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 1 Entered on FLSD Docket 12/03/2009 Page 1 of 2

By April Layne on Dec 02, 2009

Dec 02, 2009

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
Fontainebleau Las Vegas LLC v. Bank of America, N.A., et al.,
S.D. Florida, C.A. No. 1:09-21879
Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al.,
D. Nevada, C.A. No. 2:09-1047

)
)
)
)

MDL No. 2106

TRANSFER ORDER

Before the entire Panel*: Plaintiffs in an action pending in the District of Nevada have
moved, pursuant to 28 U.S.C. § 1407, for centralization, in the Southern District of New York,1 of
their action and an action pending in the Southern District of Florida.2
Ten defendants3 in the District of Nevada action submitted a brief supporting centralization,
but arguing that the Panel should select the Southern District of Florida as transferee district.
Plaintiffs in the potential tag-along action pending in the Southern District of New York submitted
a brief supporting centralization in that district.
On the basis of the papers filed and hearing session held, we find that these two actions
involve common questions of fact, and that centralization under Section 1407 in the Southern
*

Judges Heyburn, Vratil, and Trager took no part in the disposition of this matter.

1

These plaintiffs initially sought centralization in the Southern District of Florida, but later
changed their position to advocate selection of the Southern District of New York.
There was another Section 1407 motion in this docket, which was brought by defendants and
third-party plaintiffs in Deutsche Bank Trust Co. Americas v. Jeffrey Soffer, et al., S.D. New York,
C.A. No. 1:09-7089. That motion became moot, however, when the Southern District of New York
court remanded the action to state court just prior to the Panel’s hearing session.
2

One additional related action is currently pending in the Southern District of New York. That
action and any other related actions are potential tag-along actions. See Rules 7.4 and 7.5,
R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).
3

Bank of America, N.A.; Merrill Lynch Capital Corp.; JPMorgan Chase Bank, N.A.; Barclays
Bank PLC; Deutsche Bank Trust Co. Americas; the Royal Bank of Scotland PLC; Sumitomo Mitsui
Banking Corp.; Bank of Scotland; HSH Nordbank AG; and MB Financial Bank, N.A.

Case 1:09-md-02106-ASG Document 1 Entered on FLSD Docket 12/03/2009 Page 2 of 2

-2District of Florida will serve the convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation. Both actions involve alleged breaches by various lenders of their
commitments to provide financing for the Fontainebleau Las Vegas, a $3.1 billion resort casino
project under construction on the Las Vegas Strip. Centralization under Section 1407 will eliminate
duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties,
their counsel and the judiciary.
We further find that the Southern District of Florida is an appropriate transferee district for
pretrial proceedings in this litigation. The action pending in that district is the more advanced of the
two actions, and a related bankruptcy proceeding involving the developer of the Fontainebleau Las
Vegas project is also pending there.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the District of Nevada
action is transferred to the Southern District of Florida, and, with the consent of that court, assigned
to the Honorable Alan S. Gold for coordinated or consolidated pretrial proceedings with the action
pending in that district.

PANEL ON MULTIDISTRICT LITIGATION

Robert L. Miller, Jr.
Acting Chairman
John G. Heyburn II, Chairman*
David R. Hansen
Frank C. Damrell, Jr.

Kathryn H. Vratil*
W. Royal Furgeson, Jr.
David G. Trager*

Printed on 12/02/2009

Case 1:09-md-02106-ASG Document 1-1 Entered on FLSD Docket 12/03/2009 Page 1 of 3

Judicial Panel on Multidistrict Litigation - Panel Service List
for
MDL 2106 - IN RE: Fontainebleau Las Vegas Contract Litigation

*** Report Key and Title Page ***

Please Note: This report is in alphabetical order by the last name of the attorney. A party may not be
represented by more then one attorney. See Panel rule 5.2(c).

Party Representation Key
* Signifies that an appearance was made on behalf of the party by the representing attorney.
# Specified party was dismissed in some, but not all, of the actions in which it was named as a party.
All counsel and parties no longer active in this litigation have been suppressed.
This Report is Based on the Following Data Filters
Docket: 2106 - Fontainebleau Las Vegas CONT
For Open Cases

JudicialCase on Multidistrict Litigation - Panel Service List Entered on FLSD Docket 12/03/2009 Page 2 of Page 1
Panel 1:09-md-02106-ASG Document 1-1
3
Docket: 2106 - IN RE: Fontainebleau Las Vegas Contract Litigation
Status: Transferred on 12/02/2009
Transferee District: FLS
Judge: Gold, Alan S.
ATTORNEY - FIRM
Atamian, Jean-Marie L.

Printed on 12/02/2009

REPRESENTED PARTY(S)

=> Phone: [phone]

Fax: [phone] Email: [e-mail]
Sumitomo Mitsui Banking Corp.*

MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820

Bergman, Jed I.

=> Phone: [phone]

Fax: [phone] Email: [e-mail]
Fontainebleau Las Vegas LLC*

KASOWITZ BENSON TORRES & FRIEDMAN LLP
1633 Broadway
New York, NY 10019

Camulos Master Fund,
c/o Mr. Michael Iuliano

=>
Camulos Master Fund, L.P.

Camulos Capital LP
3 Landmark Square, 4th Floor
Stamford, CT 06901

Cantor, Daniel L.
O'MELVENY & MYERS LLP

=> Phone: [phone]

Fax: [phone] Email: [e-mail]
Bank of America, N.A.*; Merrill Lynch Capital Corp.*

Times Square Tower
7 Times Square
New York, NY 10036

Most, Peter J.

=> Phone: [phone]

HENNIGAN BENNETT & DORMAN LLP

Fax: [phone] Email: [e-mail]
1888 Find, Ltd.*; Aberdeen Loan Funding, Ltd.*; Ares Enhanced Loan Investment Strategy III,

865 South Figueroa Street

Ltd.*; Armstrong Loan Funding, Ltd.*; Avenue CLO Fund, Ltd.*; Avenue CLO II, Ltd.*; Avenue

Suite 2900

CLO III, Ltd.*; Avenue CLO IV, Ltd.*; Avenue CLO V, Ltd.*; Avenue CLO VI, Ltd.*; Battalion

Los Angeles, CA 90017

CLO 2007-I Ltd.*; Brentwood CLO, Ltd.*; Brigade Leveraged Capital Structures Fund, Ltd.*;
Canpartners Investments IV, LLC*; Canyon Capital Advisors, LLC*; Canyon Special Opportunities
Master Fund (Cayman), Ltd.*; Carlyle High Yield Partners 2008-1, Ltd.*; Carlyle High Yield
Partners IX, Ltd.*; Carlyle High Yield Partners VI, Ltd.*; Carlyle High Yield Partners VII, Ltd.*;
Carlyle High Yield Partners VIII, Ltd.*; Carlyle High Yield Partners X, Ltd.*; Carlyle Loan
Investment, Ltd.*; Caspian Capital Partners, L.P.*; Caspian Corporate Loan Fund, LLC*; Caspian
Select Credit Master Fund, Ltd.*; Cent CDO 10 Ltd.*; Cent CDO 12 Ltd.*; Cent CDO 14 Ltd.*;
Cent CDO 15 Ltd.*; Cent CDO XI Ltd.*; Centurion CDO 8, Ltd.*; Centurion CDO 9, Ltd.*;
Centurion CDO VI, Ltd.*; Centurion CDO VII, Ltd.*; Copper River CLO Ltd.*; Debello Investors
LLC*; Duane Street CLO 1, Ltd.*; Duane Street CLO II, Ltd.*; Duane Street CLO III, Ltd.*; Duane
Street CLO IV, Ltd.*; Duane Street CLO V, Ltd.*; Eastland CLO, Ltd.*; Emerald Orchard Ltd.*;
Encore Fund LP*; Fortissimo Fund*; Genesis CLO 2007-1 Ltd.*; Gleneagles CLO, Ltd.*; Grayson
CLO, Ltd.*; Green Lane CLO Ltd.*; Greenbriar CLO, Ltd.*; Highland Credit Opportunities CDO,
Ltd.*; Highland Loan Funding V, Ltd.*; Highland Offshore Partners, L.P.*; ING International (II)
Senior Bank Loans USD*; ING International (II)-Senior Bank Loans Euro*; 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 Prime Rate Trust*; ING Senior Income Fund*; Jasper CLO, Ltd.*;
Jay Street Market Value CLO I, Ltd.*; Kennecott Funding Ltd.*; LFC2 Loan Funding LLC*;
Liberty CLO, Ltd.*; Loan Funding IV LLC*; Loan Funding VII LLC*; Loan Star State Trust*;
Longhorn Credit Funding, LLC*; Mariner LDC*; Mariner Opportunities Fund, LP*; Nuveen
Floating Rate Income Fund*; Nuveen Floating Rate Income Opportunity Fund*; Nuveen Senior
Income Fund*; NZC Opportunities (Funding) II Ltd.*; Orpheus Funding LLC*; Orpheus Holdings,
LLC*; Primus CLO I, Ltd.*; Primus CLO II, Ltd.*; Red River CLO, Ltd.*; Riva Ridge Master
Fund, Ltd.*; Rockwall CDO II Ltd.*; Rockwall CDO Ltd.*; Sands Point Funding Ltd.*; Southfork
CLO, Ltd.*; Stratford CLO, Ltd.*; Symphony CLO I, Ltd.*; Symphony CLO II, Ltd.*; Symphony

Note: Please refer to the report title page for complete report scope and key.

(Panel Attorney Service List for MDL 2,106 Continued)

Case 1:09-md-02106-ASG Document 1-1 Entered on FLSD Docket 12/03/2009 Page 3 of Page 2
3

ATTORNEY - FIRM

REPRESENTED PARTY(S)
CLO III, Ltd.*; Symphony CLO IV, Ltd.*; Symphony CLO V, Ltd.*; Symphony Credit Opportunity
Fund, Ltd.*; Veer Cash Flow CLO, Ltd.*; Venture II CDO 2002, Ltd.*; Venture III CDO Ltd.*;
Venture IV CDO Ltd.*; Venture IX CDO Ltd.*; Venture V CDO Ltd.*; Venture VI CDO Ltd.*;
Venture VII CDO Ltd.*; Venture VIII CDO Ltd.*; Vista Leveraged Income Fund*; Westchester
CLO, Ltd.*; Wexford Spectrum Investors LLC*

Paccione, Anthony L.
KITSON KITSON & BISTESTO LLP

=> Phone: [phone]

Fax: [phone] Email: [e-mail]

Bank of Scotland*

50 Main Street
9th Floor
White Plains, NY 10606

Rice, Thomas C.

=> Phone: [phone]

SIMPSON THACHER & BARTLETT LLP

Fax: [phone] Email: [e-mail]
Barclays Bank PLC*; Deutsche Bank Trust Co. of Americas*; JP Morgan Chase Bank, N.A.*;

425 Lexington Avenue

Royal Bank of Scotland, PLC*

New York, NY 10017-3954

Roberts, Peter J.
SHAW GUSSIS FISHMAN GLANTZ WOLFSON & TOWBIN

=> Phone: [phone]

Fax: [phone] Email: [e-mail]
MB Financial Bank, N.A.*

LLC
321 North Clark Street
Suite 800
Chicago, IL 60654

Rubinstein, Aaron
KAYE SCHOLER LLP

=> Phone: [phone]

Fax: [phone] Email: [e-mail]
HSH Nordbank AG, New York Branch*

425 Park Avenue
12th Floor
New York, NY 10022

Note: Please refer to the report title page for complete report scope and key.

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 1 of 16
JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
FILED
April 2, 2001
MICHAEL J. BECK
CLERK OF THE PANEL
Effective
November
2,
1998,
With
Amendments
Effective
June 1, 2000, & April 2, 2001

RULES OF PROCEDURE
OF THE
JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
TABLE OF CONTENTS
I. GENERAL RULES/RULES FOR MULTIDISTRICT LITIGATION
UNDER 28 U.S.C. §1407
Rule 1.1:
Rule 1.2:
Rule 1.3:
Rule 1.4:
Rule 1.5:
Rule 1.6:
Rule 5.1:
Rule 5.11:
Rule 5.12:
Rule 5.13:
Rule 5.2:
Rule 5.3:
Rule 6.2:
Rule 7.1:
Rule 7.2:
Rule 7.3:
Rule 7.4:
Rule 7.5:
Rule 7.6:
Rule 16.1:

Definitions
Practice
Failure to Comply with Rules
Admission to Practice Before the Panel and Representation in Transferred Actions
Effect of the Pendency of an Action Before the Panel
Transfer of Files
Keeping Records and Files
Place of Filing of Papers
Manner of Filing Papers
Filing of Papers: Computer Generated Disk Required
Service of Papers Filed
Corporate Disclosure Statement
Applications for Extensions of Time
Form of Papers Filed
Motion Practice
Show Cause Orders
Conditional Transfer Orders for “Tag-Along Actions”
Miscellaneous Provisions Concerning “Tag-Along Actions”
Termination and Remand
Hearing Sessions and Oral Argument
II. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW
UNDER 28 U.S.C. §2112(a)(3)

Rule 17.1:
Rule 25.1:
Rule 25.2:
Rule 25.3:
Rule 25.4:
Rule 25.5:

Random Selection
Filing of Notices
Accompaniments to Notices
Service of Notices
Form of Notices
Service of Panel Consolidation Order
CONVERSION TABLE

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 2 of 16
-2-

RULES OF PROCEDURE
OF THE
JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
I. GENERAL RULES/RULES FOR MULTIDISTRICT LITIGATION
UNDER 28 U.S.C. §1407
RULE 1.1:

DEFINITIONS

As used in these Rules “Panel” means the members of the Judicial Panel on Multidistrict Litigation
appointed by the Chief Justice of the United States pursuant to Section 1407, Title 28, United States Code.
“Clerk of the Panel” means the official appointed by the Panel to act as Clerk of the Panel and shall
include those deputized by the Clerk of the Panel to perform or assist in the performance of the duties of the
Clerk of the Panel.
“Chairman” means the Chairman of the Judicial Panel on Multidistrict Litigation appointed by the Chief
Justice of the United States pursuant to Section 1407, or the member of the Panel designated by the Panel to
act as Chairman in the absence or inability of the appointed Chairman.
A “tag-along action” refers to a civil action pending in a district court and involving common questions
of fact with actions previously transferred under Section 1407.
RULE 1.2:

PRACTICE

Where not fixed by statute or rule, the practice shall be that heretofore customarily followed by the
Panel.
RULE 1.3:

FAILURE TO COMPLY WITH RULES

The Clerk of the Panel may, when a paper submitted for filing is not in compliance with the provisions
of these Rules, advise counsel of the deficiencies and a date for full compliance. If full compliance is not
accomplished within the established time, the non-complying paper shall nonetheless be filed by the Clerk of the
Panel but it may be stricken by order of the Chairman of the Panel.
RULE 1.4:

ADMISSION TO PRACTICE BEFORE THE PANEL AND REPRESENTATION IN
TRANSFERRED ACTIONS

Every member in good standing of the Bar of any district court of the United States is entitled without
condition to practice before the Judicial Panel on Multidistrict Litigation. Any attorney of record in any action

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 3 of 16
-3transferred under Section 1407 may continue to represent his or her client in any district court of the United
States to which such action is transferred. Parties to any action transferred under Section 1407 are not required
to obtain local counsel in the district to which such action is transferred.
RULE 1.5:

EFFECT OF THE PENDENCY OF AN ACTION BEFORE THE PANEL

The pendency of a motion, order to show cause, conditional transfer order or conditional remand order
before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C. §1407 does not affect or
suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any
way limit the pretrial jurisdiction of that court. A transfer or remand pursuant to 28 U.S.C. §1407 shall be
effective when the transfer or remand order is filed in the office of the clerk of the district court of the transferee
district.
RULE 1.6:

TRANSFER OF FILES

(a)
Upon receipt of a certified copy of a transfer order from the clerk of the transferee district court,
the clerk of the transferor district court shall forward to the clerk of the transferee district court the complete
original file and a certified copy of the docket sheet for each transferred action.
(b)
If an appeal is pending, or a notice of appeal has been filed, or leave to appeal has been sought
under 28 U.S.C. §1292(b) or a petition for an extraordinary writ is pending, in any action included in an order
of transfer under 28 U.S.C. §1407, and the original file or parts thereof have been forwarded to the court of
appeals, the clerk of the transferor district court shall notify the clerk of the court of appeals of the order of
transfer and secure the original file long enough to prepare and transmit to the clerk of the transferee district court
a certified copy of all papers contained in the original file and a certified copy of the docket sheet.
(c)
If the transfer order provides for the separation and simultaneous remand of any claim, crossclaim, counterclaim, or third-party claim, the clerk of the transferor district court shall retain the original file and
shall prepare and transmit to the clerk of the transferee district court a certified copy of the docket sheet and
copies of all papers except those relating exclusively to separated and remanded claims.
(d)
Upon receipt of an order to remand fromthe Clerk of the Panel, the transferee district court shall
prepare and send to the clerk of the transferor district court the following:
(i)
a certified copy of the individual docket sheet for each action being remanded;
(ii)
a certified copy of the master docket sheet, if applicable;
(iii)
the entire file for each action being remanded, as originally received from the transferor
district court and augmented as set out in this rule;
(iv)
a certified copy of the final pretrial order, if applicable; and
(v)
a “record on remand” to be composed of those parts of the files and records produced
during coordinated or consolidated pretrial proceedings which have been stipulated to
or designated by counsel as being necessary for any or all proceedings to be conducted
following remand. It shall be the responsibility of counsel originally preparing or filing
any document to be included in the “record on remand” to furnish on request sufficient
copies to the clerk of the transferee district court.

