. 09-cv-23835-ASG
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”) [ECF No. 134]. After reviewing the Notice, the record, and being otherwise
duly advised, it is hereby
ORDERED AND ADJUDGED that the following time schedule shall govern:
By 10-15-2010

All non-dispositive pretrial motions (including motions pursuant
to Fed.R.Civ.P. 14, 15, 18 through 22, and 42 motions) shall
be filed. Any motion to amend or supplement the pleadings
filed pursuant to Fed.R.Civ.P. 15(a) or 15(d) shall comport with
S.D.Fla.L.R. 15.1 and shall be accompanied by the proposed
amended or supplemental pleading and a proposed order as
required. Prior to filing any non-dispositive motion, counsel for
the moving party shall confer, or make reasonable effort to
confer, with counsel for the opposing party in a good faith effort
to resolve the matter, and shall include in the motion a
statement certifying that this has been done. When filing
non-dispositive motions, the moving party shall submit a
proposed order in WORDPERFECT (or Word) format to
[e-mail].

Case 1:09-md-02106-ASG Document 140 Entered on FLSD Docket 09/21/2010 Page 2 of 2

By 1-15-2011

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
listed shall be permitted to testify.

By 2-15-2011

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
listed shall be permitted to testify.

DONE and ORDERED IN CHAMBERS at Miami, Florida this 20th day of
September, 2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc:

Magistrate Judge Jonathan Goodman
Counsel of record

Case 1:09-md-02106-ASG Document 142 Entered on FLSD Docket 09/22/2010 Page 1 of 1

Case 1:09-md-02106-ASG Document 143 Entered on FLSD Docket 09/22/2010 Page 1 of 2

Case 1:09-md-02106-ASG Document 143 Entered on FLSD Docket 09/22/2010 Page 2 of 2

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 1 of 8

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

In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
MOTION TO WITHDRAW AS COUNSEL
Waldman Trigoboff Hildebrandt Marx & Calnan, P.A. (the “Firm”), as counsel for
Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC, respectfully moves to withdraw as counsel and
states as follows:
1.

The Firm and Third Parties, Fontainebleau Resorts, LLC, Fontainebleau

Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC, have developed
irreconcilable differences between them concerning this litigation necessitating this
request.
2.

In particular, separate litigation in the Supreme Court of the State of New

York entitled: Wilmington Trust FSB, etc. et al., v. Fontainebleau Resorts, LLC, etc., et al.
(Case No. 650435/2009) has resulted in the issuance of an Order (Lowe, J.) dated
September 15, 2010, restraining the ability of Fontainebleau Resorts, LLC to transfer any
of its assets for any purpose, including the payment of attorneys’ fees and expenses.
Accordingly, undersigned counsel has no present ability to be compensated for its legal
services and/or to be reimbursed for expenses it may advanced on its clients’ behalves.

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 2 of 8

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

There will be no prejudice to any of the parties if the Firm is allowed to

withdraw as counsel for the Third Parties, Fontainebleau Resorts, LLC, Fontainebleau
Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC.
4.

Pursuant to S.D. Fla. L.R. 7.1(a)(1)(F), a proposed Order granting this Motion

is attached hereto.
5.

I hereby certify that pursuant to S.D. Fla. L.R. 7.1, undersigned counsel has

conferred or attempted to confer with counsel for the parties that may be affected by the
relief sought in this Motion. The affected parties have either not responded or have refused
to take a position with respect to the Motion.
WHEREFORE, Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., including
attorneys’ within the Firm, respectfully request this Honorable Court enter an order allowing
the withdrawal and relieving the Firm of further obligations as of the date of the Order.

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

By:

2

/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 144 Entered on FLSD Docket 09/22/2010 Page 3 of 8

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /GOODMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 22, 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.
I further certify that a true and correct coy of this Motion has been served by U.S.
Mail upon Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC, c/o Mario Romine, 19501 Biscayne Blvd., Suite
400, Aventura, FL 33180 on this 22nd day of September 2010.

WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 200
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

/s Sarah J. Springer
Glenn J. Waldman
Florida Bar No. 370113
Sarah J. Springer
Florida Bar No. 0070747

3

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 4 of 8

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

4

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 5 of 8

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

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

5

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 6 of 8

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

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.

6

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 7 of 8

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

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

7

Case 1:09-md-02106-ASG Document 144 Entered on FLSD Docket 09/22/2010 Page 8 of 8

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

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

8

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 1 of 7

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

In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
NOTICE OF FILING PROPOSED ORDER
Waldman Trigoboff Hildebrandt Marx & Calnan, P.A. (the “Firm”), as counsel for
Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC, hereby files its proposed Order with respect to
its Motion to Withdraw as counsel.

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

By:

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

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 2 of 7

MASTER CASE NO .: 09-MD- 2106-CIV-GOLD /GOODMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 22, 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.
I further certify that a true and correct coy of this Notice has been served by U.S.
Mail upon Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC, c/o Mario Romine, 19501 Biscayne Blvd., Suite
400, Aventura, FL 33180 on this 22nd day of September 2010.
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 200
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

/s Sarah J. Springer
Glenn J. Waldman
Florida Bar No. 370113
Sarah J. Springer
Florida Bar No. 0070747

2

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 3 of 7

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

3

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 4 of 7

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

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

4

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 5 of 7

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

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.

5

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 6 of 7

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

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

6

Case 1:09-md-02106-ASG Document 145 Entered on FLSD Docket 09/22/2010 Page 7 of 7

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

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

7

Case 1:09-md-02106-ASG Document 145-1 Entered on FLSD Docket 09/22/2010 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
MASTER CASE NO .: 09-MD- 2106-CIV-GOLD/GOODMAN
In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL
This came before the Court on Waldman Trigoboff Hildebrandt Marx & Calnan,
P.A.’s Motion to Withdraw as Counsel for Third Parties, Fontainebleau Resorts, LLC,
Fontainebleau Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC, dated
September 22, 2010. The Court having considered the Motion and being otherwise advised
in the premises, it is hereupon
ORDERED and ADJUDGED that said Motion be and the same is hereby Granted.
Waldman Trigoboff Hildebrandt Marx & Calnan, P.A. is hereby relieved of all
responsibilities attendant to the representation of

Fontainebleau Resorts, LLC,

Fontainebleau Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC in this
action. All future papers may be served upon Fontainebleau Resorts, LLC, Fontainebleau
Resorts Holdings, LLC and Fontainebleau Resorts Properties I, LLC as follows: c/o Mario
Romine, 19501 Biscayne Blvd., Suite 400, Aventura, FL 33180 .

DONE and ORDERED in chambers at Miami, Miami-Dade County, Florida this ___
day of September, 2010.
_______________________________________
HONORABLE JUDGE GOLD
cc:
Counsel of Record

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 1 of 45

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”).

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 2 of 45

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.

2

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 3 of 45

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
3

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 4 of 45

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

4

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 5 of 45

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.

5

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 6 of 45

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.

6

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 7 of 45

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.

7

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 8 of 45

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

8

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 9 of 45

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.

34

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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

35

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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.

36

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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

37

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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.

38

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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

39

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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.

40

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 41 of 45

DATED: September 23, 2010

Respectfully submitted,

By: /s/ Brett M. Amron
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]
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

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 42 of 45

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 23th 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

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 43 of 45

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

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 44 of 45

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.)

Case 1:09-md-02106-ASG Document 146 Entered on FLSD Docket 09/23/2010 Page 45 of 45

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/

Brett M. Amron__________
Brett M. Amron

Case 1:09-md-02106-ASG Document 147 Entered on FLSD Docket 09/29/2010 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
CASE No.: 09-2106-MD-GOLD/GOODMAN
IN RE :
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.

:
:
:
:
:
:
:
:
:
:

JOINT RESPONSE TO WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.’S MOTION TO WITHDRAW AS COUNSEL
Plaintiffs in Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., No. 09-cv23835-ASG and ACP Master, LTD., et al. v. Bank of America, N.A., et al., No. 10-cv-20236ASG (collectively, the “Term Lender Plaintiffs”) and Defendant Bank of America, N.A.
(“BANA”), by their undersigned attorneys, jointly respond to Waldman Trigoboff Hildebrandt
Marx & Calnan, P.A.’s (“Waldman”) Motion To Withdraw As Counsel for Fontainebleau
Resorts, LLC, Fontainebleau Resorts Holdings, LLC and Fontainebleau Resorts Properties I,
LLC (together, “FBR”) as follows:
I.