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 4 of 16
-4(e)

The Clerk of the Panel shall be notified when any files have been transmitted pursuant to this

Rule.
RULE 5.1:

KEEPING RECORDS AND FILES

(a)
The records and files of the Panel shall be kept by the Clerk of the Panel at the offices of the
Panel. Records and files may be temporarily or permanently removed to such places at such times as the Panel
or the Chairman of the Panel shall direct. The Clerk of the Panel may charge fees, as prescribed by the Judicial
Conference of the United States, for duplicating records and files. Records and files may be transferred
whenever appropriate to the Federal Records Center.
(b)
In order to assist the Panel in carrying out its functions, the Clerk of the Panel shall obtain the
complaints and docket sheets in all actions under consideration for transfer under 28 U.S.C. §1407 from the
clerk of each district court wherein such actions are pending. The Clerk of the Panel shall similarly obtain any
other pleadings and orders that could affect the Panel's decision under 28 U.S.C. §1407.
RULE 5.11:

PLACE OF FILING OF PAPERS

All papers for consideration by the Panel shall be submitted for filing to the Clerk of the Panel by mailing
or delivering to:
Clerk of the Panel
Judicial Panel on Multidistrict Litigation
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room G-255, North Lobby
Washington, D.C. 20002-8004
No papers shall be left with or mailed to a Judge of the Panel.
RULE 5.12:

MANNER OF FILING OF PAPERS

(a)
An original of the following papers shall be submitted for filing to the Clerk of the Panel: a proof
of service pursuant to Rule 5.2(a) and (b) of these Rules, a notice of appearance pursuant to Rule 5.2(c) and
(d) of these Rules, a corporate disclosure statement pursuant to Rule 5.3 of these Rules, a status notice pursuant
to Rules 7.2(f), 7.3(e) and 7.4(b) of these Rules, a notice of opposition pursuant to Rules 7.4(c) and 7.6(f)(ii)
of these Rules, a notice of related action pursuant to Rules 7.2(i), 7.3(a) and 7.5(e) of these Rules, an application
for extension of time pursuant to Rule 6.2 of these Rules, or a notice of presentation or waiver of oral argument
pursuant to Rule 16.1(d) of these Rules. An original and eleven copies of all other papers shall be submitted
for filing to the Clerk of the Panel. The Clerk of the Panel may require that additional copies also be submitted
for filing.
(b)
filing.

When papers are submitted for filing, the Clerk of the Panel shall endorse thereon the date for

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 5 of 16
-5(c)
Copies of motions for transfer of an action or actions pursuant to 28 U.S.C. §1407 shall be filed
in each district court in which an action is pending that will be affected by the motion. Copies of a motion for
remand pursuant to 28 U.S.C. §1407 shall be filed in the Section 1407 transferee district court in which any
action affected by the motion is pending.
(d)
Papers requiring only an original may be faxed to the Panel office with prior approval of the
Clerk of the Panel. No papers requiring multiple copies shall be accepted via fax.
RULE 5.13:

FILING OF PAPERS: COMPUTER GENERATED DISK REQUIRED

(a)
Whenever an original paper and eleven copies is required to be submitted for filing to the Clerk
of the Panel pursuant to Rule 5.12(a) of these Rules, and where a party is represented by counsel, one copy of
that paper must also be submitted on a computer readable disk and shall be filed at the time the party’s paper
is filed. The disk shall contain the entire paper exclusive of computer non-generated exhibits. The label of the
disk shall include i) “MDL #_ ,” ii) an abbreviated version of the MDL descriptive title, or other appropriate
descriptive title, if not yet designated by the Panel, iii) the identity of the type of paper being filed (i.e. motion,
response, reply, etc.), iv) the name of the counsel who signed the paper, and v) the first named represented party
on the paper.
(b)

The paper must be on a 3 ½ inch disk in WordPerfect for Windows format.

(c)
One copy of the disk may be served on each party separately represented by counsel. If a
party chooses to serve a copy of the disk, the proof of service, as required by Rule 5.2 of these Rules, must
indicate service of the paper in both paper and electronic format.
(d)
A party may be relieved from the requirements of this Rule by submitting a written application
for a waiver, in a timely manner in advance of submission of the paper, certifying that compliance with the Rule
would impose undue hardship, that the text of the paper is not available on disk, or that other unusual
circumstances preclude compliance with this Rule. The requirements of this Rule shall not apply to parties
appearing pro se. Papers embraced by this Rule and submitted by counsel after June 1, 2000 without a
computer disk copy or Panel-approved waiver of the requirements of this Rule shall be governed by Rule 1.3
of these Rules.
RULE 5.2:

SERVICE OF PAPERS FILED

(a)
All papers filed with the Clerk of the Panel shall be accompanied by proof of previous or
simultaneous service on all other parties in all actions involved in the litigation. Service and proof of service shall
be made as provided in Rules 5 and 6 of the Federal Rules of Civil Procedure. The proof of service shall
indicate the name and complete address of each person served and shall indicate the party represented by each.
If a party is not represented by counsel, the proof of service shall indicate the name of the party and the party's
last known address. The proof of service shall indicate why any person named as a party in a constituent
complaint was not served with the Section 1407 pleading. The original proof of service shall be filed with the
Clerk of the Panel and copies thereof shall be sent to each person included within the proof of service. After
the “Panel Service List” described in subsection (d) of this Rule has been received from the Clerk of the Panel,
the “Panel Service List” shall be utilized for service of responses to motions and all other filings. In such

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-6instances, the “Panel Service List” shall be attached to the proof of service and shall be supplemented in the
proof of service in the event of the presence of additional parties or subsequent corrections relating to any party,
counsel or address already on the “Panel Service List.”
(b)
The proof of service pertaining to motions for transfer of actions pursuant to 28 U.S.C. §1407
shall certify that copies of the motions have been mailed or otherwise delivered for filing to the clerk of each
district court in which an action is pending that will be affected by the motion. The proof of service pertaining
to a motion for remand pursuant to 28 U.S.C. §1407 shall certify that a copy of the motion has been mailed or
otherwise delivered for filing to the clerk of the Section 1407 transferee district court in which any action affected
by the motion is pending.
(c)
Within eleven days of filing of a motion to transfer, an order to show cause or a conditional
transfer order, each party or designated attorney shall notify the Clerk of the Panel, in writing, of the name and
address of the attorney designated to receive service of all pleadings, notices, orders and other papers relating
to practice before the Judicial Panel on Multidistrict Litigation. Only one attorney shall be designated for each
party. Any party not represented by counsel shall be served by mailing such pleadings to the party's last known
address. Requests for an extension of time to file the designation of attorney shall not be granted except in
extraordinary circumstances.
(d)
In order to facilitate compliance with subsection (a) of this Rule, the Clerk of the Panel shall
prepare and serve on all counsel and parties not represented by counsel, a “Panel Service List” containing the
names and addresses of the designated attorneys and the party or parties they represent in the actions under
consideration by the Panel and the names and addresses of the parties not represented by counsel in the actions
under consideration by the Panel. After the “Panel Service List” has been received from the Clerk of the Panel,
notice of subsequent corrections relating to any party, counsel or address on the “Panel Service List” shall be
served on all other parties in all actions involved in the litigation.
(e)
If following transfer of any group of multidistrict litigation, the transferee district court appoints
liaison counsel, this Rule shall be satisfied by serving each party in each affected action and all liaison counsel.
Liaison counsel designated by the transferee district court shall receive copies of all Panel orders concerning their
particular litigation and shall be responsible for distribution to the parties for whom he or she serves as liaison
counsel.
RULE 5.3:

CORPORATE DISCLOSURE STATEMENT

(a)
Any nongovernmental corporate party to a matter before the Panel shall file a statement
identifying all its parent corporations and listing any publicly held company that owns 10% or more of the party’s
stock.
(b)
A party shall file the corporate disclosure statement within eleven days of the filing of a motion
to transfer or remand, an order to show cause, or a motion to vacate a conditional transfer order or a conditional
remand order.

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-7(c)
Once a corporate disclosure statement by a party has been filed in an MDL docket pursuant to
subsection (b) of this Rule, such a party is required to update the statement to reflect any change in the
information therein i) until the matter before the Panel is decided, and ii) within eleven days of the filing of any
subsequent motion to transfer or remand, order to show cause, or motion to vacate a conditional transfer order
or a conditional remand order in that docket.
RULE 6.2:

APPLICATIONS FOR EXTENSIONS OF TIME

Any application for an extension of time to file a pleading or perform an act required by these Rules must
be in writing, must request a specific number of additional days and may be acted upon by the Clerk of the
Panel. Such an application will be evaluated in relation to the impact on the Panel's calendar as well as on the
basis of the reasons set forth in support of the application. Any party aggrieved by the Clerk of the Panel's
action on such application may submit its objections to the Panel for consideration. Absent exceptional
circumstances, no extensions of time shall be granted to file a notice of opposition to either a conditional transfer
order or a conditional remand order. All applications for extensions of time shall be filed and served in
conformity with Rules 5.12, 5.2 and 7.1 of these Rules.
RULE 7.1:

FORM OF PAPERS FILED

(a)
Averments in any motion seeking action by the Panel shall be made in numbered paragraphs,
each of which shall be limited, as far as practicable, to a statement of a single factual averment.
(b)
Responses to averments in motions shall be made in numbered paragraphs, each of which shall
correspond to the number of the paragraph of the motion to which the responsive paragraph is directed. Each
responsive paragraph shall admit or deny wholly or in part the averment of the motion, and shall contain the
respondent's version of the subject matter when the averment or the motion is not wholly admitted.
(c)

Each pleading filed shall be:
(i)
flat and unfolded;
(ii)
plainly written, typed in double space, printed or prepared by means of a duplicating
process, without erasures or interlineations which materially deface it;
(iii)
on opaque, unglazed, white paper (not onionskin);
(iv)
approximately 8-1/2 x 11 inches in size; and
(v)
fastened at the top-left corner without side binding or front or back covers.

(d)
The heading on the first page of each pleading shall commence not less than three inches from
the top of the page. Each pleading shall bear the heading “Before the Judicial Panel on Multidistrict Litigation,”
the identification “MDL Docket No.___” and the descriptive title designated by the Panel for the litigation
involved. If the Panel has not yet designated a title, an appropriate descriptive title shall be used.
(e)
The final page of each pleading shall contain the name, address and telephone number of the
attorney or party in active charge of the case. Each attorney shall also include the name of each party
represented.

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-8(f)
Except with the approval of the Panel, each brief submitted for filing with the Panel shall be
limited to twenty pages, exclusive of exhibits. Absent exceptional circumstances, motions to exceed page limits
shall not be granted.
(g)
Exhibits exceeding a cumulative total of 50 pages shall be fastened separately from the
accompanying pleading.
(h)
RULE 7.2:

Proposed Panel orders shall not be submitted with papers for filing.
MOTION PRACTICE

(a)
All requests for action by the Panel under 28 U.S.C. §1407 shall be made by written motion.
Every motion shall be accompanied by:
(i)
a brief in support thereof in which the background of the litigation and factual and legal
contentions of the movant shall be concisely stated in separate portions of the brief with
citation of applicable authorities; and
(ii)
a schedule giving
(A)
the complete name of each action involved, listing the full name of each party
included as such on the district court’s docket sheet, not shortened by the use
of references such as “et al.” or “etc.”;
(B)
the district court and division in which each action is pending;
(C)
the civil action number of each action; and
(D)
the name of the judge assigned each action, if known.
(b)
The Clerk of the Panel shall notify recipients of a motion of the filing date, caption, MDL docket
number, briefing schedule and pertinent Panel policies.
(c)
Within twenty days after filing of a motion, all other parties shall file a response thereto. Failure
of a party to respond to a motion shall be treated as that party's acquiescence to the action requested in the
motion.
(d)
The movant may, within five days after the lapse of the time period for filing responsive briefs,
file a single brief in reply to any opposition.
(e)
Motions, their accompaniments, responses, and replies shall also be governed by Rules 5.12,
5.2 and 7.1 of these Rules.
(f)
With respect to any action that is the subject of Panel consideration, counsel shall promptly notify
the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel.
(g)

A joinder in a motion shall not add any action to the previous motion.

(h)
Once a motion is filed, any other pleading that purports to be a “motion” in the docket shall be
filed by the Clerk of the Panel as a response unless the “motion” adds an action. The Clerk of the Panel, upon

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 9 of 16
-9designating such a pleading as a motion, shall acknowledge that designation by the distribution of a briefing
schedule to all parties in the docket. Response time resulting from an additional motion shall ordinarily be
extended only to those parties directly affected by the additional motion. An accelerated briefing schedule for
the additional motion may be set by the Clerk of the Panel to conform with the hearing session schedule
established by the Chairman.
(i)
Any party or counsel in a new group of actions under consideration by the Panel for transfer
under Section 1407 shall promptly notify the Clerk of the Panel of any potential tag-along action in which that
party is also named or in which that counsel appears.
RULE 7.3:

SHOW CAUSE ORDERS

(a)
When transfer of multidistrict litigation is being considered on the initiative of the Panel pursuant
to 28 U.S.C. §1407(c)(i), an order shall be filed by the Clerk of the Panel directing the parties to show cause
why the action or actions should not be transferred for coordinated or consolidated pretrial proceedings. Any
party or counsel in such actions shall promptly notify the Clerk of the Panel of any other federal district court
actions related to the litigation encompassed by the show cause order. Such notification shall be made for
additional actions pending at the time of the issuance of the show cause order and whenever new actions are
filed.
(b)
Any party may file a response to the show cause order within twenty days of the filing of said
order unless otherwise provided for in the order. Failure of a party to respond to a show cause order shall be
treated as that party's acquiescence to the Panel action contemplated in the order.
(c)
Within five days after the lapse of the time period for filing a response, any party may file a reply
limited to new matters.
(d)
these Rules.

Responses and replies shall be filed and served in conformity with Rules 5.12, 5.2 and 7.1 of

(e)
With respect to any action that is the subject of Panel consideration, counsel shall promptly notify
the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel.
RULE 7.4:

CONDITIONAL TRANSFER ORDERS FOR “TAG-ALONG ACTIONS”

(a)
Upon learning of the pendency of a potential “tag-along action,” as defined in Rule 1.1 of these
Rules, an order may be entered by the Clerk of the Panel transferring that action to the previously designated
transferee district court on the basis of the prior hearing session(s) and for the reasons expressed in previous
opinions and orders of the Panel in the litigation. The Clerk of the Panel shall serve this order on each party to
the litigation but, in order to afford all parties the opportunity to oppose transfer, shall not send the order to the
clerk of the transferee district court for fifteen days from the entry thereof.
(b)
Parties to an action subject to a conditional transfer order shall notify the Clerk of the Panel
within the fifteen-day period if that action is no longer pending in its transferor district court.

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- 10 (c)
Any party opposing the transfer shall file a notice of opposition with the Clerk of the Panel within
the fifteen-day period. If a notice of opposition is received by the Clerk of the Panel within this fifteen-day
period, the Clerk of the Panel shall not transmit said order to the clerk of the transferee district court until further
order of the Panel. The Clerk of the Panel shall notify the parties of the briefing schedule.
(d)
Within fifteen days of the filing of its notice of opposition, the party opposing transfer shall file
a motion to vacate the conditional transfer order and brief in support thereof. The Chairman of the Panel shall
set the motion for the next appropriate hearing session of the Panel. Failure to file and serve a motion and brief
shall be treated as withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the order to
the clerk of the transferee district court.
(e)
Conditional transfer orders do not become effective unless and until they are filed with the clerk
of the transferee district court.
(f)
Notices of opposition and motions to vacate such orders of the Panel and responses thereto shall
be governed by Rules 5.12, 5.2, 7.1 and 7.2 of these Rules.

RULE 7.5:

MISCELLANEOUS PROVISIONS CONCERNING “TAG-ALONG ACTIONS”

(a)
Potential “tag-along actions” filed in the transferee district require no action on the part of the
Panel and requests for assignment of such actions to the Section 1407 transferee judge should be made in
accordance with local rules for the assignment of related actions.
(b)
Upon learning of the pendency of a potential “tag-along action” and having reasonable
anticipation of opposition to transfer of that action, the Panel may direct the Clerk of the Panel to file a show
cause order, in accordance with Rule 7.3 of these Rules, instead of a conditional transfer order.
(c)
Failure to serve one or more of the defendants in a potential “tag-along action” with the
complaint and summons as required by Rule 4 of the Federal Rules of Civil Procedure does not preclude transfer
of such action under Section 1407. Such failure, however, may be submitted by such a defendant as a basis
for opposing the proposed transfer if prejudice can be shown. The inability of the Clerk of the Panel to serve
a conditional transfer order on all plaintiffs or defendants or their counsel shall not render the transfer of the
action void but can be submitted by such a party as a basis for moving to remand as to such party if prejudice
can be shown.
(d)
A civil action apparently involving common questions of fact with actions under consideration
by the Panel for transfer under Section 1407, which was either not included in a motion under Rule 7.2 of these
Rules, or was included in such a motion that was filed too late to be included in the initial hearing session, will
ordinarily be treated by the Panel as a potential “tag-along action.”
(e)
Any party or counsel in actions previously transferred under Section 1407 or under
consideration by the Panel for transfer under Section 1407 shall promptly notify the Clerk of the Panel of any
potential “tag-along actions” in which that party is also named or in which that counsel appears.