WALDMAN’S PRINCIPAL BASIS FOR WITHDRAWING AS COUNSEL HAS
BEEN ELIMINATED
Waldman’s principal basis for seeking to withdraw as FBR’s counsel are alleged

“irreconcilable differences” with FBR that have developed as a result of the New York State
Supreme Court’s September 15, 2010 Order in Wilmington Trust FSB v. Fontainebleau Resorts,
LLC “restraining the ability of Fontainebleau Resorts, LLC to transfer any of its assets for any
purpose, including the payment of attorneys’ fees and expenses.” Motion to Withdraw as
Counsel, ¶ 2. But recent developments in the Wilmington Trust action have eliminated this basis
for Waldman’s withdrawal motion. On September 27, 2010, the parties to the Wilmington Trust

Case 1:09-md-02106-ASG Document 147 Entered on FLSD Docket 09/29/2010 Page 2 of 4

action entered a stipulation to dissolve the temporary restraining order. See K. Dillman Aff.
Ex. 1. Nonetheless, Waldman has confirmed that it intends to proceed with its withdrawal
motion even though there is no longer any legal impediment to it being paid and no indication
that FBR is refusing to pay Waldman. See K. Dillman Aff. Exs. 2, 3. Thus, Waldman’s motion
is baseless.
II.

WALDMAN’S WITHDRAWAL SHOULD NOT BE PERMITTED TO FURTHER
DELAY FBR’S COMPLIANCE WITH THE SUBPOENAS ISSUED IN THIS
CASE
BANA and the Term Lender Plaintiffs are concerned that if Waldman is permitted to

withdraw as FBR’s counsel there will be a further delay of FBR’s production of documents
responsive to the subpoenas issued in this case. The Term Lender Plaintiffs and BANA have
each served a subpoena on FBR seeking documents related to the Fontainebleau Las Vegas
project. This Court’s August 30, 2010 order on the Term Lender Plaintiffs’ Motion To Compel
required FBR to produce all non-privileged documents responsive to the Term Lenders’ April
22, 2010 subpoena by no later than September 13, 2010. See DE #129. In addition, FBR was
required to produce documents in response to BANA’s September 2, 2010 subpoena by no later
than September 17, 2010. FBR has yet to comply with these subpoenas. To date, FBR has
produced no electronic documents, and has only made available for inspection approximately 80
boxes of non-privileged documents in Aventura, Florida.

2

Case 1:09-md-02106-ASG Document 147 Entered on FLSD Docket 09/29/2010 Page 3 of 4

BANA and the Term Lender Plaintiffs respectfully submit that Waldman should only be
permitted to withdraw as FBR’s counsel to the extent that such withdrawal will not further delay
FBR’s compliance with the outstanding subpoenas.
Dated: September 29, 2010
Respectfully submitted,
By:

/s/ Lorenz Michel Prüss

By:

/s/ Brett Amron

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

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

-and-

-and-

J. Michael Hennigan
Kirk D. Dillman
HENNIGAN BENNETT & DORMAN LLP
865 S. Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile:
[phone]

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, Illinois 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.
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:
[e-mail]
-and3

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

4

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Case 1:09-md-02106-ASG Document 150 Entered on FLSD Docket 10/04/2010 Page 1 of 7

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. 09-CV-23835
GOLD/GOODMAN.

/

CORPORATE DISCLOSURE STATEMENT OF PLAINTIFFS SCOGGIN CAPITAL
MANAGEMENT II LLC, SCOGGIN INTERNATIONAL FUND LTD, AND SCOGGIN
WORLDWIDE FUND LTD PURSUANT TO F.R.C.P. RULE 7.1
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Plaintiffs Scoggin Capital
Management II LLC, Scoggin International Fund Ltd, and Scoggin Worldwide Fund Ltd disclose
the following:
1.

Plaintiff Scoggin Capital Management II LLC is a limited liability company

formed under the laws of Delaware, whose Investment Advisor is Scoggin LLC.
2.

Plaintiff Scoggin International Fund Ltd is a limited liability company formed

under the laws of the Cayman Islands, whose Investment Advisor is Scoggin LLC.
3.

Plaintiff Scoggin Worldwide Fund Ltd is a limited liability company formed

under the laws of the Cayman Islands, whose Investment Manager is Old Bellows Partners LP.
Plaintiffs have no parent company and no publicly-held company owns more than 10% of
these Plaintiffs’ shares.

Case 1:09-md-02106-ASG Document 150 Entered on FLSD Docket 10/04/2010 Page 2 of 7

Dated: October 4, 2010

By:

/s/ Lorenz Michel Prüss

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

2

Case 1:09-md-02106-ASG Document 150 Entered on FLSD Docket 10/04/2010 Page 3 of 7

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on October 4, 2010, a copy of the foregoing
CORPORATE DISCLOSURE STATEMENT OF PLAINTIFFS SCOGGIN CAPITAL
MANAGEMENT II LLC, SCOGGIN INTERNATIONAL FUND LTD, AND SCOGGIN
WORLDWIDE FUND LTD 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

3

Case 1:09-md-02106-ASG Document 150 Entered on FLSD Docket 10/04/2010 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

4

Case 1:09-md-02106-ASG Document 150 Entered on FLSD Docket 10/04/2010 Page 5 of 7

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.

5

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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

6

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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]

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.

7

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-2106-CIV–GOLD/GOODMAN

In re:
Fontainebleau Las Vegas Contract Litigation
/
This Document Relates to cases:
09-CV-23835-ASG
10-CV-20236-ASG
__________________________________________/
PLAINTIFF TERM LENDERS’ JOINT MOTION FOR PARTIAL FINAL JUDGMENT
AND MEMORANDUM OF LAW IN SUPPORT THEREOF1
On May 28, 2010, this Court dismissed with prejudice all of the Term Lender2 claims
seeking damages from the Revolving Lenders for their refusals to fund their commitments under
a Credit Agreement to finance the construction of the Fontainebleau Casino and Resort. See
Amended MDL Order Number 18 (the “May 28 Order”) at 30–31. The May 28 Order fully
resolved the merits of the Term Lender claims against the Revolving Lenders for their refusals to
fund their commitments under the Credit Agreement, leaving only claims against Bank of
America (“BofA”) in its role as Bank Agent and Disbursement Agent for the Lenders.
Thereafter, on September 20, 2010, the Court dismissed all of the claims brought by the Trustee
in the related adversary proceeding, No. 09-cv-21879-ASG, including the Trustee’s own claim
against the Revolving Lenders for their refusals to provide funds. See MDL Order Number 35.

1 Counsel for the Term Lenders have conferred with all parties or non-parties who may be affected by

the relief sought by this motion in a good faith effort to resolve the issues raised in the motion and have
been unable to do so.
2 The Term Lenders include all of the Plaintiffs captioned in the Second Amended Complaint in Avenue

CLO Fund, Ltd., et al v. Bank of America, N.A., et al, No. 09-cv-23835-ASG (the “Avenue Complaint”),
and the Amended Complaint in ACP Master, Ltd., et al v. Bank of America, N.A., et al, No. 10-cv-20236ASG (the “Aurelius Complaint”).

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 2 of 10

The Court entered judgment, so the Trustee may appeal dismissal of that claim as of right. The
Trustee has indicated that he will appeal. Because of the substantial identity of issues in the
Term Lenders’ and the Trustee’s claims against the Revolving Lenders, the Eleventh Circuit
should consider the Term Lenders’ claims against the Revolving Lenders at the same time.
Therefore, the Term Lenders jointly move that the Court enter partial final judgment under
Federal Rule of Civil Procedure 54(b) so that the Term Lenders may take an appeal, at the same
time as the Trustee, of their claims seeking damages from the Revolving Lenders for their
refusals to fund their commitments under a Credit Agreement.
ARGUMENT
The Avenue Complaint and the Aurelius Complaint each allege two distinct theories of
liability, against two classes of defendants, arising from breach of two agreements. One theory
of liability alleges that all eleven defendants—as Revolving Lenders—breached their obligations
under the Credit Agreement when they refused to fund a series of Notices of Borrowing. Claims
arising from this theory are alleged in Counts II, III, and IV of the Avenue Complaint and in
Counts I and II of the Aurelius Complaint. This Court dismissed all of those claims with
prejudice. May 28 Order at 30–31.
The second theory of liability relates to BofA only, in its capacities as Bank Agent and
Disbursement Agent for all of the Term Lenders. Count I of the Avenue Complaint and Count
III of the Aurelius Complaint allege that BofA breached its obligations under the Disbursement
Agreement when it disbursed funds from an account it managed on behalf of the lenders—
despite its actual knowledge that Events of Default precluded disbursement. The Court denied
BofA’s motion to dismiss those claims. May 28 Order at 30–31.
In a multi-claim, multi-party case where there is “no just reason for delay,” district courts
may grant final judgment after resolving one or more, but fewer than all, of the claims presented.

2

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 3 of 10

Fed. R. Civ. P. 54(b). The Eleventh Circuit applies a two-step analysis for deciding the propriety
of partial final judgment under Rule 54(b): a judgment should be certified under Rule 54(b) if
(1) the decision “is in fact both ‘final’ and a ‘judgment’” and (2) there is “no just reason for
delay.” Eagletech Communications Inc. v. Citigroup, Inc., 2008 U.S. Dist. LEXIS 49432, *60
(S.D. Fla. June 27, 2008) (Gold, J.).
The May 28 Order is a final decision as to all of the claims arising from the Revolving
Lenders’ failure to fund, and there is no just reason to delay the Court of Appeals’ consideration
of the legal basis for these claims.
I.

The May 28 Order Is a Final Decision as to All of the Claims Arising from the
Revolving Lenders’ Failure to Fund.
The authority to certify under Rule 54(b) applies to “final decisions.” “A decision is

‘final’ if it is ‘an ultimate disposition of an individual claim [or individual party] entered in the
course of a multiple claims action.” Eagletech, 2008 U.S. Dist. LEXIS 49432, *60 (citing Lloyd
Noland Foundation, Inc. v. Tenet Health Care Corp., 483 F.3d 773 (11th Cir. 2007)).
Standing alone, the fact that the Order dismissed with prejudice all of the claims against
ten out of eleven Defendants is sufficient to make it a final decision within the meaning of Rule
54(b). See In re Southeast Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995) (explaining that
a judgment is final if it “disposes entirely of a separable claim or dismisses a party entirely”). As
this Court has said, “the most common application of the rule to multi-party actions is the
dismissal, summary judgment, or other adjudication of all of the claims asserted against one or
more of multiple Defendants." Access Now, Inc. v. AMH CGH, Inc., 2001 U.S. Dist. LEXIS
12876, *23 (S.D. Fla. May 11, 2001) (Gold, J.) (quoting Moore's Federal Practice §
54.22[2][c]).

3

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 4 of 10

II.

There Is No Just Reason for Delaying the Eleventh Circuit’s Consideration of the
Dismissed Claims
“[I]n deciding whether there are no just reasons to delay the appeal of individual final

judgments ... a district court must take into account judicial administrative interests as well as the
equities involved.” Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 (1980). “In
determining that there is no just reason for delay, courts may consider ‘any judicial
administrative advantage that might be served by entering the judgment under Rule 54(b).’”
Access Now, 2001 U.S. Dist. LEXIS 12876, *24.
Judicial administrative interests weigh in favor of a judgment under Rule 54(b) because
the denial of a Rule 54(b) judgment will result in duplicative appeals to the Eleventh Circuit, first
by the Trustee and later by the Term Lenders. On September 20, the Court dismissed with
prejudice all of the Trustee’s claims. The Trustee intends to appeal the May 28th Order. See
Chapter 7 Trustee’s Notice of Intention with Regard to Case No. 1:09-cv-21879-ASG, at 6
(asking for a judgment from which the Trustee may appeal). The Trustee must bring his
intended appeal by October 20, which is 30 days after the Court entered judgment. See Fed. R.
App. P. 4(a)(1)(A). Absent a Rule 54(b) judgment in the Term Lenders’ cases, the Term Lenders
cannot bring an appeal at the same time, because the May 28 Order is not a final judgment unless
certified as such under Rule 54(b). Without an immediate appeal, neither the Revolving Lenders
nor the Term Lenders can finally resolve their legal relationship until a final decision issues on
the Disbursement Agreement claims. That could be more than a year from now. Under the
current scheduling order, discovery on the remaining Disbursement Agreement claims is set to
last until July 2011, and trial is scheduled for 2012. MDL Order Number 3 at 6, 1. The Term
Lenders intend to appeal this Court’s dismissal with prejudice of their claims seeking damages
from the Revolving Lenders for their refusals to fund their commitments under a Credit

4

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 5 of 10

Agreement. Therefore, the Eleventh Circuit will be forced to consider two separate appeals.
Such “piecemeal appeals” are one of the problems Rule 54(b) was meant to remedy. See
Curtiss-Wright Corp., 446 U.S. at 8. The policy against multiplying appeals supported the
Court’s decision to deny Fontainebleau’s request for interlocutory review in January, just as it
now weighs in favor of entering judgment on the Term Lender claims under Rule 54(b). In light
of the positive effect an immediate appeal would have on the Eleventh Circuit’s workload, the
benefit of early resolution and finality weigh heavily in favor of a Rule 54(b) judgment.
The equities weigh in favor of a judgment under Rule 54(b) because the denial of a Rule
54(b) judgment will prejudice the Term Lenders’ right to appeal. The interests of the Term
Lenders and the Trustee are significantly aligned, but not entirely, and they have raised different
arguments for their positions. It would be unfair to the Term Lenders if the Eleventh Circuit
were to decide the common issues without the benefit of the Term Lenders’ distinct arguments.
This would prejudice the Term Lenders while favoring the Defendants who may persuade the
Eleventh Circuit of their position on an incomplete view that they could not advance successfully
if the Term Lenders were allowed to be a part of that appeal in the first instance.
CONCLUSION
Because there is no just reason for delay, the Term Lenders respectfully request that the
Court grant judgment under Rule 54(b) with respect to Claims II, III, and IV of the Avenue
Complaint and Claims I and II of the Aurelius Complaint.

5

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 6 of 10

DATED: October 6, 2010

Lorenz M. Pruss
David A. Rothstein
DIMOND KAPLAN & ROTHERSTEIN PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]
-andJ. Michael Hennigan
Kirk D. Dillman
HENNIGAN, BENNETT & DORMAN LLP
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Avenue CLO Fund,
LTD., et al.

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..

6

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 6, 2010, I served a true and correct copy of the
Term Lenders’ Joint Motion for Partial Final Judgment by first-class mail upon the following:
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]

Kevin M. Eckhardt
Hunton & Williams
1111 Brickell Ave., Ste. 2500
Miami, FL 33131
[phone]

Attorneys for Bank of America, N.A.;
Merrill Lynch Capital Corporation

Attorneys for Bank of America, N.A.;
Merrill Lynch Capital Corporation

Craig V. Rasile
Hunton & Williams
1111 Brickell Ave., Suite 2500
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Thomas C. Rice
Lisa H. Rubin
David J. Woll
Simpson Thacher & Bartlett LLP
425 Lexington Ave.
New York, NY 10017-3954
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

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

7

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 8 of 10

Mark D. Bloom
John B. Hutton, III
Greenberg Traurig
1221 Brickell Ave.
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

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; Bank of Scotland plc

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

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]

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

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]

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

Attorneys for Sumitomo Mitsui Banking
Corporation

8

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 9 of 10

Aaron Rubinstein
Phillip A. Geraci
Andrew A. Kress
W. Stewart Wallace
Kaye Scholer LLP
425 Park Ave.
New York, NY 10022-3598
Telephone: [phone]
Facsimile: [phone]

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

Attorneys for HSH Nordbank AG, New
York Branch

Aaron R. Maurice
Woods Erickson Whitaker & Maurice
LLP
1349 W. Galleria Dr., Suite 200
Henderson, NV 89014-8624
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

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.

9

Case 1:09-md-02106-ASG Document 151 Entered on FLSD Docket 10/06/2010 Page 10 of 10

Nicholas J. Santoro
Santoro, Driggs, Walch, Kearney, Holley
& Thompson
400 S. Fourth St., 3rd Floor
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: [phone]

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

Attorneys for Camulos Master Fund, L.P.

Attorneys for Fontainebleau Las Vegas
LLC

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.
Brett M. Amron
Bast Amron LLP
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs ACP Master, Ltd.
and Aurelius Capital Master, Ltd.

/s/ Brett M. Amron_______
Brett M. Amron

10

Case 1:09-md-02106-ASG Document 152 Entered on FLSD Docket 10/06/2010 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/GOODMAN
In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
FONTAINEBLEAU RESORTS, LLC’S REPLY TO THE JOINT RESPONSE TO ITS
MOTION TO WITHDRAW AS COUNSEL
Waldman Trigoboff Hildebrandt Marx & Calnan, P.A. (the “Firm”), as counsel for
Third Parties, Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC (the “Clients”), respectfully files and serves its
Reply to the Joint Response to its Motion to Withdraw as Counsel dated September 29,
2010, and states as follows:
1.

In response to the Firm’s Motion to Withdraw as Counsel dated September

22, 2010 (the “Motion”), the Plaintiffs in Avenue CLO Fund, Ltd., et al. v. Bank of America,
et al. and ACP Master, Ltd., et al v. Bank of America, N.A., et al. (the “Term Lender
Plaintiffs”) and Defendant, Bank of America, assert that the basis for the Firm’s Motion has
been entirely eliminated simply because the New York State Court temporary restraining
order entered against Fontainebleau Resorts, LLC by the Court in Wilmington Trust FSB
v. Fontainebleau Resorts, LLC was dissolved.
2.