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- 11 -

RULE 7.6:

TERMINATION AND REMAND

In the absence of unusual circumstances—
(a)
Actions terminated in the transferee district court by valid judgment, including but not limited to
summary judgment, judgment of dismissal and judgment upon stipulation, shall not be remanded by the Panel
and shall be dismissed by the transferee district court. The clerk of the transferee district court shall send a copy
of the order terminating the action to the Clerk of the Panel but shall retain the original files and records unless
otherwise directed by the transferee judge or by the Panel.
(b)
Each action transferred only for coordinated or consolidated pretrial proceedings that has not
been terminated in the transferee district court shall be remanded by the Panel to the transferor district for trial.
Actions that were originally filed in the transferee district require no action by the Panel to be reassigned to
another judge in the transferee district at the conclusion of the coordinated or consolidated pretrial proceedings
affecting those actions.
(c)
The Panel shall consider remand of each transferred action or any separable claim, cross-claim,
counterclaim or third-party claim at or before the conclusionof coordinated or consolidated pretrial proceedings
on
(i)
motion of any party,
(ii)
suggestion of the transferee district court, or
(iii)
the Panel's own initiative, by entry of an order to show cause, a conditional remand
order or other appropriate order.
(d)
The Panel is reluctant to order remand absent a suggestion of remand from the transferee district
court. If remand is sought by motion of a party, the motion shall be accompanied by:
(i)
an affidavit reciting
(A)
whether the movant has requested a suggestion of remand from the transferee
district court, how the court responded to any request, and, if no such request
was made, why;
(B)
whether all common discovery and other pretrial proceedings have been
completed in the action sought to be remanded, and if not, what remains to be
done; and
(C)
whether all orders of the transferee district court have been satisfactorily
complied with, and if not, what remains to be done; and
(ii)
a copy of the transferee district court's final pretrial order, where such order has been
entered.
Motions to remand and responses thereto shall be governed by Rules 5.12, 5.2, 7.1 and 7.2
of these Rules.
(e)
When an order to show cause why an action or actions should not be remanded is entered
pursuant to subsection (c), paragraph (iii) of this Rule, any party may file a response within twenty days of the

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 12 of 16
- 12 filing of said order unless otherwise provided for in the order. Within five days of filing of a party's response,
any party may file a reply brief limited to new matters. Failure of a party to respond to a show cause order
regarding remand shall be treated as that party's acquiescence to the remand. Responses and replies shall be
filed and served in conformity with Rules 5.12, 5.2 and 7.1 of these Rules.
(f)

Conditional Remand Orders
(i)
When the Panel has been advised by the transferee district judge, or otherwise has
reason to believe, that pretrial proceedings in the litigation assigned to the transferee
district judge are concluded or that remand of an action or actions is otherwise
appropriate, an order may be entered by the Clerk of the Panel remanding the action
or actions to the transferor district court. The Clerk of the Panel shall serve this order
on each party to the litigation but, in order to afford all parties the opportunity to oppose
remand, shall not send the order to the clerk of the transferee district court for fifteen
days from the entry thereof.
(ii)
Any party opposing the remand shall file a notice of opposition with the Clerk of the
Panel within the fifteen-day period. If a notice of opposition is received by the Clerk
of the Panel within this fifteen-day period, the Clerk of the Panel shall not transmit said
order to the clerk of the transferee district court until further order of the Panel. The
Clerk of the Panel shall notify the parties of the briefing schedule.
(iii)
Within fifteen days of the filing of its notice of opposition, the party opposing remand
shall file a motion to vacate the conditional remand order and brief in support thereof.
The Chairman of the Panel shall set the motion for the next appropriate hearing session
of the Panel. Failure to file and serve a motion and brief shall be treated as a
withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the
order to the clerk of the transferee district court.
(iv)
Conditional remand orders do not become effective unless and until they are filed with
the clerk of the transferee district court.
(v)
Notices of opposition and motions to vacate such orders of the Panel and responses
thereto shall be governed by Rules 5.12, 5.2, 7.1 and 7.2 of these Rules.

(g)
Upon receipt of an order to remand from the Clerk of the Panel, the parties shall furnish
forthwith to the transferee district clerk a stipulation or designation of the contents of the record or part thereof
to be remanded and furnish the transferee district clerk all necessary copies of any pleading or other matter filed
so as to enable the transferee district clerk to comply with the order of remand.
RULE 16.1:

HEARING SESSIONS AND ORAL ARGUMENT

(a)
Hearing sessions of the Panel for the presentation of oral argument and consideration of matters
taken under submission without oral argument shall be held as ordered by the Panel. The Panel shall convene
whenever and wherever desirable or necessary in the judgment of the Chairman. The Chairman shall determine
which matters shall be considered at each hearing session and the Clerk of the Panel shall give notice to counsel
for all parties involved in the litigation to be so considered of the time, place and subject matter of such hearing
session.

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- 13 (b)
Each party filing a motion or a response to a motion or order of the Panel under Rules 7.2, 7.3,
7.4 or 7.6 of these Rules may file simultaneously therewith a separate statement limited to one page setting forth
reasons why oral argument should, or need not, be heard. Such statements shall be captioned “Reasons Why
Oral Argument Should [Need Not] Be Heard,” and shall be filed and served in conformity with Rules 5.12 and
5.2 of these Rules.
(c)
No transfer or remand determination regarding any action pending in the district court shall be
made by the Panel when any party timely opposes such transfer or remand unless a hearing session has been
held for the presentation of oral argument except that the Panel may dispense with oral argument if it determines
that:
(i) the dispositive issue(s) have been authoritatively decided; or
(ii) the facts and legal arguments are adequately presented in the briefs and record,
and the decisional process would not be significantly aided by oral argument.
Unless otherwise ordered by the Panel, all other matters before the Panel, such as a motion for reconsideration,
shall be considered and determined upon the basis of the papers filed.
(d)
In those matters in which oral argument is not scheduled by the Panel, counsel shall be promptly
advised. If oral argument is scheduled in a matter the Clerk of the Panel may require counsel for all parties who
wish to make or to waive oral argument to file and serve notice to that effect within a stated time in conformity
with Rules 5.12 and 5.2 of these Rules. Failure to do so shall be deemed a waiver of oral argument by that
party. If oral argument is scheduled but not attended by a party, the matter shall not be rescheduled and that
party’s position shall be treated as submitted for decision by the Panel on the basis of the papers filed.
(e)
Except for leave of the Panel on a showing of good cause, only those parties to actions
scheduled for oral argument who have filed a motion or written response to a motion or order shall be permitted
to appear before the Panel and present oral argument.
(f)
Counsel for those supporting transfer or remand under Section 1407 and counsel for those
opposing such transfer or remand are to confer separately prior to the oral argument for the purpose of
organizing their arguments and selecting representatives to present all views without duplication.
(g)
Unless otherwise ordered by the Panel, a maximum of twenty minutes shall be allotted for oral
argument in each matter. The time shall be divided equally among those with varying viewpoints. Counsel for
the moving party or parties shall generally be heard first.
(h)
So far as practicable and consistent with the purposes of Section 1407, the offering of oral
testimony before the Panel shall be avoided. Accordingly, oral testimony shall not be received except upon
notice, motion and order of the Panel expressly providing for it.
(i)
After an action or group of actions has been set for a hearing session, consideration of such
action(s) may be continued only by order of the Panel on good cause shown.

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 14 of 16
- 14 -

II. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW
UNDER 28 U.S.C. §2112(a)(3)
RULE 17.1:

RANDOM SELECTION

(a)
Upon filing a notice of multicircuit petitions for review, the Clerk of the Panel or designated
deputy shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein
a constituent petition for review is pending. Multiple petitions for review pending in a single circuit shall be
allotted only a single entry in the drum. This random selection shall be witnessed by the Clerk of the Panel or
a designated deputy other than the random selector. Thereafter, an order on behalf of the Panel shall be issued,
signed by the random selector and the witness,
(i)
consolidating the petitions for review in the court of appeals for the circuit
that was randomly selected; and
(ii)
designating that circuit as the one in which the record is to be filed
pursuant to Rules 16 and 17 of the Federal Rules of Appellate Procedure.
(b)
A consolidation of petitions for review shall be effective when the Panel's consolidation order
is filed at the offices of the Panel by the Clerk of the Panel.
RULE 25.1:

FILING OF NOTICES

(a)
An original of a notice of multicircuit petitions for review pursuant to 28 U.S.C. §2112(a)(3)
shall be submitted for filing to the Clerk of the Panel by the affected agency, board, commission or officer. The
term “agency” as used in Section II of these Rules shall include agency, board, commission or officer.
(b)
All notices of multicircuit petitions for review submitted by the affected agency for filing with the
Clerk of the Panel shall embrace exclusively petitions for review filed in the courts of appeals within ten days
after issuance of an agency order and received by the affected agency from the petitioners within that ten-day
period.
(c)
When a notice of multicircuit petitions for review is submitted for filing to the Clerk of the Panel,
the Clerk of the Panel shall file the notice and endorse thereon the date of filing.
(d)
Copies of notices of multicircuit petitions for review shall be filed by the affected agency with
the clerk of each circuit court of appeals in which a petition for review is pending that is included in the notice.
RULE 25.2:
(a)

ACCOMPANIMENTS TO NOTICES
All notices of multicircuit petitions for review shall be accompanied by:
(i)
a copy of each involved petition for review as the petition for review is defined in 28
U.S.C. §2112(a)(2); and
(ii)
a schedule giving
(A)
the date of the relevant agency order;
(B)
the case name of each petition for review involved;

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 15 of 16
- 15 (C)
(D)
(E)
(F)

the circuit court of appeals in which each petition for review is pending;
the appellate docket number of each petition for review;
the date of filing by the court of appeals of each petition for review; and
the date of receipt by the agency of each petition for review.

(b)
The schedule in Subsection (a)(ii) of this Rule shall also be governed by Rules 25.1, 25.3 and
25.4(a) of these Rules.
RULE 25.3:

SERVICE OF NOTICES

(a)
All notices of multicircuit petitions for review shall be accompanied by proof of service by the
affected agency on all other parties in all petitions for review included in the notice. Service and proof of service
shall be made as provided in Rule 25 of the Federal Rules of Appellate Procedure. The proof of service shall
state the name and address of each person served and shall indicate the party represented by each. If a party
is not represented by counsel, the proof of service shall indicate the name of the party and his or her last known
address. The original proof of service shall be submitted by the affected agency for filing with the Clerk of the
Panel and copies thereof shall be sent by the affected agency to each person included within the proof of service.
(b)
The proof of service pertaining to notices of multicircuit petitions for review shall certify that
copies of the notices have been mailed or otherwise delivered by the affected agency for filing to the clerk of
each circuit court of appeals in which a petition for review is pending that is included in the notice.
RULE 25.4:
(a)

FORM OF NOTICES
Each notice of multicircuit petitions for review shall be
(i)
flat and unfolded;
(ii)
plainly written, typed in double space, printed or prepared by means of a duplicating
process, without erasures or interlineations which materially deface it;
(iii)
on opaque, unglazed white paper (not onionskin);
(iv)
approximately 8-1/2 x 11 inches in size; and
(v)
fastened at the top-left corner without side binding or front or back covers.

(b)
The heading on the first page of each notice of multicircuit petitions for review shall commence
not less that three inches from the top of the page. Each notice shall bear the heading Notice to the Judicial
Panel on Multidistrict Litigation of Multicircuit Petitions for Review,” followed by a brief caption identifying the
involved agency, the relevant agency order, and the date of the order.
(c)
The final page of each notice of multicircuit petitions for review shall contain the name, address
and telephone number of the individual or individuals who submitted the notice on behalf of the agency.

Case 1:09-md-02106-ASG Document 2 Entered on FLSD Docket 12/03/2009 Page 16 of 16
- 16 -

RULE 25.5:

SERVICE OF PANEL CONSOLIDATION ORDER

(a)
The Clerk of the Panel shall serve the Panel's consolidation order on the affected agency through
the individual or individuals, as identified in Rule 25.4(c) of these Rules, who submitted the notice of multicircuit
petitions for review on behalf of the agency.
(b)
That individual or individuals, or anyone else designated by the agency, shall promptly serve the
Panel's consolidation order on all other parties in all petitions for review included in the Panel's consolidation
order, and shall promptly submit a proof of that service to the Clerk of the Panel. Service and proof of that
service shall also be governed by Rule 25.3 of these Rules.
(c)
The Clerk of the Panel shall serve the Panel's consolidation order on the clerks of all circuit
courts of appeals that were among the candidates for the Panel's random selection.
*

*

*

*

*

CONVERSION TABLE
Renumbered Rule/Previous Rule
1.1
1.2
1.3
1.4
1.5
1.6
5.1
5.11
5.12
5.13
5.2
5.3
6.2

1
5
4
6
18
19
2
3
7
–
8
–
15

Renumbered Rule/Previous Rule
7.1
7.2
7.3
7.4
7.5
7.6
16.1
17.1
25.1
25.2
25.3
25.4
25.5

9
10
11
12
13
14
16, 16.2 & 17
24
20
21
22
23
25

Case 1:09-md-02106-ASG Document 4 Entered on FLSD Docket 12/04/2009 Page 1 of 17
UNITED STATED JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
FILED
DECEMBER 1, 2009
JEFFERY N. LÜTHI
CLERK OF THE PANEL

RULES OF PROCEDURE
OF THE
JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
TABLE OF CONTENTS
I. GENERAL RULES/RULES FOR MULTIDISTRICT LITIGATION
UNDER 28 U.S.C. §1407
Rule 1.1:
Rule 1.2:
Rule 1.3:
Rule 1.4:
Rule 1.5:
Rule 1.6:
Rule 5.1:
Rule 5.11:
Rule 5.12:
Rule 5.13:
Rule 5.2:
Rule 5.3:
Rule 6.2:
Rule 7.1:
Rule 7.2:
Rule 7.3:
Rule 7.4:
Rule 7.5:
Rule 7.6:
Rule 16.1:

Definitions
Practice
Failure to Comply with Rules
Admission to Practice Before the Panel and Representation in Transferred Actions
Effect of the Pendency of an Action Before the Panel
Transfer of Files
Keeping Records and Files
Place of Filing of Papers
Manner of Filing Papers
Filing of Papers: Computer Generated Disk Required
Service of Papers Filed
Corporate Disclosure Statement
Applications for Extensions of Time
Form of Papers Filed
Motion Practice
Show Cause Orders
Conditional Transfer Orders for "Tag-Along Actions"
Miscellaneous Provisions Concerning "Tag-Along Actions"
Termination and Remand
Hearing Sessions and Oral Argument
II. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW
UNDER 28 U.S.C. §2112(a)(3)

Rule 17.1:
Rule 25.1:
Rule 25.2:
Rule 25.3:
Rule 25.4:
Rule 25.5:

Random Selection
Filing of Notices
Accompaniments to Notices
Service of Notices
Form of Notices
Service of Panel Consolidation Order
III. CONVERSION TABLE

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RULES OF PROCEDURE
OF THE
JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
I. GENERAL RULES/RULES FOR MULTIDISTRICT LITIGATION
UNDER 28 U.S.C. §1407
RULE 1.1:

DEFINITIONS

As used in these Rules "Panel" means the members of the Judicial Panel on Multidistrict
Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, Title 28,
United States Code.
"Clerk of the Panel" means the official appointed by the Panel to act as Clerk of the Panel
and shall include those deputized by the Clerk of the Panel to perform or assist in the performance
of the duties of the Clerk of the Panel.
"Chairman" means the Chairman of the Judicial Panel on Multidistrict Litigation appointed
by the Chief Justice of the United States pursuant to Section 1407, or the member of the Panel
designated by the Panel to act as Chairman in the absence or inability of the appointed Chairman.
A "tag-along action" refers to a civil action pending in a district court and involving common
questions of fact with actions previously transferred under Section 1407.
RULE 1.2:

PRACTICE

Where not fixed by statute or rule, the practice shall be that heretofore customarily followed
by the Panel.
RULE 1.3:

FAILURE TO COMPLY WITH RULES

The Clerk of the Panel may, when a paper submitted for filing is not in compliance with the
provisions of these Rules, advise counsel of the deficiencies and a date for full compliance. If full
compliance is not accomplished within the established time, the non-complying paper shall
nonetheless be filed by the Clerk of the Panel but it may be stricken by order of the Chairman of the
Panel.
RULE 1.4:

ADMISSION TO PRACTICE BEFORE THE PANEL AND
REPRESENTATION IN TRANSFERRED ACTIONS

Every member in good standing of the Bar of any district court of the United States is
entitled without condition to practice before the Judicial Panel on Multidistrict Litigation. Any
attorney of record in any action transferred under Section 1407 may continue to represent his or her
client in any district court of the United States to which such action is transferred. Parties to any
action transferred under Section 1407 are not required to obtain local counsel in the district to which
such action is transferred.
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RULE 1.5:

EFFECT OF THE PENDENCY OF AN ACTION BEFORE THE PANEL

The pendency of a motion, order to show cause, conditional transfer order or conditional
remand order before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C.
§1407 does not affect or suspend orders and pretrial proceedings in the district court in which the
action is pending and does not in any way limit the pretrial jurisdiction of that court. A transfer or
remand pursuant to 28 U.S.C. §1407 shall be effective when the transfer or remand order is filed in
the office of the clerk of the district court of the transferee district.
RULE 1.6:

TRANSFER OF FILES

(a)
Upon receipt of a certified copy of a transfer order from the clerk of the transferee
district court, the clerk of the transferor district court shall forward to the clerk of the transferee
district court the complete original file and a certified copy of the docket sheet for each transferred
action.
(b)
If an appeal is pending, or a notice of appeal has been filed, or leave to appeal has
been sought under 28 U.S.C. §1292(b) or a petition for an extraordinary writ is pending, in any
action included in an order of transfer under 28 U.S.C. §1407, and the original file or parts thereof
have been forwarded to the court of appeals, the clerk of the transferor district court shall notify the
clerk of the court of appeals of the order of transfer and secure the original file long enough to
prepare and transmit to the clerk of the transferee district court a certified copy of all papers
contained in the original file and a certified copy of the docket sheet.
(c)
If the transfer order provides for the separation and simultaneous remand of any
claim, cross-claim, counterclaim, or third-party claim, the clerk of the transferor district court shall
retain the original file and shall prepare and transmit to the clerk of the transferee district court a
certified copy of the docket sheet and copies of all papers except those relating exclusively to
separated and remanded claims.
(d)
Upon receipt of an order to remand from the Clerk of the Panel, the transferee district
court shall prepare and send to the clerk of the transferor district court the following:
(i)
a certified copy of the individual docket sheet for each action being
remanded;
(ii)
a certified copy of the master docket sheet, if applicable;
(iii) the entire file for each action being remanded, as originally received from the
transferor district court and augmented as set out in this rule;
(iv)
a certified copy of the final pretrial order, if applicable; and
(v)
a "record on remand" to be composed of those parts of the files and records
produced during coordinated or consolidated pretrial proceedings which have
been stipulated to or designated by counsel as being necessary for any or all
proceedings to be conducted following remand. It shall be the responsibility
of counsel originally preparing or filing any document to be included in the
"record on remand" to furnish on request sufficient copies to the clerk of the
transferee district court.
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(e)
The Clerk of the Panel shall be notified when any files have been transmitted
pursuant to this Rule.
RULE 5.1:

KEEPING RECORDS AND FILES

(a)
The records and files of the Panel shall be kept by the Clerk of the Panel at the offices
of the Panel. Records and files may be temporarily or permanently removed to such places at such
times as the Panel or the Chairman of the Panel shall direct. The Clerk of the Panel may charge fees,
as prescribed by the Judicial Conference of the United States, for duplicating records and files.
Records and files may be transferred whenever appropriate to the Federal Records Center.
(b)
In order to assist the Panel in carrying out its functions, the Clerk of the Panel shall
obtain the complaints and docket sheets in all actions under consideration for transfer under 28
U.S.C. §1407 from the clerk of each district court wherein such actions are pending. The Clerk of
the Panel shall similarly obtain any other pleadings and orders that could affect the Panel’s decision
under 28 U.S.C. §1407.
RULE 5.11:

PLACE OF FILING OF PAPERS

All papers for consideration by the Panel shall be submitted for filing to the Clerk of the
Panel by mailing or delivering to:
Clerk of the Panel
Judicial Panel on Multidistrict Litigation
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room G-255, North Lobby
Washington, D.C. 20002-8004
No papers shall be left with or mailed to a Judge of the Panel.
RULE 5.12:

MANNER OF FILING OF PAPERS

(a)
An original of the following papers shall be submitted for filing to the Clerk of the
Panel: a proof of service pursuant to Rule 5.2(a) and (b) of these Rules, a notice of appearance
pursuant to Rule 5.2(c) and (d) of these Rules, a corporate disclosure statement pursuant to Rule 5.3
of these Rules, a status notice pursuant to Rules 7.2(f), 7.3(e) and 7.4(b) of these Rules, a notice of
opposition pursuant to Rules 7.4(c) and 7.6(f)(ii) of these Rules, a notice of related action pursuant
to Rules 7.2(i), 7.3(a) and 7.5(e) of these Rules, an application for extension of time pursuant to Rule
6.2 of these Rules, or a notice of presentation or waiver of oral argument pursuant to Rule 16.1(d)
of these Rules. An original and eleven four copies of all other papers shall be submitted for filing
to the Clerk of the Panel. The Clerk of the Panel may require that additional copies also be
submitted for filing.
(b)
When papers are submitted for filing, the Clerk of the Panel shall endorse thereon the
date for filing.
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(c)
Copies of motions for transfer of an action or actions pursuant to 28 U.S.C. §1407
shall be filed in each district court in which an action is pending that will be affected by the motion.
Copies of a motion for remand pursuant to 28 U.S.C. §1407 shall be filed in the Section 1407
transferee district court in which any action affected by the motion is pending.
(d)
Papers requiring only an original may be faxed to the Panel office with prior approval
of the Clerk of the Panel. No papers requiring multiple copies shall be accepted via fax.
RULE 5.13:

FILING OF PAPERS: COMPUTER GENERATED DISK REQUIRED

(a)
Whenever an original paper and eleven four copies is required to be submitted for
filing to the Clerk of the Panel pursuant to Rule 5.12(a) of these Rules, and where a party is
represented by counsel, one copy of that paper must also be submitted on a computer readable disk
and shall be filed at the time the party’s paper is filed. The disk shall contain the entire paper
exclusive of computer non-generated exhibits. The label of the disk shall include i) “MDL #_ ,”
ii) an abbreviated version of the MDL descriptive title, or other appropriate descriptive title, if not
yet designated by the Panel, iii) the identity of the type of paper being filed (i.e. motion, response,
reply, etc.), iv) the name of the counsel who signed the paper, and v) the first named represented
party on the paper.
(b)

The paper must be on a 3 ½ inch disk in WordPerfect for Windows Adobe Acrobat
(PDF) format.

(c)
One copy of the disk may be served on each party separately represented by
counsel. If a party chooses to serve a copy of the disk, the proof of service, as required by Rule 5.2
of these Rules, must indicate service of the paper in both paper and electronic format.
(d)
A party may be relieved from the requirements of this Rule by submitting a written
application for a waiver, in a timely manner in advance of submission of the paper, certifying that
compliance with the Rule would impose undue hardship, that the text of the paper is not available
on disk, or that other unusual circumstances preclude compliance with this Rule. The requirements
of this Rule shall not apply to parties appearing pro se. Papers embraced by this Rule and submitted
by counsel after June 1, 2000 without a computer disk copy or Panel-approved waiver of the
requirements of this Rule shall be governed by Rule 1.3 of these Rules.
RULE 5.2:

SERVICE OF PAPERS FILED

(a)
All papers filed with the Clerk of the Panel shall be accompanied by proof of
previous or simultaneous service on all other parties in all actions involved in the litigation. Service
and proof of service shall be made as provided in Rules 5 and 6 of the Federal Rules of Civil
Procedure. The proof of service shall indicate the name and complete address of each person served
and shall indicate the party represented by each. If a party is not represented by counsel, the proof
of service shall indicate the name of the party and the party’s last known address. The proof of
service shall indicate why any person named as a party in a constituent complaint was not served
with the Section 1407 pleading. The original proof of service shall be filed with the Clerk of the
Panel and copies thereof shall be sent to each person included within the proof of service. After the
"Panel Service List" described in subsection (d) of this Rule has been received from the Clerk of the
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Panel, the "Panel Service List" shall be utilized for service of responses to motions and all other
filings. In such instances, the "Panel Service List" shall be attached to the proof of service and shall
be supplemented in the proof of service in the event of the presence of additional parties or
subsequent corrections relating to any party, counsel or address already on the “Panel Service List.”
(b)
The proof of service pertaining to motions for transfer of actions pursuant to 28
U.S.C. §1407 shall certify that copies of the motions have been mailed or otherwise delivered for
filing to the clerk of each district court in which an action is pending that will be affected by the
motion. The proof of service pertaining to a motion for remand pursuant to 28 U.S.C. §1407 shall
certify that a copy of the motion has been mailed or otherwise delivered for filing to the clerk of the
Section 1407 transferee district court in which any action affected by the motion is pending.
(c)
Within eleven fourteen days of filing of a motion to transfer, an order to show cause
or a conditional transfer order, each party or designated attorney shall notify the Clerk of the Panel,
in writing, of the name and address of the attorney designated to receive service of all pleadings,
notices, orders and other papers relating to practice before the Judicial Panel on Multidistrict
Litigation. Only one attorney shall be designated for each party. Any party not represented by
counsel shall be served by mailing such pleadings to the party’s last known address. Requests for
an extension of time to file the designation of attorney shall not be granted except in extraordinary
circumstances.
(d)
In order to facilitate compliance with subsection (a) of this Rule, the Clerk of the
Panel shall prepare and serve on all counsel and parties not represented by counsel, a "Panel Service
List" containing the names and addresses of the designated attorneys and the party or parties they
represent in the actions under consideration by the Panel and the names and addresses of the parties
not represented by counsel in the actions under consideration by the Panel. After the “Panel Service
List” has been received from the Clerk of the Panel, notice of subsequent corrections relating to any
party, counsel or address on the “Panel Service List” shall be served on all other parties in all actions
involved in the litigation.
(e)
If following transfer of any group of multidistrict litigation, the transferee district
court appoints liaison counsel, this Rule shall be satisfied by serving each party in each affected
action and all liaison counsel. Liaison counsel designated by the transferee district court shall
receive copies of all Panel orders concerning their particular litigation and shall be responsible for
distribution to the parties for whom he or she serves as liaison counsel.
RULE 5.3:

CORPORATE DISCLOSURE STATEMENT

(a)
Any nongovernmental corporate party to a matter before the Panel shall file a
statement identifying all its parent corporations and listing any publicly held company that owns
10% or more of the party’s stock.
(b)
A party shall file the corporate disclosure statement within eleven fourteen days of
the filing of a motion to transfer or remand, an order to show cause, or a motion to vacate a
conditional transfer order or a conditional remand order.
(c)
Once a corporate disclosure statement by a party has been filed in an MDL docket
pursuant to subsection (b) of this Rule, such a party is required to update the statement to reflect any
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change in the information therein i) until the matter before the Panel is decided, and ii) within
eleven fourteen days of the filing of any subsequent motion to transfer or remand, order to show
cause, or motion to vacate a conditional transfer order or a conditional remand order in that docket.
RULE 6.2:

APPLICATIONS FOR EXTENSIONS OF TIME

Any application for an extension of time to file a pleading or perform an act required by
these Rules must be in writing, must request a specific number of additional days and may be acted
upon by the Clerk of the Panel. Such an application will be evaluated in relation to the impact on
the Panel’s calendar as well as on the basis of the reasons set forth in support of the application.
Any party aggrieved by the Clerk of the Panel’s action on such application may submit its objections
to the Panel for consideration. Absent exceptional circumstances, no extensions of time shall be
granted to file a notice of opposition to either a conditional transfer order or a conditional remand
order. All applications for extensions of time shall be filed and served in conformity with Rules
5.12, 5.2 and 7.1 of these Rules.
RULE 7.1:

FORM OF PAPERS FILED

(a)
Averments in any motion seeking action by the Panel shall be made in numbered
paragraphs, each of which shall be limited, as far as practicable, to a statement of a single factual
averment.
(b)
Responses to averments in motions shall be made in numbered paragraphs, each of
which shall correspond to the number of the paragraph of the motion to which the responsive
paragraph is directed. Each responsive paragraph shall admit or deny wholly or in part the averment
of the motion, and shall contain the respondent’s version of the subject matter when the averment
or the motion is not wholly admitted.
(c)

Each pleading filed shall be:
(i)
flat and unfolded;
(ii)
plainly written, typed in double space, printed or prepared by means of a
duplicating process, without erasures or interlineations which materially
deface it;
(iii) on opaque, unglazed, white paper (not onionskin);
(iv)
approximately 8-1/2 x 11 inches in size; and
(v)
fastened at the top-left corner without side binding or front or back covers.

(d)
The heading on the first page of each pleading shall commence not less than three
inches from the top of the page. Each pleading shall bear the heading "Before the Judicial Panel on
Multidistrict Litigation," the identification "MDL Docket No.___" and the descriptive title
designated by the Panel for the litigation involved. If the Panel has not yet designated a title, an
appropriate descriptive title shall be used.
(e)
The final page of each pleading shall contain the name, address and telephone number
of the attorney or party in active charge of the case. Each attorney shall also include the name of
each party represented.
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(f)
Except with the approval of the Panel, each brief submitted for filing with the Panel
shall be limited to twenty pages, exclusive of exhibits. Absent exceptional circumstances, motions
to exceed page limits shall not be granted.
(g)
Exhibits exceeding a cumulative total of 50 pages shall be fastened separately from
the accompanying pleading.
(h)
RULE 7.2:

Proposed Panel orders shall not be submitted with papers for filing.
MOTION PRACTICE

(a)
All requests for action by the Panel under 28 U.S.C. §1407 shall be made by written
motion. Every motion shall be accompanied by:
(i)
a brief in support thereof in which the background of the litigation and
factual and legal contentions of the movant shall be concisely stated in
separate portions of the brief with citation of applicable authorities; and
(ii)
a schedule giving
(A)
the complete name of each action involved, listing the full name of
each party included as such on the district court’s docket sheet, not
shortened by the use of references such as "et al." or "etc.";
(B)
the district court and division in which each action is pending;
(C)
the civil action number of each action; and
(D)
the name of the judge assigned each action, if known.
(b)
The Clerk of the Panel shall notify recipients of a motion of the filing date, caption,
MDL docket number, briefing schedule and pertinent Panel policies.
(c)
Within twenty twenty-one days after filing of a motion, all other parties shall file a
response thereto. Failure of a party to respond to a motion shall be treated as that party’s
acquiescence to the action requested in the motion.
(d)
The movant may, within five seven days after the lapse of the time period for filing
responsive briefs, file a single brief in reply to any opposition.
(e)
Motions, their accompaniments, responses, and replies shall also be governed by
Rules 5.12, 5.2 and 7.1 of these Rules.
(f)
With respect to any action that is the subject of Panel consideration, counsel shall
promptly notify the Clerk of the Panel of any development that would partially or completely moot
the matter before the Panel.
(g)

A joinder in a motion shall not add any action to the previous motion.

(h)
Once a motion is filed, any other pleading that purports to be a "motion" in the docket
shall be filed by the Clerk of the Panel as a response unless the "motion" adds an action. The Clerk
of the Panel, upon designating such a pleading as a motion, shall acknowledge that designation by
the distribution of a briefing schedule to all parties in the docket. Response time resulting from an
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additional motion shall ordinarily be extended only to those parties directly affected by the
additional motion. An accelerated briefing schedule for the additional motion may be set by the
Clerk of the Panel to conform with the hearing session schedule established by the Chairman.
(i)
Any party or counsel in a new group of actions under consideration by the Panel for
transfer under Section 1407 shall promptly notify the Clerk of the Panel of any potential tag-along
action in which that party is also named or in which that counsel appears.
RULE 7.3:

SHOW CAUSE ORDERS

(a)
When transfer of multidistrict litigation is being considered on the initiative of the
Panel pursuant to 28 U.S.C. §1407(c)(i), an order shall be filed by the Clerk of the Panel directing
the parties to show cause why the action or actions should not be transferred for coordinated or
consolidated pretrial proceedings. Any party or counsel in such actions shall promptly notify the
Clerk of the Panel of any other federal district court actions related to the litigation encompassed by
the show cause order. Such notification shall be made for additional actions pending at the time of
the issuance of the show cause order and whenever new actions are filed.
(b)
Any party may file a response to the show cause order within twenty twenty-one
days of the filing of said order unless otherwise provided for in the order. Failure of a party to
respond to a show cause order shall be treated as that party’s acquiescence to the Panel action
contemplated in the order.
(c)
Within five seven days after the lapse of the time period for filing a response, any
party may file a reply limited to new matters.
(d)
Responses and replies shall be filed and served in conformity with Rules 5.12, 5.2
and 7.1 of these Rules.
(e)
With respect to any action that is the subject of Panel consideration, counsel shall
promptly notify the Clerk of the Panel of any development that would partially or completely moot
the matter before the Panel.
RULE 7.4:

CONDITIONAL TRANSFER ORDERS FOR "TAG-ALONG ACTIONS"

(a)
Upon learning of the pendency of a potential "tag-along action," as defined in Rule
1.1 of these Rules, an order may be entered by the Clerk of the Panel transferring that action to the
previously designated transferee district court on the basis of the prior hearing session(s) and for the
reasons expressed in previous opinions and orders of the Panel in the litigation. The Clerk of the
Panel shall serve this order on each party to the litigation but, in order to afford all parties the
opportunity to oppose transfer, shall not send the order to the clerk of the transferee district court
for fifteen fourteen days from the entry thereof.
(b)
Parties to an action subject to a conditional transfer order shall notify the Clerk of the
Panel within the fifteen fourteen-day period if that action is no longer pending in its transferor
district court.
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(c)
Any party opposing the transfer shall file a notice of opposition with the Clerk of the
Panel within the fifteen fourteen-day period. If a notice of opposition is received by the Clerk of
the Panel within this fifteen fourteen -day period, the Clerk of the Panel shall not transmit said order
to the clerk of the transferee district court until further order of the Panel. The Clerk of the Panel
shall notify the parties of the briefing schedule.
(d)
Within fifteen fourteen days of the filing of its notice of opposition, the party
opposing transfer shall file a motion to vacate the conditional transfer order and brief in support
thereof. The Chairman of the Panel shall set the motion for the next appropriate hearing session of
the Panel. Failure to file and serve a motion and brief shall be treated as withdrawal of the
opposition and the Clerk of the Panel shall forthwith transmit the order to the clerk of the transferee
district court.
(e)
Conditional transfer orders do not become effective unless and until they are filed
with the clerk of the transferee district court.
(f)
Notices of opposition and motions to vacate such orders of the Panel and responses
thereto shall be governed by Rules 5.12, 5.2, 7.1 and 7.2 of these Rules.
RULE 7.5:

MISCELLANEOUS PROVISIONS CONCERNING “TAG-ALONG ACTIONS”

(a)
Potential “tag-along actions” filed in the transferee district require no action on the
part of the Panel and requests for assignment of such actions to the Section 1407 transferee judge
should be made in accordance with local rules for the assignment of related actions.
(b)
Upon learning of the pendency of a potential “tag-along action” and having
reasonable anticipation of opposition to transfer of that action, the Panel may direct the Clerk of the
Panel to file a show cause order, in accordance with Rule 7.3 of these Rules, instead of a conditional
transfer order.
(c)
Failure to serve one or more of the defendants in a potential “tag-along action” with
the complaint and summons as required by Rule 4 of the Federal Rules of Civil Procedure does not
preclude transfer of such action under Section 1407. Such failure, however, may be submitted by
such a defendant as a basis for opposing the proposed transfer if prejudice can be shown. The
inability of the Clerk of the Panel to serve a conditional transfer order on all plaintiffs or defendants
or their counsel shall not render the transfer of the action void but can be submitted by such a party
as a basis for moving to remand as to such party if prejudice can be shown.
(d)
A civil action apparently involving common questions of fact with actions under
consideration by the Panel for transfer under Section 1407, which was either not included in a
motion under Rule 7.2 of these Rules, or was included in such a motion that was filed too late to be
included in the initial hearing session, will ordinarily be treated by the Panel as a potential “tagalong action.”
(e)
Any party or counsel in actions previously transferred under Section 1407 or under
consideration by the Panel for transfer under Section 1407 shall promptly notify the Clerk of the
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Panel of any potential “tag-along actions” in which that party is also named or in which that counsel
appears.
RULE 7.6:

TERMINATION AND REMAND

In the absence of unusual circumstances—
(a)
Actions terminated in the transferee district court by valid judgment, including but
not limited to summary judgment, judgment of dismissal and judgment upon stipulation, shall not
be remanded by the Panel and shall be dismissed by the transferee district court. The clerk of the
transferee district court shall send a copy of the order terminating the action to the Clerk of the Panel
but shall retain the original files and records unless otherwise directed by the transferee judge or by
the Panel.
(b)
Each action transferred only for coordinated or consolidated pretrial proceedings that
has not been terminated in the transferee district court shall be remanded by the Panel to the
transferor district for trial. Actions that were originally filed in the transferee district require no
action by the Panel to be reassigned to another judge in the transferee district at the conclusion of
the coordinated or consolidated pretrial proceedings affecting those actions.
(c)
The Panel shall consider remand of each transferred action or any separable claim,
cross-claim, counterclaim or third-party claim at or before the conclusion of coordinated or
consolidated pretrial proceedings on
(i)
motion of any party,
(ii)
suggestion of the transferee district court, or
(iii) the Panel’s own initiative, by entry of an order to show cause, a conditional
remand order or other appropriate order.
(d)
The Panel is reluctant to order remand absent a suggestion of remand from the
transferee district court. If remand is sought by motion of a party, the motion shall be accompanied
by:
(i)
an affidavit reciting
(A)
whether the movant has requested a suggestion of remand from the
transferee district court, how the court responded to any request, and,
if no such request was made, why;
(B)
whether all common discovery and other pretrial proceedings have
been completed in the action sought to be remanded, and if not, what
remains to be done; and
(C)
whether all orders of the transferee district court have been
satisfactorily complied with, and if not, what remains to be done; and
(ii)
a copy of the transferee district court’s final pretrial order, where such order
has been entered.
Motions to remand and responses thereto shall be governed by Rules 5.12, 5.2, 7.1
and 7.2 of these Rules.

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(e)
When an order to show cause why an action or actions should not be remanded is
entered pursuant to subsection (c), paragraph (iii) of this Rule, any party may file a response within
twenty twenty-one days of the filing of said order unless otherwise provided for in the order.
Within five seven days of filing of a party’s response, any party may file a reply brief limited to new
matters. Failure of a party to respond to a show cause order regarding remand shall be treated as that
party’s acquiescence to the remand. Responses and replies shall be filed and served in conformity
with Rules 5.12, 5.2 and 7.1 of these Rules.
(f)

Conditional Remand Orders
(i)
When the Panel has been advised by the transferee district judge, or
otherwise has reason to believe, that pretrial proceedings in the litigation
assigned to the transferee district judge are concluded or that remand of an
action or actions is otherwise appropriate, an order may be entered by the
Clerk of the Panel remanding the action or actions to the transferor district
court. The Clerk of the Panel shall serve this order on each party to the
litigation but, in order to afford all parties the opportunity to oppose remand,
shall not send the order to the clerk of the transferee district court for fifteen
fourteen days from the entry thereof.
(ii)
Any party opposing the remand shall file a notice of opposition with the
Clerk of the Panel within the fifteen fourteen-day period. If a notice of
opposition is received by the Clerk of the Panel within this fifteen fourteen
-day period, the Clerk of the Panel shall not transmit said order to the clerk
of the transferee district court until further order of the Panel. The Clerk of
the Panel shall notify the parties of the briefing schedule.
(iii) Within fifteen fourteen days of the filing of its notice of opposition, the party
opposing remand shall file a motion to vacate the conditional remand order
and brief in support thereof. The Chairman of the Panel shall set the motion
for the next appropriate hearing session of the Panel. Failure to file and serve
a motion and brief shall be treated as a withdrawal of the opposition and the
Clerk of the Panel shall forthwith transmit the order to the clerk of the
transferee district court.
(iv)
Conditional remand orders do not become effective unless and until they are
filed with the clerk of the transferee district court.
(v)
Notices of opposition and motions to vacate such orders of the Panel and
responses thereto shall be governed by Rules 5.12, 5.2, 7.1 and 7.2 of these
Rules.

(g)
Upon receipt of an order to remand from the Clerk of the Panel, the parties shall
furnish forthwith to the transferee district clerk a stipulation or designation of the contents of the
record or part thereof to be remanded and furnish the transferee district clerk all necessary copies
of any pleading or other matter filed so as to enable the transferee district clerk to comply with the
order of remand.
RULE 16.1:

HEARING SESSIONS AND ORAL ARGUMENT

(a)
Hearing sessions of the Panel for the presentation of oral argument and consideration
of matters taken under submission without oral argument shall be held as ordered by the Panel. The
- 12 -

Case 1:09-md-02106-ASG Document 4 Entered on FLSD Docket 12/04/2009 Page 13 of 17

Panel shall convene whenever and wherever desirable or necessary in the judgment of the Chairman.
The Chairman shall determine which matters shall be considered at each hearing session and the
Clerk of the Panel shall give notice to counsel for all parties involved in the litigation to be so
considered of the time, place and subject matter of such hearing session.
(b)
Each party filing a motion or a response to a motion or order of the Panel under Rules
7.2, 7.3, 7.4 or 7.6 of these Rules may file simultaneously therewith a separate statement limited to
one page setting forth reasons why oral argument should, or need not, be heard. Such statements
shall be captioned “Reasons Why Oral Argument Should [Need Not] Be Heard,” and shall be filed
and served in conformity with Rules 5.12 and 5.2 of these Rules.
(c)
No transfer or remand determination regarding any action pending in the district court
shall be made by the Panel when any party timely opposes such transfer or remand unless a hearing
session has been held for the presentation of oral argument except that the Panel may dispense with
oral argument if it determines that:
(i)
(ii)

the dispositive issue(s) have been authoritatively decided; or
the facts and legal arguments are adequately presented in the briefs and record,
and the decisional process would not be significantly aided by oral argument.

Unless otherwise ordered by the Panel, all other matters before the Panel, such as a motion for
reconsideration, shall be considered and determined upon the basis of the papers filed.
(d)
In those matters in which oral argument is not scheduled by the Panel, counsel shall
be promptly advised. If oral argument is scheduled in a matter the Clerk of the Panel may require
counsel for all parties who wish to make or to waive oral argument to file and serve notice to that
effect within a stated time in conformity with Rules 5.12 and 5.2 of these Rules. Failure to do so
shall be deemed a waiver of oral argument by that party. If oral argument is scheduled but not
attended by a party, the matter shall not be rescheduled and that party’s position shall be treated as
submitted for decision by the Panel on the basis of the papers filed.
(e)
Except for leave of the Panel on a showing of good cause, only those parties to
actions scheduled for oral argument who have filed a motion or written response to a motion or order
shall be permitted to appear before the Panel and present oral argument.
(f)
Counsel for those supporting transfer or remand under Section 1407 and counsel for
those opposing such transfer or remand are to confer separately prior to the oral argument for the
purpose of organizing their arguments and selecting representatives to present all views without
duplication.
(g)
Unless otherwise ordered by the Panel, a maximum of twenty minutes shall be
allotted for oral argument in each matter. The time shall be divided equally among those with
varying viewpoints. Counsel for the moving party or parties shall generally be heard first.
(h)
So far as practicable and consistent with the purposes of Section 1407, the offering
of oral testimony before the Panel shall be avoided. Accordingly, oral testimony shall not be
received except upon notice, motion and order of the Panel expressly providing for it.
- 13 -

Case 1:09-md-02106-ASG Document 4 Entered on FLSD Docket 12/04/2009 Page 14 of 17

(i)
After an action or group of actions has been set for a hearing session, consideration
of such action(s) may be continued only by order of the Panel on good cause shown.
II. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW
UNDER 28 U.S.C. §2112(a)(3)
RULE 17.1:

RANDOM SELECTION

(a)
Upon filing a notice of multicircuit petitions for review, the Clerk of the Panel or
designated deputy shall randomly select a circuit court of appeals from a drum containing an entry
for each circuit wherein a constituent petition for review is pending. Multiple petitions for review
pending in a single circuit shall be allotted only a single entry in the drum. This random selection
shall be witnessed by the Clerk of the Panel or a designated deputy other than the random selector.
Thereafter, an order on behalf of the Panel shall be issued, signed by the random selector and the
witness,
(i)
consolidating the petitions for review in the court of appeals for the circuit
that was randomly selected; and
(ii)
designating that circuit as the one in which the record is to be filed
pursuant to Rules 16 and 17 of the Federal Rules of Appellate Procedure.
(b)
A consolidation of petitions for review shall be effective when the Panel’s
consolidation order is filed at the offices of the Panel by the Clerk of the Panel.
RULE 25.1:

FILING OF NOTICES

(a)
An original of a notice of multicircuit petitions for review pursuant to 28 U.S.C.
§2112(a)(3) shall be submitted for filing to the Clerk of the Panel by the affected agency, board,
commission or officer. The term “agency” as used in Section II of these Rules shall include agency,
board, commission or officer.
(b)
All notices of multicircuit petitions for review submitted by the affected agency for
filing with the Clerk of the Panel shall embrace exclusively petitions for review filed in the courts
of appeals within ten days after issuance of an agency order and received by the affected agency
from the petitioners within that ten-day period.
(c)
When a notice of multicircuit petitions for review is submitted for filing to the Clerk
of the Panel, the Clerk of the Panel shall file the notice and endorse thereon the date of filing.
(d)
Copies of notices of multicircuit petitions for review shall be filed by the affected
agency with the clerk of each circuit court of appeals in which a petition for review is pending that
is included in the notice.
RULE 25.2:
(a)

ACCOMPANIMENTS TO NOTICES
All notices of multicircuit petitions for review shall be accompanied by:
(i)
a copy of each involved petition for review as the petition for review is
defined in 28 U.S.C. §2112(a)(2); and
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Case 1:09-md-02106-ASG Document 4 Entered on FLSD Docket 12/04/2009 Page 15 of 17

(ii)

a schedule giving
(A)
the date of the relevant agency order;
(B)
the case name of each petition for review involved;
(C)
the circuit court of appeals in which each petition for review is
pending;
(D)
the appellate docket number of each petition for review;
(E)
the date of filing by the court of appeals of each petition for review;
and
(F)
the date of receipt by the agency of each petition for review.

(b)
The schedule in Subsection (a)(ii) of this Rule shall also be governed by Rules 25.1,
25.3 and 25.4(a) of these Rules.
RULE 25.3:

SERVICE OF NOTICES

(a)
All notices of multicircuit petitions for review shall be accompanied by proof of
service by the affected agency on all other parties in all petitions for review included in the notice.
Service and proof of service shall be made as provided in Rule 25 of the Federal Rules of Appellate
Procedure. The proof of service shall state the name and address of each person served and shall
indicate the party represented by each. If a party is not represented by counsel, the proof of service
shall indicate the name of the party and his or her last known address. The original proof of service
shall be submitted by the affected agency for filing with the Clerk of the Panel and copies thereof
shall be sent by the affected agency to each person included within the proof of service.
(b)
The proof of service pertaining to notices of multicircuit petitions for review shall
certify that copies of the notices have been mailed or otherwise delivered by the affected agency for
filing to the clerk of each circuit court of appeals in which a petition for review is pending that is
included in the notice.
RULE 25.4:
(a)

FORM OF NOTICES
Each notice of multicircuit petitions for review shall be
(i)
flat and unfolded;
(ii)
plainly written, typed in double space, printed or prepared by means of a
duplicating process, without erasures or interlineations which materially
deface it;
(iii) on opaque, unglazed white paper (not onionskin);
(iv)
approximately 8-1/2 x 11 inches in size; and
(v)
fastened at the top-left corner without side binding or front or back covers.

(b)
The heading on the first page of each notice of multicircuit petitions for review shall
commence not less that three inches from the top of the page. Each notice shall bear the heading
Notice to the Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for Review,”
followed by a brief caption identifying the involved agency, the relevant agency order, and the date
of the order.

- 15 -

Case 1:09-md-02106-ASG Document 4 Entered on FLSD Docket 12/04/2009 Page 16 of 17

(c)
The final page of each notice of multicircuit petitions for review shall contain the
name, address and telephone number of the individual or individuals who submitted the notice on
behalf of the agency.
RULE 25.5:

SERVICE OF PANEL CONSOLIDATION ORDER

(a)
The Clerk of the Panel shall serve the Panel’s consolidation order on the affected
agency through the individual or individuals, as identified in Rule 25.4(c) of these Rules, who
submitted the notice of multicircuit petitions for review on behalf of the agency.
(b)
That individual or individuals, or anyone else designated by the agency, shall
promptly serve the Panel’s consolidation order on all other parties in all petitions for review
included in the Panel’s consolidation order, and shall promptly submit a proof of that service to the
Clerk of the Panel. Service and proof of that service shall also be governed by Rule 25.3 of these
Rules.
(c)
The Clerk of the Panel shall serve the Panel’s consolidation order on the clerks of all
circuit courts of appeals that were among the candidates for the Panel’s random selection.
*

*

*

*

- 16 -

*

Case 1:09-md-02106-ASG Document 4 Entered on FLSD Docket 12/04/2009 Page 17 of 17

III. CONVERSION TABLE
Renumbered Rule/Previous Rule
1.1
1.2
1.3
1.4
1.5
1.6
5.1
5.11
5.12
5.13
5.2
5.3
6.2

1
5
4
6
18
19
2
3
7
–
8
–
15

Renumbered Rule/Previous Rule
7.1
7.2
7.3
7.4
7.5
7.6
16.1
17.1
25.1
25.2
25.3
25.4
25.5

- 17 -

9
10
11
12
13
14
16, 16.2 & 17
24
20
21
22
23
25

Case 1:09-md-02106-ASG Document 5 Entered on FLSD Docket 12/04/2009 Page 1 of 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
STEVEN M. LARIMORE
Court Administrator • Clerk of Court

December 4, 2009
United States District Court
District of Nevada

RE:

MDL No. 2106 In Re: Fontainebleau Las Vegas Contract Litigation
Our Case #
09-md-2106-Gold
Your Case No. 2:09-1047 Avenue CLO Fund, Ltd., et al. v. Bank of America,
N.A., et al.,

Dear Clerk:
Attached is a certified copy of the order from the Judicial Panel on Multidistrict
Litigation (MDL Panel) transferring the above entitled action to the Southern District
of Florida. This case will be directly assigned to the Honorable Alan S. Gold.
Please proceed to close the case(s) in your district and initiate the civil case transfer
functionality in CM/ECF. We will initiate the procedure to retrieve the transferred
cases(s) upon receipt of the e-mail. If your court does not utilize the CM/ECF transfer
functionality, please forward the court file (including originating Complaint or Notice
of Removal, any amendments, docket sheet, and MDL Conditional Transfer Order
dated 12/2/09) as PDF documents to the Southern District of Florida via electronic
mail at: mdl@ flsd.uscourts.gov.
STEVEN M. LARIMORE
Clerk of Court

s/ Graciela Gomez
by:
MDL Clerk
Encl.