What the Term Lender Plaintiffs and Defendant fail to mention is that the

$1.036 billion judgment entered against Fontainebleau Resorts, LLC on September 8,
2010 and which prompted the temporary restraining order has not been dissolved, vacated

Case 1:09-md-02106-ASG Document 152 Entered on FLSD Docket 10/06/2010 Page 2 of 8

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /GOODMAN
or otherwise nullified. The $1.036 billion judgment is attached hereto as Exhibit “A.”
3.

Under the circumstances of that judgment, the Clients have no present ability

to compensate the Firm for its on-going services in this, or any other, legal proceeding. As
such, irreconcilable differences still exist between the Firm and its Clients and the basis for
the Firm’s Motion has not been eliminated as Term Lender Plaintiffs and Defendant
speculatively assert.
4.

The Firm should be permitted to withdraw. R. Regulating Fla. Bar 4-

1.16(b)(5) (“...a lawyer may withdraw from representing a client if... the representation will
result in an unreasonable financial burden on the lawyer...”).
WHEREFORE, Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., including
attorneys’ within the Firm, respectfully request this Honorable Court enter an order allowing
the withdrawal and relieving the Firm of further obligations as of the date of the Order.
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 202
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

2

/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 152 Entered on FLSD Docket 10/06/2010 Page 3 of 8

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD /GOODMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 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.
I further certify that a true and correct coy of this Motion has been served by U.S.
Mail upon Fontainebleau Resorts, LLC, Fontainebleau Resorts Holdings, LLC and
Fontainebleau Resorts Properties I, LLC, c/o Mario Romine, 19501 Biscayne Blvd., Suite
400, Aventura, FL 33180 on this 6th day of October 2010.

WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 200
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]

By:

/s Sarah J. Springer
Glenn J. Waldman
Florida Bar No. 370113
Sarah J. Springer
Florida Bar No. 0070747

3

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

4

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

5

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

6

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

7

Case 1:09-md-02106-ASG Document 152 Entered on FLSD Docket 10/06/2010 Page 8 of 8

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

8

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Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 1 of 13

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 FOR SANCTIONS AGAINST FONTAINEBLEAU
RESORTS, LLC FOR FAILURE TO COMPLY WITH COURT ORDER TO PRODUCE
DOCUMENTS IN RESPONSE TO SUBPOENA
Pursuant to Federal Rule of Civil Procedure 37 and 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 imposing appropriate
sanctions against Fontainebleau Resorts, LLC (“FBR”) for failing to comply with this Court’s
August 30, 2010 Order compelling FBR to produce documents.
I.

INTRODUCTION
On April 22, 2010, the Term Lenders issued a subpoena to FBR. FBR failed to produce

more than a handful of documents in response. On August 30, 2010, the Court granted the Term
Lenders’ Motion to Compel and ordered FBR to produce all non-privileged documents, in
particular electronic documents located on its servers, by September 13, 2010 and to provide a

Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 2 of 13

privilege log by September 20, 2010 (DE #129). FBR has done neither. Instead, on September
22, 2010, FBR’s counsel moved to withdraw (DE #144).
Having exhausted all other remedies to enforce their subpoena, the Term Lenders now
request that the Court hold FBR in contempt, order FBR immediately to produce for inspection
all documents, including the entirety of the three servers it contends house responsive electronic
documents, order FBR to pay the Term Lenders’ fees and costs incurred in extracting responsive
documents from the servers pursuant to the search terms and parameters the parties have already
agreed upon, and order FBR to pay the Term Lenders’ fees and costs incurred in bringing this
Motion and the Motion to Compel.
II.

BACKGROUND
Fontainebleau Las Vegas, LLC (“FBLV”) is the borrower at the center of this legal

storm. (Declaration of Robert W. Mockler in Support of Motion for Sanctions against
Fontainebleau Resorts, LLC for Failure to Comply with Court Order to Produce Documents
in Response to Subpoena (“Mockler Decl.”), ¶ 2.) FBR is FBLV’s parent. (Id.) On April 22,
2010, the Term Lenders served FBR with a subpoena seeking documents regarding the project at
issue in this action. FBR produced a few hundred pages of hard copy documents. (Id. at ¶ 3.) It
failed to produce the vast bulk of its hard copy documents (which it now contends consists of
approximately 80 boxes) and failed altogether to produce a single electronic document. (Id.)
Instead, FBR raised the same objections it had unsuccessfully advanced in seeking to
quash subpoenas served by other parties in this case. Namely, that its electronic documents are
stored on three servers that also contain documents belonging to FBLV and other FBR affiliates.
FBR asserted that it could not produce its documents without the consent of its affiliates, but it
refused to provide any timetable for when that might occur.

2

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On August 19, 2010, the Term Lenders filed their Motion to Compel, seeking an order
requiring FBR to produce by September 17, 2010 all non-privileged, responsive documents,
including all such documents on the three servers (DE #123). United States Magistrate Judge
Jonathan Goodman heard the Motion. On August 30, “[i]n light of the extended pendency of this
subpoena and in order to accommodate Judge Gold’s trial setting order,” Judge Goodman
granted the Motion and ordered FBR to produce all responsive, non-privileged documents by
September 13 and a privilege log by September 20 (DE #129). (Mockler Decl., Ex. A.)
In a September 7 email, FBR’s counsel sought assistance in crafting search terms and
date ranges to help reduce the time and expense of FBR’s production of electronic documents.
(Id., Ex. B.) Term Lenders’ counsel immediately provided a draft set of terms. (Id. at ¶ 8.) By
September 14, all parties, including Bank of America, N.A. (“BofA”) and the Revolving
Lenders, had agreed to a set of approved search terms and date restrictions. (Id., Ex. C.) FBR,
however, has failed to produce a single electronic document. (Id., ¶¶ 6 & 11.)
In that same September 7 email, FBR stated that approximately 80 boxes of documents
“will be ready for your review in South Florida.” (Id., Ex. B.) For the next month, however,
FBR ignored repeated attempts by the Term Lenders to arrange for review of the hard copy
documents. (Id., ¶ 9 & Ex. D.)
On September 22, more than a week after the production deadline set forth in the Order,
FBR’s counsel filed a Motion to Withdraw (DE #144), citing FBR’s purported inability to pay
counsel’s fees and costs as a result of a TRO issued in another action. The Term Lenders and
BofA filed a Joint Response noting that the TRO had been dissolved and requesting that FBR’s
counsel be permitted to withdraw only to the extent that such withdrawal would not further delay
FBR’s compliance with the outstanding subpoenas (DE #147).

3

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On October 7, having received no electronic documents from FBR and no response to
multiple inquiries regarding the 80 boxes of documents, the Term Lenders sent an email to FBR
indicating their intention to file a motion for sanctions for FBR’s failure to comply with the
Court’s August 30, 2010 Order. (Id., Ex. E.) Faced with a sanctions motion, FBR indicated that
it would make the boxes available for review. (Id.) However, while FBR indicated it had begun
to review electronic documents, it still refused to provide any timetable for production of
electronic documents. (Id.).
III.

FBR SHOULD BE SANCTIONED FOR FAILURE TO COMPLY WITH THE
AUGUST 30 ORDER
“The district court has broad discretion to control discovery. This power includes the

ability to impose sanctions on uncooperative litigants.” Phipps v. Blakeney, 8 F.3d 788, 790
(11th Cir. 1993) (affirming district court’s imposition of sanction of dismissal). Where a party
“fails to obey an order to provide or permit discovery,” the court “may issue further just orders.”
Fed. R. Civ. P. 37(b)(2)(A). As the Local Rules of this Court make abundantly clear:
Federal Rule of Civil Procedure 37 is enforced in this District.
Further, if a Court order is obtained compelling discovery,
unexcused failure to provide a timely response is treated by the
Court with the gravity it deserves; willful violation of a Court
order is always serious and may be treated as contempt.1
S.D. Fla. Local Rules, Appendix A (Discovery Practices Handbook), at Section I.D(4). In
addition to any other sanction, Rule 37 specifically directs that the court “must order the
disobedient party, the attorney advising that party, or both to pay the reasonable expenses,

1

Rule 45 also specifically allows a Court to “hold in contempt a person who, having been
served, fails without adequate excuse to obey the subpoena.” Fed. R. Civ. P. 45(e).

4

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including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
FBR refused to comply with the subpoena in the first instance and now refuses to comply
with the Court’s August 30 Order. FBR has offered no explanation or excuse, let alone provided
the “substantial justification” required to avoid Rule 37 sanctions. Fed. R. Civ. P. 37(b)(2)(C);
see also DeVaney v. Continental Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993) (Rule 37
sanctions require no finding of bad faith and are mandatory absent showing of substantial
justification).
FBR’s delays have and will continue to present a significant risk to the administration of
these coordinated MDL actions. FBR and its managers were heavily involved in the project,
including the financing of the project. The Term Lenders are reluctant to engage in substantial
deposition practice without the benefit of FBR’s documents. Accordingly, continued delay in
the production of those documents, including in particular FBR’s electronic documents, imperils
the schedule this Court has put in place.
The Eleventh Circuit has noted that “[s]anctions allowed under Rule 37 are intended to 1)
compensate the court and other parties for the added expense caused by discovery abuses, 2)
compel discovery, 3) deter others from engaging in similar conduct, and 4) penalize the
offending party or attorney.” Wouters v. Martin County, 9 F.3d 924, 933-934 (11th Cir. 1993)
(citations omitted). Holding FBR in contempt and imposing monetary sanctions will punish
FBR and compensate the Term Lenders for the direct costs they have incurred in forcing FBR’s
compliance with its discovery obligations.
Those sanctions alone, however, will not ensure that FBR produces its documents
immediately so that these actions can proceed as scheduled. Indeed, FBR’s conduct to date
strongly suggests that its production of electronic documents will, at best, hit additional snags

5

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and delays and, at worst, simply be abandoned at some point in the future for purported lack of
funds or otherwise. The Term Lenders accordingly request that the Court order FBR to produce
for inspection not only all hard-copy documents but also the three servers that house responsive
electronic documents. The Term Lenders will then search these servers using the search terms
and time parameters previously agreed to by the parties. In order not to reward FBR for its
violation of this Court’s Order, the Term Lenders further request that FBR be ordered to pay for
the fees and costs incurred by the Term Lenders in extracting responsive documents from these
servers.
IV.

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.

6

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V.

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

holding FBR in contempt, order FBR immediately to produce for inspection all hard-copy
documents as well as the entirety of the three servers it contends house responsive electronic
documents, order FBR to pay the Term Lenders’ fees and costs incurred in extracting responsive
documents from the servers pursuant to the search terms and parameters the parties have already
agreed upon, and order FBR to pay the Term Lenders’ fees and costs incurred in bringing this
Motion and the Motion to Compel.
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.

7

Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 8 of 13

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing TERM LENDERS’
MOTION FOR SANCTIONS AGAINST FONTAINEBLEAU RESORTS, LLC FOR FAILURE
TO COMPLY WITH COURT ORDER TO PRODUCE DOCUMENTS 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: October 8, 2010
/s/ Lorenz Michel Prüss

_

Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 9 of 13

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 153 Entered on FLSD Docket 10/08/2010 Page 10 of 13

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

10

Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 11 of 13

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

11

Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 12 of 13

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

12

Case 1:09-md-02106-ASG Document 153 Entered on FLSD Docket 10/08/2010 Page 13 of 13

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

13

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Case 1:09-md-02106-ASG Document 154 Entered on FLSD Docket 10/09/2010 Page 1 of 3

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 cases.

/

NOTICE OF REQUEST FOR TERMINATION OF
APPEARANCE OF ATTORNEY ON SERVICE LIST
The Term Lenders,1 by and through the undersigned counsel, hereby give notice of this
request to the Clerk of Courts that the following person be terminated from the Service List:
Lauren Smith
Hennigan, Bennett & Dorman LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017
Dated: October 9, 2010

Respectfully submitted,
By: /s Lorenz Michel Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz M. Prüss, Esq.
Fla Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders

1 The Term Lenders include the plaintiffs in the case captioned Avenue CLO Fund, Ltd., et al. v.

Bank of America, N.A., et al., Case No. 09-cv-1047-KJD-PAL (D. Nev.).

2

Case 1:09-md-02106-ASG Document 154 Entered on FLSD Docket 10/09/2010 Page 2 of 3

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

Case 1:09-md-02106-ASG Document 154 Entered on FLSD Docket 10/09/2010 Page 3 of 3

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF REQUEST
FOR TERMINATION OF APPEARANCE OF ATTORNEY ON SERVICE LIST 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: October 9, 2010.
/s Lorenz Michel Prüss
iManage\1640408.1

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
CASE No.: 09-02106-MD-GOLD/GOODMAN
IN RE :
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to Case Number:
10-CV-20236-ASG

:
:
:
:
:
:
:
:
:
:
:
:

ANSWER OF DEFENDANT BANK OF AMERICA, N.A.
Defendant Bank of America, N.A. (“BANA”), by its undersigned attorneys, hereby
answers the Second Amended Complaint (the “Aurelius Complaint”) and responds, with
knowledge as to its own acts and upon information and belief as to the acts of others, as follows:
1.

BANA denies paragraph 1’s allegations.

2.

BANA denies paragraph 2’s allegations, except admits that the Project is being

constructed on the north end of the Las Vegas Strip on approximately 24.4 acres and includes a
63-story skyscraper, a 100-foot high three-level podium and a 353,000 square-foot convention
center.1
3.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 3’s allegations, except admits that on June 6, 2007, Defendants and other lenders
entered into the Credit Agreement and respectfully refers the Court to the Credit Agreement for
its true and correct contents.
1

Capitalized terms not otherwise defined herein have the meaning used in the Credit Agreement or, if applicable,
the Disbursement Agreement.

Case 1:09-md-02106-ASG Document 158 Entered on FLSD Docket 10/12/2010 Page 2 of 23

4.

Admitted.

5.

BANA denies the allegations in paragraph 5’s first sentence and respectfully

refers the Court to the governing loan agreements for their true and correct contents. BANA
states that no response is necessary as to paragraph 5’s second sentence.
6.

BANA denies paragraph 6’s allegations and avers that the Court has already

determined, in its May 28, 2010 Amended MDL Order Number Eighteen; Granting in Part and
Denying in Part Motions to Dismiss [DE 35]; [DE 36]; Requiring Answer to Complaints;
Vacating Final Judgment (“Amended MDL Order Number Eighteen”), that BANA was not
obligated to fund the Revolving Loan because “‘fully drawn . . . unambiguously means ‘fully
funded’; and . . . the Delay Draw Term Loans had not been ‘fully drawn’ at the time
Fontainebleau submitted the March Notices of Borrowing.”
7.

BANA admits that the United States District Court for the Southern District of

Florida has jurisdiction over this matter under 12 U.S.C. § 632, and that BANA is a national
banking association organized under the laws of the United States. BANA denies knowledge or
information sufficient to form a belief as to the truth of paragraph 7’s remaining allegations.
8.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 8’s allegations, except admits that the United States District Court for the Southern
District of New York is a proper venue for this action.
9.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 9’s allegations.
10.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 10’s allegations.

2

Case 1:09-md-02106-ASG Document 158 Entered on FLSD Docket 10/12/2010 Page 3 of 23

11.

BANA denies paragraph 11’s allegations, except admits that (i) BANA is a

national banking association with its main office in Charlotte, North Carolina, (ii) BANA is a
Revolving Loan Lender, (iii) BANA served as Administrative Agent under the Credit Agreement
and as Disbursement Agent under the Disbursement Agreement, and (iv) BANA agreed to fund
$100 million under the Revolving Facility. BANA respectfully refers the Court to the governing
loan agreements for their true and correct contents.
12.

BANA denies paragraph 12’s allegations, except admits that (i) Merrill Lynch

Capital Corporation is a Delaware Corporation with a principal place of business in New York
and is indirectly owned by Bank of America Corporation, and (ii) that Merrill Lynch Capital
Corporation agreed to fund $100 million under the Revolving Facility. BANA respectfully
refers the Court to the governing loan agreements for their true and correct contents.
13.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 13’s allegations, except admits that J.P. Morgan Chase Bank, N.A. agreed to fund
$90 million under the Revolving Facility.
14.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 14’s allegations, except admits that Barclays Bank PLC agreed to fund
$100 million under the Revolving Facility.
15.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 15’s allegations, except states that Deutsche Bank Trust Company Americas agreed
to fund $100 million under the Revolving Facility.
16.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 16’s allegations, except admits that The Royal Bank of Scotland PLC agreed to
fund $90 million under the Revolving Facility.

3

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17.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 17’s allegations, except admits that Sumitomo Mitsui Banking Corporation agreed
to fund $90 million under the Revolving Facility.
18.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 18’s allegations, except admits that Bank of Scotland agreed to fund $72.5 million
under the Revolving Facility.
19.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 19’s allegations, except admits that HSH Nordbank AG agreed to fund $40 million
under the Revolving Facility.
20.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 20’s allegations, except admits that MB Financial Bank, N.A. agreed to fund
$7.5 million under the Revolving Facility.
21.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 21’s allegations, except admits that Camulos Master Fund, L.P. agreed to fund
$20 million under the Revolving Facility.
22.

BANA states that the allegations in paragraph 22 require no response.

23.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 23’s allegations, except admits that the Credit Agreement was entered into on
June 6, 2007, and respectfully refers the Court to the Credit Agreement for its true and correct
contents.
24.