G400 N. Miami Avenue
Room 8N09
Miami, FL 33128
305-523-5100

G299 E. Broward Boulevard
Room 108
Ft. Lauderdale, FL 33301
954-769-5400

G701 Clematis Street
Room 402
W. Palm Beach, FL 33401
561-803-3400

G301 Simonton Street
Room 130
Key West, FL 33040
305-295-8100

G300 S. Sixth Street
Ft. Pierce, FL 34950
772-595-9691

Case 1:09-md-02106-ASG Document 6 Entered on FLSD Docket 12/08/2009 Page 1 of 3

Case 1:09-md-02106-ASG Document 6 Entered on FLSD Docket 12/08/2009 Page 2 of 3

Case 1:09-md-02106-ASG Document 6 Entered on FLSD Docket 12/08/2009 Page 3 of 3

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV–GOLD/MCALILEY
In re:
Fontainebleau Las Vegas Contract Litigation
/
This Document Relates to: All Actions
Joint Notice
Plaintiff Fontainebleau Las Vegas LLC (“Fontainebleau”) in the case captioned
Fontainebleau Las Vegas, LLC v. Bank of America, N.A., et al., Case No. 09-21879-CIVGOLD/MCALILEY (S.D. Fla.) (the “Fontainebleau Action”), the plaintiffs in the case captioned
Avenue CLO Fund, Ltd., et al. v. Bank of America, et al., Case No. 09-1047-CIV-KJD (D. Nev.)
(the “Avenue CLO Action”), the plaintiffs in the case captioned ACP Master, LTD, et al. v. Bank
of America, et al, Case No. 09-cv-8064-LTS/THK (S.D.N.Y) (the “Aurelius Action”) and
defendants 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, Sumitomo Mitsui Banking Corporation, Bank of Scotland PLC, HSH Nordbank,
AG, New York Branch, MB Financial Bank, N.A., and Camulos Master Fund, L.P. (collectively,
the “Revolver Banks”), having met and conferred, respectfully submit this Joint Notice in
accordance with the Court’s December 8, 2009 Order (D.E. # 6).
A.

Issues not in Dispute: Proposed Consolidated Pre-Trial Schedule and Procedures
All plaintiffs and defendants in these consolidated proceedings have agreed to dates set

forth in the proposed pre-trial schedule appearing in the table below. If approved by the Court,
this schedule would apply to each of the above-captioned actions and supersede the schedule
contained in the Court’s November 10, 2009 Scheduling Order, entered in the Fontainebleau
Action (D.E. # 103):

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 2 of 9

DATE

ACTION

By

January 15, 2010

Service of Amended Complaints in the Avenue CLO and
Aurelius Actions.

By

January 22, 2010

The parties shall exchange the information required by Fed.
R. Civ. P. 26(a)(1).

By

January 29, 2010

By

February 18, 2010

Initial Requests for Production and Interrogatories to be
exchanged.1 The parties may serve subpoenas on nonparties at this time.
Service of Defendants’ Answers to or Motions under Fed.
R. Civ. P. 12(b) regarding the Amended Complaints in the
Avenue CLO and Aurelius Actions.

By

March 1, 2010

Written responses to initial Requests for Production and
Interrogatories to be served. Any related document
productions to commence on a rolling basis.

By

March 22, 2010

Service of Avenue CLO Action and/or Aurelius Action
Plaintiffs’ Oppositions to any Motions under Fed. R. Civ. P.
12(b).

By

April 5, 2010

Service of Defendants’ Replies to any Motions under Fed.
R. Civ. P. 12(b).

By

May 13, 2010

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

By

July 1, 2010

Commencement of fact depositions.

By

September 15, 2010

All non-dispositive, non-discovery related pretrial motions
(including motions pursuant to Fed. R. Civ. P. 14, 15, 18
through 22, and 42 motions2) shall be filed. Any motion to
amend or supplement the pleadings filed pursuant to Fed. R.
Civ. P. 15(a) or 15(d) shall comport with S.D. Fla. L.R. 15.1
and shall be accompanied by the proposed amended or
supplemental pleading and a proposed order as required.
When filing non-dispositive motions, the filing party
must attach a proposed order to the motion as well as
emailing the proposed order to [e-mail].
Failure to provide the proposed order may result in

1

The parties have agreed that Interrogatories shall be limited to those seeking names of witnesses with
knowledge of information relevant to the subject matter of the action, the computation of each category of
damage alleged, and the existence, custodian, location and general description of relevant documents,
including pertinent insurance agreements, and other physical evidence, or information of a similar nature.
Nothing herein shall preclude the parties from serving additional interrogatories.

2

This order is without prejudice to the ability of any party to seek, or oppose, the transfer or consolidation
for trial of any action in the event the action is returned to the court from which it was transferred to this
MDL.

2

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 3 of 9

denial of the motion without prejudice. Please refer to
the docket entry number on the proposed order. The
Complete CM/ECF Administrative Procedures are available
on the Court’s Website at www.flsd.uscourts.gov.
By

September 30, 2010

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

By

November 1, 2010

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

By

January 31, 2011

Final date to exchange written discovery demands,
including Requests for Production, Requests for Admission
and Interrogatories.

By

April 15, 2011

Conclusion of fact discovery.

By

May 2, 2011

The parties shall comply with S.D. Fla. L.R. 16.1(K)
concerning the exchange of expert witness summaries and
reports. This date shall supersede any other date in Local
Rule 16.1(K).

By

June 1, 2011

Rebuttal expert reports shall be filed.

By

July 15, 2011

All expert discovery, including depositions, shall be
completed.

By

July 29, 2011

All dispositive pretrial motions, including motions to strike
in whole or in part expert testimony, and memoranda of law
must be filed. 3 If any party moves to strike an expert
affidavit filed in support of a motion for summary
judgment [for reasons stated in Daubert v. Merrill Dow
Pharmaceuticals, Inc, 509 U.S. 579, 125 L.Ed. 2d 469, 113
S.Ct. 2786 (1993) and Kumho Tire Company, Ltd. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238
(1999)], the motion to strike shall be filed with that
party’s responsive memorandum. Please carefully review
the instructions for filing motions for summary judgment.

By

August 30, 2011

Opposition to any dispositive motions to be filed.

By

September 15, 2011

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

3

The proposal of this date for the filing of summary judgment motions is without prejudice to any parties’
rights to argue in the future that such motions should be heard by the transferor court in the Avenue Capital
and/or Aurelius Actions.

3

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 4 of 9

B.

Issues in Dispute
1.

Fontainebleau’s Motion To Certify Under 28 U.S.C. § 1292(b)

Fontainebleau’s position is that its Motion to Certify under 28 U.S.C. § 1292(b) this Court’s
Orders Withdrawing the Reference and Denying Summary Judgment, and For a Stay Pending the
Disposition of Any Appeal, filed in the Fontainebleau Action (the “Appeal Motion”) (D.E. # 98),
is meritorious, should be granted as soon as possible and that discovery should be stayed until
after the resolution of any resulting appeal. The Revolver Banks’ position is that the 1292(b)
Motion is without merit and should be denied and that discovery should not be stayed. The
position of the plaintiffs in the Avenue CLO Action and the Aurelius Action is that the Court
should not consider the question of 1292(b) certification until after the resolution of potential
motions to dismiss in their actions.
2.

Fontainebleau’s Potential Inability To Secure Sufficient Financing To Conduct
Discovery

Fontainebleau has requested that the following provision be included in any discovery
schedule entered in this case: “Fontainebleau’s agreement to the foregoing schedule is subject to
its ability to secure sufficient financing to defray the costs of collecting, scanning, processing,
reviewing and producing documents and ESI from plaintiffs and defendants, as well as the costs
of preparing for and conducting depositions. Fontainebleau explicitly reserves the right to seek
modification of this schedule, or as to the scope of discovery, in the event it is unable to secure
such financing. The Revolver Banks reserve all rights in that event as well.”
Fontainebleau insists upon this provision because, as a debtor in a federal bankruptcy
proceeding, it has yet to secure sufficient financing to conduct the extensive discovery which is
likely to occur in this case, and thus this provision is necessary in the event it cannot comply
with any deadlines. Fontainebleau’s position is that although the Court did not include this

4

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 5 of 9

requested provision in its November 10, 2009 Scheduling Order, the Court made no rulings or
findings with respect to this issue.
The Revolver Banks’ position is that the Court already rejected this request, which
Fontainebleau previously made in the parties’ September 11, 2009 Rule 16.1 Joint Submission in
the Fontainebleau Action (D.E. # 64), and which the Court denied by not including the requested
provision in its November 10, 2009 Scheduling Order. The Revolver Banks maintain their
objection to the inclusion of this provision because Fontainebleau brought this action and
Fontainebleau is obligated to provide discovery relevant to its claims and the Revolver Banks’
defenses. The Revolver Banks argue that Fontainebleau’s potential inability to conduct
sufficient discovery should not allowed to prejudice the Revolver Banks’ ability to develop
evidence in support of their defenses.
The plaintiffs in the Avenue CLO Action and the Aurelius Action do not support any
delay of discovery.

Dated: Miami, Florida
December 11, 2009

Respectfully submitted,
GREENBERG TRAURIG, LLP

BILZIN SUMBERG BAENA PRICE &
AXELROD, LLP

By: /s/ Mark D. Bloom
Mark D. Bloom
Florida Bar No. 303836
1221 Brickell Avenue
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
-and-

.
By: /s/ Scott Baena
Scott Baena
200 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131-2339
Telephone: [phone]
Facsimile: [phone]
-andKASOWITZ, BENSON, TORRES &
FRIEDMAN LLP

.

SIMPSON THACHER & BARTLETT LLP
Thomas C. Rice (pro hac vice)
David Woll (pro hac vice)

David M. Friedman (pro hac vice)

5

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 6 of 9

Jed I. Bergman (pro hac vice)
Seth A. Moskowitz (pro hac vice)
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]

425 Lexington Avenue
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

Attorneys for Plaintiff
FONTAINEBLEAU LAS VEGAS LLC

Attorneys for Defendants
JPMORGAN CHASE BANK, N.A.,
BARCLAYS BANK PLC, DEUTSCHE
BANK TRUST COMPANY AMERICAS, and
THE ROYAL BANK OF SCOTLAND PLC

DIMOND KAPLAN & ROTHSTEIN, P.A.

HUNTON & WILLIAMS LP

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

By: /s/ Craig V. Rasile
Craig V. Rasile
Kevin M. Eckhardt
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

.

-and-

-and-

HENNIGAN BENNETT & DORMAN LLP

O’MELVENY & MYERS LLP

J. Michael Hennigan (pro hac vice)
Kirk D. Dillman (pro hac vice)
865 S Figueroa Street
Suite 2900
Los Angeles, CA 90017
Email: [e-mail]

.

Bradley J. Butwin (pro hac vice)
Jonathan Rosenberg (pro hac vice)
Daniel L. Cantor (pro hac vice)
William J. Sushon (pro hac vice)
Seven Times Square
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
Email: bbutwin @omm.com
[e-mail]
[e-mail]
[e-mail]

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

Attorneys for Defendants
BANK OF AMERICA, N.A. and MERRILL
LYNCH CAPITAL CORPORATION

6

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 7 of 9

KLEINBERG, KAPLAN, WOLFF &
COHEN, P.C.
By: /s/ Steven Nachtwey
Steven Nachtwey
551 Fifth Avenue, 18th Floor
New York, New York 10176
Telephone: [phone]
Facsimile: [phone]

SHUTTS & BOWEN LLP

.

By: Robert G. Fracasso
Robert G. Fracasso
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
Email: rfracasso @shutts.com

.

-and-andBARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
MAYER BROWN LLP
James B. Heaton, III
Steven J. Nachtwey
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

Jean-Marie L. Atamiam (pro hac vice)
Jason I. Kirschner (pro hac vice)
1675 Broadway
New York, New York 10019-5820
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs
ACP MASTER, LTD. AND AURELIUS
CAPITAL MASTER, LTD.

Attorneys for Defendant
SUMITOMO MITSUI BANKING
CORPORATION

STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, PA

RICE PUGATCH ROBINSON & SCHILLER,
P.A.

By: /s/ Harold D. Moorefield, Jr.
Harold D. Moorefield, Jr.
Drew M. Dillworth
Museum Tower
150 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: [phone]
Facsimile: [phone]

.
By: /s/ Arthur Halsey Rice
Arthur Halsey Rice
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]

.

-and-

-and-

KATTEN MUCHIN ROSENMAN LLP
Kenneth E. Noble (pro hac vice)
Anthony L. Paccione ((pro hac vice)
575 Madison Avenue
New York, New York 10022

KAYE SCHOLER LLP
Aaron Rubinstein (pro hac vice)
Phillip A. Geraci (pro hac vice)
425 Park Avenue
New York, New York 10022

7

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 8 of 9

Telephone: [phone]
Facsimile: [phone]

Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendant
BANK OF SCOTLAND PLC
MCDERMOTT WILL & EMERY LLP

Attorneys for Defendant
HSH NORDBANK AG, NEW YORK
BRANCH
FURR & COHEN, P.A.

By: /s/ Bruce Berman
.
Bruce Berman
201 South Biscayne Boulevard 22nd Floor
Miami, FL 33131-4336
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

.
By: /s/ Alvin S. Goldstein
Alvin S. Goldstein
2255 Glades Road, Suite 337W
Boca Raton, Florida 33431
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

-and-

-and-

Andrew B. Kratenstein
340 Madison Avenue
New York, NY 10173-1922
Telephone: Phone: [phone]
Facsimile: Fax: [phone]
E-mail: [e-mail]

SHAW GUSSIS FISHMAN GLANTZ
WOLFSON & TOWBIN LLC
Robert W. Glantz (pro hac vice)
Peter J. Roberts (pro hac vice)
321 North Clark St., Suite 800
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendant
CAMULOS MASTER FUND, L.P.

Attorneys for Defendant
MB FINANCIAL BANK, N.A.

8

Case 1:09-md-02106-ASG Document 7 Entered on FLSD Docket 12/11/2009 Page 9 of 9

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Joint Notice was
served via the Court’s CM/ECF system on all parties registered to receive electronic notice in
this case on December 11, 2009.
/s/ Mark D. Bloom
MARK D. BLOOM

9

.

Case 1:09-md-02106-ASG Document 8 Entered on FLSD Docket 12/22/2009 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV-GOLD/MCALILEY
[original SDFL action 09-21879]
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions
_________________________________/
MDL ORDER NUMBER TWO1 FOLLOWING
TELEPHONIC STATUS CONFERENCE; SETTING
ORAL ARGUMENT; ALLOWING SUBMISSION AND RESPONSE
THIS CAUSE is before the Court following a telephonic status conference. For
the reasons stated of record, it is hereby
ORDERED AND ADJUDGED that:
1.

Oral argument on Fontainebleau’s Motion for Leave to Appeal and for
Stay Pending Appeal [DE 98 - filed in 09-21879 CIV-GOLD] is hereby set
before the Honorable Alan S. Gold, at the United States District Court,
Courtroom 11-1, Eleventh Floor, 400 North Miami Avenue, Miami, Florida,
on January 21, 2010 at 5:00 p.m. Counsel may appear personally or via
telephone. Counsel wishing to appear telephonically shall call
1.866.208.0348 on the above date and time. Refer to Conference ID #
48580946. Please be prompt.

2.

The Nevada and New York Plaintiffs may file a brief Joint Submission
regarding Fontainebleau’s Motion [DE 98] no later than 5:00 p.m. on

1

Although not expressly labeled as such, MDL Order No. 1 can be found at [DE 6].

Case 1:09-md-02106-ASG Document 8 Entered on FLSD Docket 12/22/2009 Page 2 of 4

January 13, 2010.
3.

Fontainebelau shall have until 5:00 p.m. on January 20, 2010 to file a
brief response to the Joint Submission, if necessary.

DONE AND ORDERED in Chambers, at Miami, Florida, this 21st day of
December, 2009.
__________________________
HONORABLE ALAN S. GOLD
U.S. DISTRICT JUDGE

cc: U.S. Magistrate Judge Chris M. McAliley
All counsel of record in all three cases

NEVADA CASE # 09-1047
Bruce Bennett
Hennigan, Bennett & Dorman, LLP
865 South Figueroa Street
Los Angeles, CA 90017
[phone]
Email: [e-mail]
J. Michael Hennigan
865 South Figueroa Street
Los Angeles, CA 90017
[phone]
Fax: [phone]
Email: [e-mail]
Lauren A. Smith
Hennigan, Bennett & Dorman, LLP
865 South Figueroa St.
Los Angeles, CA 90017
[phone]
Email: [e-mail]
Susan Williams Scann
Deaner, Deaner, Scann, Malan & Larsen
720 S. Fourth Street
Suite 300
Las Vegas, NV 89101
702-382-6911

Fax: [phone]
Email: [e-mail]
S.D.N.Y. CASE # 09-8064
David Parker
Kleinberg,Kaplan,Wolff & Cohen,P.C.
551 Fifth Avenue
18th floor
New York , NY 10176
[phone]
Fax: [phone]
Email: [e-mail]
James B. Heaton , III
Bartlit Beck Herman Palenchar & Scott LLP
(IL)
54 West Hubbard Street
Suite 300
Chicago , IL 60610-4697
[phone]
Fax: [phone]
Email: [e-mail]
Marc R. Rosen
Kleinberg,Kaplan,Wolff & Cohen,P.C.
551 Fifth Avenue
New York , NY 10176

Case 1:09-md-02106-ASG Document 8 Entered on FLSD Docket 12/22/2009 Page 3 of 4

[phone]
Fax: [phone]
Email: [e-mail]
Steven James Nachtwey
Bartlit Beck Herman Palenchar & Scott LLP
(IL)
54 West Hubbard Street
Suite 300
Chicago , IL 60610-4697
[phone]
Fax: [phone]
Email: [e-mail]
Peter J Roberts
Shaw Gussis Fishman Glant Wolfson &
Towbin, L.L.C.
321 North Clark Street
Suite 800
Chicago , IL 60654
[phone]
Fax: [phone]
Andrew Bennett Kratenstein
McDermott, Will & Emery, LLP (NY)
340 Madison Avenue
New York , NY 10017
[phone]
Fax: [phone]
Email: [e-mail]
CM/ECF PROCEDURES:
PROPOSED ORDERS: Counsel shall
send a proposed order for all nondispositive motions in WORDPERFECT
FORMAT [or WORD] directly to
[e-mail]. Please refer to the
case number in the subject line of the email
and the docket entry number on the
proposed order. The Complete CM/ECF
Administrative Procedures are available on
the Court’s Website at
www.flsd.uscourts.gov

Case 1:09-md-02106-ASG Document 8 Entered on FLSD Docket 12/22/2009 Page 4 of 4

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-2106-MD-GOLD/MCALILEY
CASE NO.: 09-21879-CIV-GOLD/McALILEY [Related Case]
CASE NO.: 09-23835-CIV-GOLD/McALILEY [Related Case]
IN RE:
FONTAINBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions
________________________________/
MDL ORDER NUMBER THREE
AMENDED ORDER SETTING PRETRIAL AND TRIAL DATES, REFERRING
DISCOVERY MOTIONS, DIRECTING PARTIES TO MEDIATION, AND
ESTABLISHING PRETRIAL DATES AND PROCEDURES
Based upon the parties’ discussions with the Court at the telephonic status conference on
December 18, 2009, dates for the pretrial conference, oral arguments, calendar call, and trial of
this case are set forth below. Counsel shall carefully review and comply with the following
requirements concerning the pretrial conference.
Pretrial Conference and Trial Date
1. The pretrial conference is set pursuant to Fed.R.Civ.P. 16 for January 13, 2012 at
2:00 p.m. Unless instructed otherwise by subsequent order, the trial and all other proceedings
shall be conducted at 400 North Miami Avenue, Courtroom 11-1, Miami, Florida 33128.
Pursuant to S.D.Fla.L.R. 16.1(C), each party shall be represented at the pretrial conference and at
the meeting required by S.D.Fla.L.R. 16.1(D) by the attorney who will conduct the trial, except
for good cause shown.
2. Trial is set for the two-week calendar commencing Monday, February 13, 2012.
Counsel for all parties shall appear at a Calendar Call on Wednesday, February 8, 2012 at 1:30
p.m.