BANA denies paragraph 24’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.

4

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25.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 25’s allegations.
26.

Admitted.

27.

BANA denies paragraph 27’s allegations, except admits that (i) BANA served as

Administrative Agent under the Credit Agreement and as Disbursement Agent under the
Disbursement Agreement and (ii) the Disbursement Agreement was entered into on June 6,
2007, and respectfully refers the Court to the governing loan agreements for their true and
correct contents.
28.

BANA denies paragraph 28’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.
29.

BANA denies paragraph 29’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.
30.

BANA denies paragraph 30’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.
31.

BANA denies paragraph 31’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
32.

BANA denies the allegations in paragraph 32’s first and second sentences, and

respectfully refers the Court to the governing loan agreements for their true and correct contents.
BANA states that no response is necessary as to paragraph 32’s third sentence.
33.

BANA denies paragraph 33’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
34.

BANA denies paragraph 34’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.

5

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35.

Admitted.

36.

BANA denies paragraph 36’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.
37.

BANA denies paragraph 37’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
38.

BANA denies paragraph 38’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
39.

BANA denies paragraph 39’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
40.

BANA denies paragraph 40’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.
41.

BANA denies paragraph 41’s allegations, respectfully refers the Court to the

Credit Agreement for its true and correct contents and BANA further avers that the Court has
already determined in Amended MDL Order Number Eighteen that “‘fully drawn’ . . .
unambiguously means ‘fully funded’; and . . . the Delay Draw Term Loans had not been ‘fully
drawn’ at the time Fontainebleau submitted the March Notices of Borrowing.”
42.

BANA denies paragraph 42’s allegations.

43.

BANA states that paragraph 43’s allegations require no response because they

concern a hypothetical situation. To the extent a response is required, BANA denies paragraph
43’s allegations.
44.

BANA denies paragraph 44’s allegations, except admits that the Borrowers issued

a Notice of Borrowing on March 2, 2009, and respectfully refers the Court to the March 2 Notice
for its true and correct contents.

6

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45.

BANA denies paragraph 45’s allegations, except admits that $68,000,000.00 of

Revolving Loans was advanced to the Borrowers in February 2009, and respectfully refers to the
Court to the Notices of Borrowing for their true and correct contents.
46.

BANA states that paragraph 46’s allegations require no response because it is a

hypothetical and speculative. To the extent a response is required, BANA denies paragraph 46’s
allegations.
47.

Admitted.

48.

BANA denies paragraph 48’s allegations, except admits that at 5:30 p.m. Eastern

Time on March 2, 2009, BANA participated in a conference call with certain lenders.
49.

BANA denies paragraph 49’s allegations, except admits that at 8:00 a.m. Eastern

Time on March 3, 2009, BANA participated in a conference call with certain lenders.
50.

BANA denies paragraph 50’s allegations, except admits that BANA, as

Administrative Agent, sent the Borrowers a letter on March 3, 2009, and respectfully refers the
Court to the March 3, 2009 letter for its true and correct contents.
51.

BANA denies paragraph 51’s allegations and respectfully refers the Court to

BANA’s March 3, 2009 letter for its true and correct contents.
52.

BANA denies paragraph 52’s allegations, except admits that funds were returned

to certain lenders who funded in March 2009.
53.

BANA denies paragraph 53’s allegations and avers that the Court has already

determined in Amended MDL Order Number Eighteen that “‘fully drawn’ . . . unambiguously
means ‘fully funded’; and . . . the Delay Draw Term Loans had not been ‘fully drawn’ at the time
Fontainebleau submitted the March Notices of Borrowing.”

7

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54.

BANA denies paragraph 54’s allegations, except admits that on March 3, 2009,

the Borrower sent a letter to BANA, as Administrative Agent, and respectfully refers the Court
to that letter for its true and correct contents.
55.

BANA denies paragraph 55’s allegations and respectfully refers the Court to the

Borrowers’ March 3, 2009 letter for its true and correct contents.
56.

BANA denies paragraph 56’s allegations, except admits that the Borrowers issued

a Notice of Borrowing on March 3, 2009, and respectfully refers the Court to the Notice for its
true and correct contents.
57.

BANA denies paragraph 57’s allegations, except admits that on March 4, 2009,

BANA, as Administrative Agent, posted a Borrowing Notice & Agency Communication on
Intralinks and respectfully refers the Court to that posting for its true and correct contents.
58.

BANA denies paragraph 58’s allegations and avers that the Court has already

determined in Amended MDL Order Number Eighteen that “‘fully drawn’ . . . unambiguously
means ‘fully funded’; and . . . the Delay Draw Term Loans had not been ‘fully drawn’ at the time
Fontainebleau submitted the March Notices of Borrowing.”
59.

BANA denies paragraph 59’s allegations, except admits that BANA, as

Administrative Agent, sent a March 23, 2009 letter, and respectfully refers the Court to that letter
for its true and correct contents.
60.

BANA denies paragraph 60’s allegations, except admits that on March 23, 2009,

BANA, as Administrative Agent and Disbursement Agent, sent a letter to Fontainebleau’s
lenders and respectfully refers the Court to that letter and the Disbursement Agreement for their
true and correct contents.
61.

BANA denies paragraph 61’s allegations.

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62.

BANA denies paragraph 62’s allegations.

63.

BANA denies paragraph 63’s allegations and avers that the Court has already

determined in Amended MDL Order Number Eighteen that “‘fully drawn’ . . . unambiguously
means ‘fully funded’; and . . . the Delay Draw Term Loans had not been ‘fully drawn’ at the time
Fontainebleau submitted the March Notices of Borrowing.”
64.

BANA denies paragraph 64’s allegations, except admits that on March 6, 2009,

the Borrowers sent a letter to BANA, as Administrative Agent, and respectfully refers the Court
to that letter for its true and correct contents.
65.

BANA denies paragraph 65’s allegations, except admits that on March 9, 2009,

the Borrower submitted a Notice of Borrowing and respectfully refers the Court to the Notice
and the attached letter for its true and correct contents.
66.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 66’s allegations, except admits that BANA, as Administrative Agent, posted the
March 9 Notice of Borrowing on Intralinks for the Delay Draw Lenders and that the Delay Draw
Loan Lenders funded approximately $337 million.
67.

BANA denies the allegations in paragraph 67’s first sentence, except admits that

the Revolving Lenders were repaid $68 million outstanding under the Revolver Facility and
respectfully refers the Court to the Credit Agreement for its true and correct contents. BANA
denies paragraph 67’s remaining allegations.
68.

BANA states that paragraph 68’s allegations contain legal conclusions as to

which no response is required. To the extent that a response is required, BANA denies
paragraph 68’s allegations.

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69.

BANA denies paragraph 69’s allegations, except admits that certain Term

Lenders sent BANA a letter on March 19, 2009, and respectfully refers the Court to that letter for
its true and correct contents.
70.

BANA denies paragraph 70’s allegations.

71.

BANA denies paragraph 71’s allegations, except admits that the Borrower

submitted Notice of Borrowing on April 21, 2009, and respectfully refers the Court to that letter
for its true and correct contents.
72.

Admitted.

73.

BANA denies paragraph 73’s allegations, except admits that BANA, as

Administrative Agent, sent a letter to the Borrower on April 20, 2009, and respectfully refers the
Court to that letter for its true and correct contents.
74.

BANA denies paragraph 74’s allegations.

75.

BANA denies paragraph 75’s allegations, except BANA admits that numerous

parties, including the Borrowers, the Initial Term Loan Lenders, the Delay Draw Loan Lenders
and the Revolving Lenders are parties to the Credit Agreement and respectfully refers the Court
to the Credit Agreement for its true and correct contents.
76.

BANA denies paragraph 76’s allegations, except states that whether the Initial

Term Loan Lenders and Delay Draw Loan Lenders had an interest in enforcing the Revolving
Lenders’ loan commitments is a legal conclusion as to which no response is necessary, denies
knowledge or information sufficient to form a belief as to what the Initial Term Loan Lenders
and Delay Draw Loan Lenders relied on and respectfully refers the Court to the Credit
Agreement for its true and correct contents.

10

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77.

BANA denies paragraph 77’s allegations, except denies knowledge or

information sufficient to form a belief as to the other lenders’ understanding or intent in entering
into the Credit Agreement and other loan documents and respectfully refers the Court to the
governing loan documents for their true and correct contents.
78.

BANA denies paragraph 78’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
79.

BANA denies paragraph 79’s allegations and respectfully refers the Court to the

Credit Agreement for its true and correct contents.
80.

BANA denies paragraph 80’s allegations, avers that the Court has already

determined in Amended MDL Order Number Eighteen that “[t]his promise . . . does not establish
a duty to Plaintiffs here or clearly evidence an intent to permit enforcement by Plaintiffs,”
(citation and internal quotation marks omitted) and respectfully refers the Court to the March 9
Notice for its true and correct contents.
81.

BANA denies paragraph 81’s allegations.

82.

BANA denies paragraph 82’s allegations.

83.

BANA denies paragraph 83’s allegations.

84.

BANA denies paragraph 84’s allegations, except admits that BANA was a

Revolving Lender and Administrative Agent under the Credit Agreement and Disbursement
Agent under the Disbursement Agreement, and respectfully refers the Court to the governing
loan agreements for their true and correct contents.
85.

BANA denies paragraph 85’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.

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86.

BANA denies the allegations in paragraph 86’s first and second sentences and

respectfully refers the Court to the governing loan agreements for their true and correct contents.
BANA denies paragraph 86’s remaining allegations.
87.

BANA denies paragraph 87’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
88.

BANA denies paragraph 88’s allegations, except avers that each Advance

Request submitted by the Borrower certified that the In Balance Test was satisfied and
respectfully refers the Court to the Advance Requests for their true and correct contents.
89.

BANA denies paragraph 89’s allegations, except admits that as of March 23,

2009, BANA did not issue a Stop Funding Notice and that BANA, as Administrative Agent and
Disbursement Agent, on March 23, 2009 sent a letter to Fontainebleau’s lenders and respectfully
refers the Court to that letter and BANA’s filings in Fontainebleau Las Vegas LLC v. Bank of
America, N.A., et al, No. 09-cv-21879-ASG for their true and correct contents.
90.

BANA denies paragraph 90’s allegations, except admits that on March 23, 2009,

the Borrowers submitted the March 25, 2009 Advance Request showing the In Balance Test to
be positive $13,785,184, and respectfully refers the Court to that Advance Request for its true
and correct contents.
91.

BANA denies paragraph 91’s allegations.

92.

BANA denies paragraph 92’s allegations and avers that the Court has already

determined in Amended MDL Order Number Eighteen that “‘fully drawn’ . . . unambiguously
means ‘fully funded’; and . . . the Delay Draw Term Loans had not been ‘fully drawn’ at the time
Fontainebleau submitted the March Notices of Borrowing.”

12

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93.

BANA denies paragraph 93’s allegations, avers that the Court has already

determined in Amended MDL Order Number Eighteen that “‘fully drawn’ . . . unambiguously
means ‘fully funded’; and . . . the Delay Draw Term Loans had not been ‘fully drawn’ at the time
Fontainebleau submitted the March Notices of Borrowing” and respectfully refers the Court to
the Disbursement Agreement for its true and correct content.
94.

BANA denies paragraph 94’s allegations, except admits that on March 23, 2009,

the Borrowers submitted the March 25, 2009 Advance Request and respectfully refers the Court
to that Advance Request and the Disbursement Agreement for their true and correct contents.
95.

BANA denies paragraph 95’s allegations.

96.

BANA denies the allegations in paragraph 96’s first and second sentence, except

admits that Lehman Brothers Holdings, Inc. was a Retail Lender and Retail Agent and
respectfully refers the Court to the governing loan agreements for their true and correct contents.
BANA denies paragraph 96’s remaining allegations.
97.

BANA admits that Lehman Brothers Holdings, Inc. filed for bankruptcy

protection on September 15, 2008.
98.

BANA denies the allegations in paragraph 98’s first sentence, except admits that

Lehman Brothers Holdings, Inc. was the arranger and a lender under the retail loan facility, and
filed for bankruptcy protection on September 15, 2008. BANA denies the allegations in
paragraph 98’s second sentence but avers that BANA was aware Lehman Brothers Holdings,
Inc. was in bankruptcy. BANA denies paragraph 98’s remaining allegations.
99.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 99’s allegations and respectfully refers the Court to the governing loan agreements
for their true and correct contents.

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100.

BANA denies paragraph 100’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
101.

BANA denies paragraph 101’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
102.

BANA denies paragraph 102’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
103.

BANA denies paragraph 103’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
104.

BANA denies knowledge or information sufficient to form a belief as to the truth

of paragraph 104’s allegations.
105.

BANA states that paragraph 105’s allegations contain legal conclusions as to

which no response is required. To the extent that a response is required, BANA denies
paragraph 105’s allegations.
106.

BANA states that paragraph 106’s allegations contain legal conclusions as to

which no response is required. To the extent that a response is required, BANA denies
paragraph 106’s allegations and respectfully refers the Court to the governing loan agreements
for their true and correct contents.
107.

BANA states that paragraph 107’s allegations contain legal conclusions as to

which no response is required. To the extent that a response is required, BANA denies
paragraph 107’s allegations and respectfully refers the Court to the governing loan agreements
for their true and correct contents.
108.

BANA states that paragraph 108’s allegations contain legal conclusions as to

which no response is required. To the extent that a response is required, BANA denies

14

Case 1:09-md-02106-ASG Document 158 Entered on FLSD Docket 10/12/2010 Page 15 of 23

paragraph 108’s allegations and respectfully refers the Court to the governing loan agreements
for their true and correct contents.
109.

BANA denies paragraph 109’s allegations.

110.

BANA denies paragraph 110’s allegations, except admits that BANA, as

Administrative Agent, sent a February 20, 2009 letter to the Borrower and respectfully refers the
Court to that letter for its true and correct contents.
111.

BANA denies paragraph 111’s allegations.

112.

BANA denies paragraph 112’s allegations, except admits that BANA, as

Administrative Agent and Disbursement Agent, sent the Borrower a letter on March 10, 2009,
and respectfully refers the Court to that letter for its true and correct contents.
113.

BANA denies paragraph 113’s allegations, except admits that on March 11, 2009,

Borrowers sent BANA a “Pre-Negotiation Agreement” and respectfully refers the Court to the
agreement for its true and correct contents.
114.

BANA denies paragraph 114’s allegations, except admits that the Borrower sent

BANA a letter on March 16, 2009, and respectfully refers the Court to that letter for its true and
correct contents.
115.

BANA denies paragraph 115’s allegations, except admits that BANA, as

Administrative Agent and Disbursement Agent, sent the Borrower a letter on March 16, 2009,
and respectfully refers the Court to that letter for its true and correct contents.
116.

BANA admits that on March 20, 2009, BANA, and others, met with the

Borrowers to discuss the Project and that Fontainebleau refused to answer questions about the
Project’s future operating prospects. BANA denies paragraph 116’s remaining allegations,

15

Case 1:09-md-02106-ASG Document 158 Entered on FLSD Docket 10/12/2010 Page 16 of 23

except admits that the Borrowers drafted an Interim Agreement and respectfully refers the Court
to the Interim Agreement for its true and correct content.
117.

BANA denies paragraph 117’s allegations, except admits that on March 23, 2009,

BANA, as Administrative Agent and Disbursement Agent, sent a letter to Fontainebleau’s
lenders and respectfully refers the Court to that letter for its true and correct contents.
118.

BANA denies the allegations in paragraph 118’s first sentence, except admits that

First National Bank of Nevada had made a commitment of $1,666,666.67 under the Delay Draw
and states that First National Bank of Nevada had made a commitment of $3,333,333.33 under
the Initial Term Loan. BANA denies knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 118’s second sentence, except admits that First National
Bank of Nevada was closed on or around July 25, 2008. BANA denies knowledge or
information sufficient to form a belief as to the truth of the allegations in paragraph 118’s third
sentence. BANA denies paragraph 118’s remaining allegations.
119.

BANA denies paragraph 119’s allegations and respectfully refers the Court to the

governing loan agreements for their true and correct contents.
120.

BANA states that paragraph 120 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 120’s
allegations.
121.

BANA states that paragraph 121 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 121’s
allegations and respectfully refers the Court to the governing loan agreements for their true and
correct contents.

16

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122.

BANA denies paragraph 122’s allegations and respectfully refers the Court to the

March 23, 2009 letter for its true and correct contents.
123.

BANA denies paragraph 123’s allegations.

124.

BANA denies paragraph 124’s allegations.

125.

BANA states that paragraph 125 calls for legal conclusions as to which no

response is required. To the extent a response is required, BANA denies paragraph 125’s
allegations, except admits that Mr. Yu was employed by BANA.
126.

BANA denies paragraph 126’s allegations.

127.

BANA denies paragraph 127’s allegations.

128.

BANA denies paragraph 128’s allegations.

129.

BANA denies paragraph 129’s allegations and respectfully refers the Court to

Defendants’ Opposition to Fontainebleau’s Motion for Partial Summary Judgment and an Order
Pursuant to 11 U.S.C. § 542 Directing 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 for its true and correct contents.
130.

BANA denies paragraph 130’s allegations.

131.