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 2 of 7

Referral
3. Pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the
Southern District of Florida, all discovery pretrial motions in the above-captioned cause, except
all motions for extension of time which could affect the dates set forth below, are hereby referred
to United States Magistrate Judge McAliley to take all necessary and proper action as required
by law.

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

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

2

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 3 of 7

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

3

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 4 of 7

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

1-15-2010

By

1-22-2010

By

1-29-2010

ACTION
Service of Amended Complaints in the Avenue CLO
and Aurelius Actions.
The parties shall exchange the information required by
Fed.R.Civ.P. 26(a)(1).
Initial Requests for Production and Interrogatories to be
exchanged. [The parties have agreed that Interrogatories
shall be limited to those seeking names of witnesses
with knowledge of information relevant to the subject
matter of the action, the computation of each category of
damage alleged, and the existence, custodian, location,
location and general description of relevant documents,
including pertinent insurance agreements, and other
physical evidence, or information of a similar nature.
Nothing herein shall preclude the parties from serving
additional Interrogatories.] The parties may serve

4

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 5 of 7

subpoenas on non-parties at this time.
Service of Defendants’ Answers to or motions under
Fed.R.Civ.P. 12(b) regarding the Amended Complaints
in the Avenue CLO and Aurelius Actions.
Written responses to initial Requests for Production and
Interrogatories to be served. Any related document
productions to commence on a rolling basis.

By

2-18-2010

By

3-1-2010

By

3-22-2010

Service of Avenue CLO Action and/or Aurelius Action
Plaintiffs Oppositions to any motions under
Fed.R.Civ.P. 12(b).

By

4-5-2010

Service of Defendants’ Replies to any Motions under
Fed.R.Civ.P. 12(b).

ON

5-7-2010 @ 3:15 p.m.

Oral argument on any Motions to Dismiss.

By

5-13-2010

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

By

7-1-2010

Commencement of fact depositions.

By

9-15-2010

All non-dispositive, non-discovery related pretrial
motions (including motions pursuant to Fed. R. Civ. P.
14, 15, 18 through 22, and 42 motions) shall be filed.
Any motion to amend or supplement the pleadings filed
pursuant to Fed. R. Civ. P. 15(a) or 15(d) shall comport
with S.D. Fla. L.R. 15.1 and shall be accompanied by
the proposed amended or supplemental pleading and a
proposed order as required. When filing nondispositive motions, the filing party must attach a
proposed order to the motion well as emailing the
proposed order to [e-mail]. Failure to
provide the proposed order may result in denial of
the motion without prejudice. Please refer to the
docket entry number on the proposed order. The
Complete CM/ECF Administrative Procedures are
available on the Court’s Website at
www.flsd.uscourts.gov.

5

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 6 of 7

By

9-30-2010

Plaintiff shall furnish opposing counsel with a written
list containing the names and addresses of all expert
witnesses intended to be called at trial and only those
expert witnesses so listed shall be permitted to testify.
Defendant shall furnish opposing counsel with a written
list containing the names and addresses of all expert
witnesses intended to be called at trial and only those
expert witnesses so listed shall be permitted to testify.
Final date to exchange written discovery demands,
including Requests for Production, Requests for
Admission and Interrogatories.

By

11-1-2010

By

1-31-2011

By

4-14-2011

Conclusion of fact discovery.

By

5-2-2011

By
By

6-1-2011
7-15-2011

By

7-29-2011

By

8-30-2011

The parties shall comply with S.D. Fla. L.R. 16.1(K)
concerning the exchange of expert witness summaries
and reports. This date shall supersede any other date in
Local Rule 16.1(K).
Rebuttal expert reports shall be filed.
All expert discovery, including depositions, shall be
completed.
All dispositive pretrial motions, including motions to
strike in whole or in part expert testimony, and
memoranda of law must be filed. If any party moves
to strike an expert affidavit filed in support of a
motion for summary judgment [for reasons stated in
Daubert v. Merrill Dow Pharmaceuticals, Inc, 509 U.S.
579, 125 L.Ed. 2d 469, 113 S.Ct. 2786 (1993) and
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S.
137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)], the
motion to strike shall be filed with that party’s
responsive memorandum. Please carefully review the
instructions for filing motions for summary judgment.
Opposition to any dispositive motions to be filed.

By

9-15-2011

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

6

Case 1:09-md-02106-ASG Document 10 Entered on FLSD Docket 01/08/2010 Page 7 of 7

By

12-13-2011

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

ON

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

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

DONE and ORDERED in Chambers in Miami, Florida this 8th day of January, 2010.

THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE

7

Case 1:09-md-02106-ASG Document 12 Entered on FLSD Docket 01/13/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV–GOLD/MCALILEY
In re:
Fontainebleau Las Vegas Contract Litigation
/
This Document Relates to: All Actions
TERM LENDERS’ OPPOSITION TO PLAINTIFF FONTAINEBLEAU’S MOTION TO
CERTIFY UNDER 28 U.S.C. 1292(b) DENYING SUMMARY JUDGMENT
The Term Lenders1 request that this Court deny, without prejudice, Fontainebleau’s motion
to certify for interlocutory appeal this Court’s order denying partial summary judgment.
If the motion is granted at this time, before this Court has an opportunity to hear from the
Term Lenders on the rulings to be appealed, the ultimate termination of this multidistrict litigation
will not be materially advanced. All of the parties in this multidistrict litigation, including
Fontainebleau, agreed that centralization is appropriate because the cases raise related and
overlapping legal and factual issues. One of the key issues in all three related cases will be the
proper interpretation of the Credit Agreement. To date, this Court has only heard the arguments of
Fontainebleau and defendants. The Term Lenders have not been heard on any issues raised in
Fontainebleau’s motion for partial summary judgment including the proper interpretation of the
phrase “fully drawn.” The Term Lenders will raise new arguments with respect to these issues, and
will explain to the Court why the positions of the defendants are in error.
An interlocutory appeal by Fontainebleau at this time will not proceed together with any
potential later appeal of the same issues by either the Term Lenders or defendants addressing
arguments not raised by Fontainebleau. If “permitting piecemeal appeals is bad policy,” permitting
piecemeal appeals of the same issue addressing different arguments is even worse policy. See
1

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

Case 1:09-md-02106-ASG Document 12 Entered on FLSD Docket 01/13/2010 Page 2 of 2

McFarlin v. Conesco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). The purpose of centralizing
related cases in an MDL proceeding is to address common issues of law and fact in all cases in an
organized manner allowing all interested parties to be heard. The purpose of an interlocutory appeal
is to achieve judicial efficiency and advance the termination of the litigation. Both of these purposes
would be frustrated if Fontainebleau appealed issues common to all three cases without all parties
and new arguments being heard.
Accordingly, the motion should be denied, without prejudice to the right of any party to refile
the motion after this Court has heard and adjudicated the arguments of the Term Lenders.

Respectfully submitted,
HENNIGAN BENNET & DORMAN, LLP

BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP

By:

s/ Kirk D. Dillman
Kirk D. Dillman, Esq.
J. Michael Hennigan, Esq.
865 S Figueroa Street, Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]

By:

-and-

-and-

DIMOND KAPLAN & ROTHSTEIN, P.A.

KLEINBERG, KAPLAN, WOLFF & COHEN, P.C.

By:

551 Fifth Avenue, 18th Floor
New York, New York 10176
Telephone: [phone]
Facsimile: [phone]

s/ David A. Rothstein
David A. Rothstein, Esq.
2665 South Bayshore Drive
Penthouse Two-B
Miami, FL 33133
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiffs
AVENUE CLO FUND, LTD., ET AL.

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

Attorneys for Plaintiffs
ACP MASTER, LTD., ET AL.

Case 1:09-md-02106-ASG Document 13 Entered on FLSD Docket 01/14/2010 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV-GOLD/MCALILEY
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions
_________________________________/
MDL ORDER NUMBER FOUR: ADMINISTRATIVELY CLOSING MEMBER CASES
THIS CAUSE is before the Court sua sponte. Having reviewed the record and
being otherwise duly advised, it is hereby
ORDERED AND ADJUDGED that:
1.

The Clerk is directed to Administratively Close the Following Member Cases:
a.
b.

2.

09-CV-21879-GOLD; and
09-CV-23835-GOLD

The dockets in the above-referenced cases, as well as the Master Docket, will
continue to be maintained in accordance with MDL Order Number Three [DE 10].
DONE AND ORDERED in Chambers, at Miami, Florida, this 13th day of

January 2010.
_____________________________
THE HONORABLE ALAN S. GOLD
U.S. DISTRICT JUDGE
cc: U.S. Magistrate Judge Chris M. McAliley
All counsel of record in all three cases
NEVADA CASE # 09-1047
Bruce Bennett

Los Angeles, CA 90017
[phone]
Email: [e-mail]

Hennigan, Bennett & Dorman, LLP
865 South Figueroa Street

J. Michael Hennigan
865 South Figueroa Street

Case 1:09-md-02106-ASG Document 13 Entered on FLSD Docket 01/14/2010 Page 2 of 3

Los Angeles, CA 90017
[phone]
Fax: [phone]
Email: [e-mail]
Lauren A. Smith
Hennigan, Bennett & Dorman, LLP
865 South Figueroa St.
Los Angeles, CA 90017
[phone]
Email: [e-mail]
Susan Williams Scann
Deaner, Deaner, Scann, Malan & Larsen
720 S. Fourth Street
Suite 300
Las Vegas, NV 89101
702-382-6911
Fax: [phone]
Email: [e-mail]

Email: [e-mail]
Steven James Nachtwey
Bartlit Beck Herman Palenchar & Scott LLP
(IL)
54 West Hubbard Street
Suite 300
Chicago , IL 60610-4697
[phone]
Fax: [phone]
Email: [e-mail]
Peter J Roberts
Shaw Gussis Fishman Glant Wolfson &
Towbin, L.L.C.
321 North Clark Street
Suite 800
Chicago , IL 60654
[phone]
Fax: [phone]

S.D.N.Y. CASE # 09-8064
David Parker
Kleinberg,Kaplan,Wolff & Cohen,P.C.
551 Fifth Avenue
18th floor
New York , NY 10176
[phone]
Fax: [phone]
Email: [e-mail]
James B. Heaton , III
Bartlit Beck Herman Palenchar & Scott LLP
(IL)
54 West Hubbard Street
Suite 300
Chicago , IL 60610-4697
[phone]
Fax: [phone]
Email: [e-mail]
Marc R. Rosen
Kleinberg,Kaplan,Wolff & Cohen,P.C.
551 Fifth Avenue
New York , NY 10176
[phone]
Fax: [phone]

Andrew Bennett Kratenstein
McDermott, Will & Emery, LLP (NY)
340 Madison Avenue
New York , NY 10017
[phone]
Fax: [phone]
Email: [e-mail]

CM/ECF PROCEDURES:
PROPOSED ORDERS: Counsel shall
send a proposed order for all nondispositive motions in WORDPERFECT
FORMAT [or WORD] directly to
[e-mail]. Please refer to the
case number in the subject line of the email
and the docket entry number on the
proposed order. The Complete CM/ECF
Administrative Procedures are available on
the Court’s Website at
www.flsd.uscourts.gov

Case 1:09-md-02106-ASG Document 13 Entered on FLSD Docket 01/14/2010 Page 3 of 3

Case 1:09-md-02106-ASG Document 14 Entered on FLSD Docket 01/14/2010 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-2106-CIV-GOLD/McALILEY

IN RE:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
________________________________/

MOTION FOR ORDER APPROVING
STIPULATION FOR SUBSTITUTION OF COUNSEL
MB FINANCIAL BANK, N.A. requests this Court for the entry of an order substituting
the law firm of Astigarraga Davis Mullins & Grossman, P.A. as local counsel of record for MB
FINANCIAL BANK, N.A. in this action, and relieving the law firm of FURR AND COHEN,
P.A. of any further responsibility herein.
Respectfully submitted,

FURR AND COHEN, P.A.
2255 Glades Road
One Boca Place, Suite 337W
Boca Raton, FL 33431
E-mail: [e-mail]
E-mail: [e-mail]
Tel: [phone]
Fax: [phone]

ASTIGARRAGA DAVIS
MULLINS & GROSSMAN, P.A.
701 Brickell Avenue, 16th Floor
Miami, Florida 33131
E-mail: [e-mail]
Tel: [phone]
Fax: [phone]

By s/Robert C. Furr
Robert C. Furr
Florida Bar No. 210854
Alvin S. Goldstein
Florida Bar No. 993621

By: s/ Gregory S. Grossman
Gregory S. Grossman
Florida Bar No. 896667

ASTIGARRAGA DAVIS MULLINS & GROSSMAN, P.A.

Case 1:09-md-02106-ASG Document 14 Entered on FLSD Docket 01/14/2010 Page 2 of 3

CERTIFICATE OF SERVICE
I hereby certify that on January 14, 2010, I filed the foregoing document with the Clerk
of the Court who will generate Notices of Electronic Filing to all counsel of record or other
persons authorized to receive Notice of Electronic Filing generated by CM/ECF.

s/ Gregory S. Grossman
Gregory S. Grossman

F:\WDOX\CLIENTS\90000\1906\00092824.DOC

Case 1:09-md-02106-ASG Document 14 Entered on FLSD Docket 01/14/2010 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-2106-CIV-GOLD/McALILEY

IN RE:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
________________________________/
ORDER APPROVING
STIPULATION FOR SUBSTITUTION OF COUNSEL
This cause came on before the Court on MB FINANCIAL BANK, N.A. Motion for
Order Approving Stipulation for Substitution of Counsel.

The Court having reviewed the

Motion and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED
that:
(1)

The law firm of Astigarraga, Davis, Mullins, & Grossman is hereby substituted

for FURR AND COHEN, P.A. as counsel for MB FINANCIAL BANK, N.A..
(2)

FURR AND COHEN, P.A. is relieved of all further responsibility for the defense

of this matter.
(3)

All further papers in this matter shall be served upon the law firm of Astigarraga,

Davis, Mullins & Grossman at 701 Brickell Avenue, 16th Floor, Miami, Florida 33131.
DONE AND ORDERED in the Southern District of Florida this _____ day of January,
2010.

____________________________________
United States District Court Judge
F:\WDOX\CLIENTS\90000\1906\00092855.DOC

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 1 of 39

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV-GOLD/MCALILEY
[original SDFL action 09-21879]

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
AVENUE CLO FUND, LTD., et al.,
Plaintiffs,
vs.
BANK OF AMERICA, N.A., et al.,
Defendants.

) Case No. 09-CV-01047-KJD-PAL
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SECOND AMENDED COMPLAINT FOR BREACH OF CONTRACT,
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH
AND FAIR DEALING, AND DECLARATORY RELIEF
JURY TRIAL DEMANDED
This action is brought by the Plaintiffs, each of which is a lender under a June 6, 2007
Credit Agreement (the “Credit Agreement”), by and among, inter alia, Fontainebleau Las Vegas,
LLC and Fontainebleau Las Vegas II, LLC (together, the “Borrower”), the lenders referred to
therein, and Bank of America N.A, in various capacities (in all capacities, “BofA”), against
Defendants Bank of America, N.A., Merrill Lynch Capital Corporation, J.P. Morgan Chase
Bank, N.A., Barclays Bank PLC, Deutsche Bank Trust Company Americas, The Royal Bank of
Scotland PLC, Sumitomo Mitsui Banking Corporation, Bank of Scotland, HSH Nordbank AG,
MB Financial Bank, N.A., and Camulos Master Fund, L.P. (“Defendants”), in their capacities as
lenders under the Credit Agreement, as well as Bank of America, NA, in its capacities as

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 2 of 39

Administrative Agent under the Credit Agreement and as Disbursement Agent under the related
1

Master Disbursement Agreement. Plaintiffs allege for their complaint as follows:
JURISDICTION AND VENUE
1.