BANA denies paragraph 131’s allegations.
FIRST CLAIM FOR RELIEF
Breach of the Credit Agreement Against All Defendants
For Failure to Fund the March 2 Notice/March 3 Notice

132-138.

BANA states that no response is required to the allegations in paragraphs

132 through 138 because the Court has dismissed Count I by Amended MDL Order Number
Eighteen.

17

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SECOND CLAIM FOR RELIEF
Breach of the Credit Agreement Against All Defendants
For Failure to Fund the April 21 Notice
139-145.

BANA states that no response is required to the allegations in paragraphs

139 through 145 because the Court has dismissed Count II by Amended MDL Order Number
Eighteen.
THIRD CLAIM FOR RELIEF
Breach of the Disbursement Agreement Against BofA
146.

BANA repeats and incorporates by reference all the answers set forth in

paragraphs 1 through 145 as if fully set forth herein.
147.

BANA states that paragraph 147 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 147’s
allegations, except admits that BANA acted as Bank Agent and Disbursement Agent under the
Disbursement Agreement and respectfully refers the Court to the Disbursement Agreement for
its true and correct contents.
148.

BANA states that paragraph 148 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 148’s
allegations.
149.

BANA states that paragraph 149 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 149’s
allegations and respectfully refers the Court to the Credit Agreement and Disbursement
Agreement for their true and correct contents.
150.

BANA states that paragraph 150 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 150’s

18

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allegations and respectfully refers the Court to the Disbursement Agreement for its true and
correct contents.
151.

BANA denies paragraph 151’s allegations.

152.

BANA states that paragraph 152 contains legal conclusions as to which no

response is required. To the extent that a response is required, BANA denies paragraph 152’s
allegations.
153.

BANA denies paragraph 153’s allegations.
DEFENSES
First Defense

The Aurelius Complaint fails to state a claim upon which relief can be granted.
Second Defense
The Aurelius Plaintiffs’ claims against BANA are barred, in whole or in part, by the
doctrines of laches, waiver, and/or acquiescence.
Third Defense
The Aurelius Plaintiffs’ claims against BANA are barred or limited, in whole or in part,
by their failure to mitigate, minimize, or avoid their alleged damages.
Fourth Defense
The Aurelius Plaintiffs’ claims against BANA are barred, in whole or in part, by the
doctrine of equitable estoppel.
Fifth Defense
The Aurelius Plaintiffs’ claims against BANA are barred by the doctrine of unclean
hands.

19

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Sixth Defense
The Aurelius Plaintiffs’ claims against BANA are barred or limited, in whole or in part,
because their own acts and/or omissions caused or, in the alternative, contributed to their alleged
damages.
Seventh Defense
The Aurelius Plaintiffs’ claims may be barred or limited, in whole or in part, by the
doctrine of frustration of purpose.
Eighth Defense
To the extent that the Aurelius Plaintiffs failed to mitigate, minimize or avoid any loss or
damage referred to in the Aurelius Complaint, any recovery against BANA must be reduced by
that amount.
Ninth Defense
The Aurelius Complaint does not describe the claims made against BANA with sufficient
particularity to enable BANA to determine all defenses (including defenses based upon the terms
of the Credit Agreement and/or Disbursement Agreement and related documents) it has to this
suit. BANA reserves the right to assert other defenses as discovery proceeds.

WHEREFORE, BANA respectfully requests that the Court enter an order:
1.

dismissing the Aurelius Plaintiffs’ claims with prejudice and entering judgment in

BANA’s favor;
2.

awarding BANA its reasonable attorney’s fees and costs of suit; and

20

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3.

awarding such other, different, or further relief as the Court may deem just and

proper.
Date: Miami, Florida
October 12, 2010
Respectfully submitted,
By: /s/ Craig V. Rasile
Craig V. Rasile
Florida Bar Number: 613691
HUNTON & WILLIAMS LLP
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
-andBradley J. Butwin (limited appearance)
Jonathan Rosenberg (limited appearance)
Daniel L. Cantor (limited appearance)
William J. Sushon (limited appearance)
O’MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT BANK
OF AMERICA, N.A.

21

Case 1:09-md-02106-ASG Document 158 Entered on FLSD Docket 10/12/2010 Page 22 of 23

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

Dated: October 12, 2010
By: /s/ Craig V. Rasile
Craig V. Rasile

46124.000911 EMF_US 29904032v4

Case 1:09-md-02106-ASG Document 158 Entered on FLSD Docket 10/12/2010 Page 23 of 23

SERVICE LIST
09-MD-02106

Sarah A. Harmon
Bailey Kennedy
8984 Spanish Ridge Ave
Las Vegas NV 89148

Scott Louis Baena
Jeffrey L. Snyder
Bilzin Sumberg Baena Price & Axelrod
200 S Biscayne Blvd. Ste 2500
Miami, FL 33131

Lorenz M. Pruss
David A. Rothstein
Dimond Kaplan & Rothstein PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133

Alvin S. Goldstein
Furr & Cohen
2255 Glades Road, Ste 337-W
One Boca Place
Boca Raton, FL 33431

Mark D. Bloom
John B. Hutton, III
Greenberg Traurig
1221 Brickell Ave
Miami, FL 33131

Brett Michael Amron
Bast Amron LLP
150 W. Flagler St., Penthouse 2850
Miami, FL 33130

Jean-Marie L. Atamian
Jason I. Kirschner, Frederick Hyman
Mayer-Brown LLP
1675 Broadway
New York, NY 10019

Bruce Bennett, Kirk Dilman
J. Michael Hennigan, Sidney P. Levinson
Hennigan Bennett & Dorman LP
865 S Figueroa St., Ste 2900
Los Angeles, CA 90017

Peter J. Most, Laren A. Smith
Michael C. Schneidereit
Hennigan Bennett & Dorman LP
865 S Figueroa St., Ste 2900
Los Angeles, CA 90017

Jed I. Bergman, David M. Friedman
Marc E. Kasowitz, Seth A. Moskowitz
Kasowitz Benson Torres & Friedman
LLP
1633 Broadway
New York NY 10019

Arthur Linker, Kenneth E. Noble
Anthony L. Paccione
Katten Muchin Rosenman LLP
575 Madison Ave.
New York, NY 10022

Aaron Rubenstein, Philip A. Geraci
Andrew A Kress, W. Stewart Wallace
Kaye Scholer LLP
425 Park Ave, 12th Floor
New York NY 10022

Laury M. Macauley
Lewis and Roca LLP
50 West Liberty Street
Reno NV 89501

Michael R. Huttonlocker
Bruce Judson Berman
McDermott Well & Emery LLP
201 S. Biscayne Blvd., Ste 2200
Miami, FL 33131

John D. Byars,
Vincent S. J. Buccola
Bartlet Beck Herman Palenchar &
Scott
54 W Hubbard St. Ste 300
Chicago, IL 60654

Marc R. Rosen
David Parker
Kleinberg, Kaplan Wolf & Cohen
551 Fifth Ave., 18th Floor
New York, Ny 10176

Nicholas J. Santoro
Santoro, Driggs, Walch
Kearney Johnson & Thompson
400 S 4th St., Third Floor
Las Vegas, NV 89101

Daniel L. Cantor
Bradley J. Butwin, William J. Sushon
O’Melveny & Myers LLP
Times Square Tower, 7 Times Square
New York NY 10036

Arthur H. Rice
Rice Pugatch Robinson & Schiller
101 NE 3 Avenue, Ste 1800
Fort Lauderdale, FL 33301

Peter J. Roberts
Shaw Gussis Fishman Glantz Wolfson &
Towbin LLC
321 N. Clark Street, Suite 800
Chicago, IL 60654

Robert G. Fracasso, Jr.
Shutts & Bowen
201 S. Biscayne Blvd. Ste 1500
Miami, FL 33131

Thomas C. Rice, Lisa Rubin
David Woll
Simpson Thacher & Bartlett LLP
425 Lexington Ave
New York Ny 10017-3954

Harold D. Moorefield Jr
Stearns Weaver Miller
Alhadeff & Sitterson
150 W. Flagler St., Ste 2200
Miami, FL 33130

Aaron R. Maurice
Woods Erickson Whitaker &
Maurice LLP
1349 Galleria Drive, Ste 200
Henderson, NV 89014

Harley E. Riedel, Esq.
Stichter Riedel, Blain & Prosser, P.A.
110 East Madison Street, Ste 200
Tampa, FL 33602-4700

Gregory S. Grossman, Esq.
Astigarraga Davis Mullins & Grossman
701 Brickell Avenue, 16th Flr
Miami, FL 33131-2847

Soneet R. Kapila, Chapter 7 Trustee
Kapila & Company
1000 S. Federal Highway, Ste 200
Fort Lauderdale, FL 33316

46124.000911 EMF_US 29905061v1