This Court has jurisdiction over the subject matter of this action pursuant to

12 U.S.C. § 632 because defendants BofA, 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.
2.

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

because the Project is located in Nevada and many of the acts and transactions at issue occurred
in Nevada.
PARTIES
Plaintiffs
3.

Plaintiff Avenue CLO Fund, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
4.

Plaintiff Avenue CLO II, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
5.

Plaintiff Avenue CLO III, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
6.

Plaintiff Avenue CLO IV, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
7.

Plaintiff Avenue CLO V, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.

1

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

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8.

Plaintiff Avenue CLO VI, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
9.

Plaintiff Brigade Leveraged Capital Structures Fund, Ltd. is an exempted

company with limited liability incorporated under the laws of the Cayman Islands.
10.

Plaintiff Battalion CLO 2007-I Ltd. is an exempted company with limited

liability incorporated under the laws of the Cayman Islands.
11.

Plaintiff Canpartners Investments IV, LLC is a limited liability company formed

under the laws of California.
12.

Plaintiff Canyon Special Opportunities Master Fund (Cayman), Ltd. is an

exempted company with limited liability incorporated under the laws of the Cayman Islands.
13.

Plaintiff Canyon Capital CLO 2004 1 Ltd. is an exempted company with limited

liability incorporated under the laws of the Cayman Islands.
14.

Plaintiff Canyon Capital CLO 2006 1 Ltd. is an exempted company with limited

liability incorporated under the laws of the Cayman Islands.
15.

Plaintiff Canyon Capital CLO 2007 1 Ltd. is an exempted company with limited

liability incorporated under the laws of the Cayman Islands.
16.

Plaintiff Caspian Corporate Loan Fund, LLC is a limited liability company

formed under the laws of Delaware.
17.

Plaintiff Caspian Capital Partners, L.P. is a limited partnership formed under the

laws of Delaware.
18.

Plaintiff Caspian Select Credit Master Fund, Ltd. is a company with limited

liability formed under the laws of the Cayman Islands.
19.

Plaintiff Mariner Opportunities Fund, LP is a limited partnership formed under

the laws of Delaware.
20.

Plaintiff Mariner LDC is company with limited duration formed under the laws

of the Cayman Islands.

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21.

Plaintiff Sands Point Funding Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
22.

Plaintiff Copper River CLO Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
23.

Plaintiff Kennecott Funding Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
24.

Plaintiff NZC Opportunities (Funding) II Limited is a company with limited

liability incorporated under the laws of the Cayman Islands.
25.

Plaintiff Green Lane CLO Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
26.

Plaintiff 1888 Fund, Ltd. is a company with limited liability incorporated under

the laws of the Cayman Islands.
27.

Plaintiff Orpheus Funding LLC is a limited liability company formed under the

laws of Delaware.
28.

Plaintiff Orpheus Holdings LLC is a limited liability company formed under the

laws of Delaware.
29.

Plaintiff LFCQ LLC is a limited liability company formed under the laws of

Delaware.
30.

Plaintiff Aberdeen Loan Funding, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
31.

Plaintiff Armstrong Loan Funding, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
32.

Plaintiff Brentwood CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
33.

Plaintiff Eastland CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.

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34.

Plaintiff Emerald Orchard Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
35.

Plaintiff Gleneagles CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
36.

Plaintiff Grayson CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
37.

Plaintiff Greenbriar CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
38.

Plaintiff Highland Credit Opportunities CDO, Ltd. is a company with limited

liability incorporated under the laws of the Cayman Islands.
39.

Plaintiff Highland Loan Funding V, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
40.

Plaintiff Highland Offshore Partners, L.P. is a limited partnership formed under

the laws of Bermuda.
41.

Plaintiff Jasper CLO, Ltd. is a company with limited liability incorporated under

the laws of the Cayman Islands.
42.

Plaintiff Liberty CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
43.

Plaintiff Loan Funding IV LLC is a limited liability company formed under the

laws of Delaware.
44.

Plaintiff Loan Funding VII LLC is a limited liability company formed under the

laws of Delaware.
45.

Plaintiff Loan Star State Trust is a trust formed under the laws of the Cayman

Islands.
46.

Plaintiff Longhorn Credit Funding, LLC is a limited liability company formed

under the laws of Delaware.

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47.

Plaintiff Red River CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
48.

Plaintiff Rockwall CDO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
49.

Plaintiff Rockwall CDO II, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
50.

Plaintiff Southfork CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
51.

Plaintiff Stratford CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
52.

Plaintiff Westchester CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
53.

Plaintiff ING Prime Rate Trust is a business trust formed under the laws of

Massachusetts.
54.

Plaintiff ING Senior Income Fund is a statutory trust formed under the laws of

Delaware.
55.

Plaintiff ING International (II) - Senior Bank Loans Euro is a SICAV (Société

d’Investissement à Capital Variable) formed under the laws of Luxembourg.
56.

Plaintiff ING Investment Management CLO I, Ltd. is a company with limited

liability incorporated under the laws of the Cayman Islands.
57.

Plaintiff ING Investment Management CLO II, Ltd. is a company with limited

liability incorporated under the laws of the Cayman Islands.
58.

Plaintiff ING Investment Management CLO III, Ltd. is a company with limited

liability incorporated under the laws of the Cayman Islands.
59.

Plaintiff ING Investment Management CLO IV, Ltd. is a company with limited

liability incorporated under the laws of the Cayman Islands.

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60.

Plaintiff ING Investment Management CLO V, Ltd. is a company with limited

liability incorporated under the laws of the Cayman Islands.
61.

Plaintiff Carlyle High Yield Partners 2008-1, Ltd. is an exempted company with

limited liability incorporated under the laws of the Cayman Islands.
62.

Plaintiff Carlyle High Yield Partners VI, Ltd. is an exempted company with

limited liability incorporated under the laws of the Cayman Islands.
63.

Plaintiff Carlyle High Yield Partners VII, Ltd. is an exempted company with

limited liability incorporated under the laws of the Cayman Islands.
64.

Plaintiff Carlyle High Yield Partners VIII, Ltd. is an exempted company with

limited liability incorporated under the laws of the Cayman Islands.
65.

Plaintiff Carlyle High Yield Partners IX, Ltd. is an exempted company with

limited liability incorporated under the laws of the Cayman Islands.
66.

Plaintiff Carlyle High Yield Partners X, Ltd. is an exempted company with

limited liability incorporated under the laws of the Cayman Islands.
67.

Plaintiff Carlyle Loan Investment, Ltd. is an exempted company with limited

liability incorporated under the laws of the Cayman Islands.
68.

Plaintiff Centurion CDO VI, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
69.

Plaintiff Centurion CDO VII, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
70.

Plaintiff Centurion CDO 8, Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
71.

Plaintiff Centurion CDO 9, Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
72.

Plaintiff Cent CDO 10 Limited is a company with limited liability incorporated

under the laws of the Cayman Islands.

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73.

Plaintiff Cent CDO XI Limited is a company with limited liability incorporated

under the laws of the Cayman Islands.
74.

Plaintiff Cent CDO 12 Limited is a company with limited liability incorporated

under the laws of the Cayman Islands.
75.

Plaintiff Cent CDO 14 Limited is a company with limited liability incorporated

under the laws of the Cayman Islands.
76.

Plaintiff Cent CDO 15 Limited is a company with limited liability incorporated

under the laws of the Cayman Islands.
77.

Plaintiff Venture II CDO 2002, Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
78.

Plaintiff Venture III CDO is a company with limited liability incorporated under

the laws of the Cayman Islands.
79.

Plaintiff Venture IV CDO Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
80.

Plaintiff Venture V CDO Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
81.

Plaintiff Venture VI CDO Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
82.

Plaintiff Venture VII CDO Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
83.

Plaintiff Venture VIII CDO Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
84.

Plaintiff Venture IX CDO Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
85.

Plaintiff Vista Leveraged Income Fund is a company with limited liability

incorporated under the laws of the Cayman Islands.

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86.

Plaintiff Veer Cash Flow, CLO, Limited is a company with limited liability

incorporated under the laws of the Cayman Islands.
87.

Plaintiff Genesis CLO 2007-1 Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
88.

Plaintiff ARES Enhanced Loan Investment Strategy III, Ltd. is a company with

limited liability incorporated under the laws of the Cayman Islands.
89.

Plaintiff Primus CLO I, Ltd. is an exempted company with limited liability

incorporated under the laws of the Cayman Islands.
90.

Plaintiff Primus CLO II, Ltd. is an exempted company with limited liability

incorporated under the laws of the Cayman Islands.
91.

Plaintiff Cantor Fitzgerald Securities is a general partnership formed under the

laws of New York.
92.

Plaintiff Olympic CLO I Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
93.

Plaintiff Shasta CLO I Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
94.

Plaintiff Whitney CLO I Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
95.

Plaintiff San Gabriel CLO I Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
96.

Plaintiff Sierra CLO II Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands.
97.

Plaintiff Rosedale CLO, Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands, BWI.
98.

Plaintiff Rosedale CLO II Ltd. is a company with limited liability incorporated

under the laws of the Cayman Islands, BWI.

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99.

Plaintiff SPCP Group, LLC is a limited liability company formed under the laws

of Delaware.
100.

Plaintiff Stone Lion Portfolio L.P. is a limited partnership formed under the laws

of the Cayman Islands.
101.

Plaintiff Venor Capital Master Fund, Ltd. is a company with limited liability

incorporated under the laws of the Cayman Islands.
Defendants
102.

Defendant 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 Facility lender, as Issuing Lender, and as Swing Line
Lender. In addition, BofA served as Administrative Agent to all of the Lenders under the Credit
Agreement and as Disbursement Agent to all of the Lenders under the Disbursement Agreement.
BofA agreed to fund $100 million under the Revolving Facility.
103.

Defendant Merrill Lynch Capital Corporation is a Delaware corporation with a

principal place of business in New York. Merrill Lynch Capital Corporation, which is now
indirectly owned by BofA, agreed to fund $100 million under the Revolving Facility.
104.

Defendant J.P. Morgan Chase Bank, N.A. is a nationally chartered bank with its

headquarters in New York, New York. J.P. Morgan Chase Bank, N.A. agreed to fund
$90 million under the Revolving Facility.
105.

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 agreed to
fund $100 million under the Revolving Facility.
106.

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 agreed to fund $80 million under the Revolving Facility.

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107.

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 agreed to fund $90 million under the Revolving Facility.
108.

Defendant Sumitomo Mitsui Banking Corporation is a Japanese corporation with

offices in New York, New York. Sumitomo Mitsui Banking Corporation agreed to fund
$90 million under the Revolving Facility.
109.

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

principal place of business in Edinburgh, Scotland. Bank of Scotland agreed to fund
$72.5 million under the Revolving Facility.
110.

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

New York, New York. HSH Nordbank AG agreed to fund $40 million under the Revolving
Facility.
111.

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

office in Chicago, Illinois. MB Financial Bank, N.A. agreed to fund $7.5 million under the
Revolving Facility.
112.

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

principal place of business in Stamford, Connecticut. Camulos Master Fund LP agreed to fund
$20 million under the Revolving Facility.
FACTUAL BACKGROUND
THE FONTAINEBLEAU PROJECT
113.

Between March and June 2007, Plaintiffs or their predecessors were approached

by a syndicate of investment bankers, led by Banc of America Securities and including other
affiliates of the Defendants, to participate in a $1.85 billion bank financing (the “Credit
Agreement Facility”) for the development and construction of the Fontainebleau Resort and
Casino in Las Vegas, Nevada (the “Project”). The Project is designed to be a destination casinoresort on the north end of the Las Vegas Strip, situated on approximately 24.4 acres. The Project
consists of a 63-story glass skyscraper featuring over 3,800 guest rooms, suites and

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condominium units; a 100-foot high three-level podium complex (the “Podium”) housing
casino/gaming areas, restaurants and bars, a spa and salon, a live entertainment theater and
rooftop pools; a parking garage with space for more than 6,000 vehicles; and a 353,000 squarefoot convention center. The Project is also designed to feature retail space (the “Retail Space”)
of approximately 286,500 square-feet, including retail shops, restaurants, and a nightclub. The
Retail Space is being developed by indirect subsidiaries of the Borrower’s parent company (the
“Retail Borrowers”).
114.

The total Project costs were to be funded primarily from cash provided by the

developers of the Project, the proceeds of the $1.85 billion bank financing, the proceeds of a
$675 million 2nd Mortgage Note offering (the “Second Lien Facility”), and proceeds of a
$315 million facility (the “Retail Facility”) provided to the Retail Borrowers to finance
construction of the retail portion of the Project (including $83 million in certain “Shared Costs”
for construction improvements to the Podium which was to be owned by Borrower following
completion of construction).
THE CREDIT AGREEMENT AND DISBURSEMENT AGREEMENT
115.

On June 6, 2007, the Credit Agreement was entered into among numerous

lenders, including Plaintiffs and Defendants, and the Borrower. BofA and its counsel served as
the principal architects of the Credit Agreement and related Loan Documents, including the
Disbursement Agreement. The Credit Agreement included commitments for three kinds of
loans: (a) a $700 million initial term loan facility (the “Initial Term Loan Facility”); (b) a
$350 million delay draw term facility (the “Delay Draw Facility,” and together with the Initial
Term Loan Facility, the “Term Loan Facility”); and $800 million revolving loan facility (the
“Revolving Facility”). The Initial Term Loan Facility was funded upon the closing of the Credit
Agreement in June 2007. The related Second Lien Facility and Retail Facility closed at the same
time.
116.

Obligations outstanding under the Term Loan Facility and the Revolving Facility

are equally and ratably collateralized by mortgages on the real property comprising the Project

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and by security interests on all personal property of the Borrower. The personal property
security interests as well as statutory and/or common law rights of setoff also extend to deposit
accounts, including the Bank Proceeds Account and the Bank Funding Account established
pursuant to the terms of a Master Disbursement Agreement (the “Disbursement Agreement”).
The Disbursement Agreement governs disbursement of all funds under the Credit Agreement,
the Second Lien Facility and the Retail Facility.
117.

Plaintiffs are each lenders under the Term Loan Facility. Lenders under the

Term Loan Facility are referred to herein as “Term Lenders.” Defendants, including BofA, are
each lenders under the Revolving Facility. Lenders under the Revolving Facility are referred to
herein as “Revolving Lenders.” Although certain of the Revolving Lenders are also Term
Lenders, BofA is not a Term Lender. In addition to its capacity as a Revolving Lender, BofA
also served as Administrative Agent to all of the Lenders under the Credit Agreement, and as
Disbursement Agent to all of the Lenders under the Disbursement Agreement.
118.

Each of the lenders who agreed to providing financing under the Credit

Agreement relied upon the obligation of the other lenders to comply with their funding
obligations under the Credit Agreement. The loans available under the Credit Agreement were
the principal source of construction financing for the Project and, along with a completion
guaranty and the Retail Facility, were intended to be virtually the only source of construction
financing remaining after junior sources (equity and second mortgage bonds) were utilized.
Because all lenders would suffer if the amount of financing available for construction proved to
be insufficient to complete the Project (and, as a result, their collateral value would be
destroyed), the Credit Agreement requires that, in the absence of a Stop Funding Notice
(described below) or the termination of a Facility by the Required Lenders following an Event of
Default, each Lender is required to continue to make Loans into the Bank Proceeds Account.
119.

Consistent with that agreement among the Lenders, the Credit Agreement and

other Loan Documents create a two-step mechanism for the Borrower to obtain loan proceeds
under the Term Loan Facility and the Revolving Facility prior to the Opening Date of the

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Project. Under the first step, the Borrowers must submit to the Administrative Agent a notice of
borrowing (the “Notice of Borrowing”) specifying the requested loans and designated borrowing
date. The Credit Agreement requires that the Administrative Agent promptly notify each lender
of a Notice of Borrowing. Once notified, each lender is contractually required to make its prorata share of the requested loans available to the Administrative Agent prior to 10:00 AM on the
designated borrowing date, subject only to identified conditions precedent. Although Revolving
Loans made after construction is completed (referred to in the Credit Agreement as “Direct
Loans”) are expressly subject to conditions precedent in Section 5.3 of the Credit Agreement
(including the requirement that each representation and warranty under the Loan Documents be
true and correct and the absence of a Default or Event of Default), Revolving Loans made during
construction (referred to as “Disbursement Agreement Loans”) and Delay Draw Term Loans are
expressly conditioned “only” upon the conditions precedent in Section 5.2 of the Credit
Agreement (which, unlike Section 5.3, does not include the requirement that each representation
and warranty under the Loan Documents be true and correct, nor the absence of a Default or
Event of Default). The proceeds of Delay Draw Term Loans and Revolving Loans are, under the
2

first step, deposited into the Bank Proceeds Account.
120.

Under the second step, in order to access those funds from the Bank Proceeds

Account to pay for the cost of the Project, the Borrowers must submit an advance request
(typically monthly) pursuant to the Disbursement Agreement (the “Advance Request”). The
Disbursement Agreement establishes: (a) the conditions precedent, which are set forth in Section
3.3 of the Disbursement Agreement, to be satisfied prior to approval of the Advance Request by
the Disbursement Agent; (b) the relative sequencing of disbursements from the proceeds of

2

With respect to the $700 million Initial Term Facility, the funds were deposited into the Bank
Proceeds Account on the Closing Date (June 6, 2007), and thus, were made subject to different
conditions precedent that those applicable to the Delay Draw Term Loans and Revolving Term
Loans.

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various facilities and debt instruments; and (c) the obligations of the various agents to make
disbursements to the Borrowers of loan proceeds from the Bank Proceeds Account.
121.

The Term Lenders are intended third-party beneficiaries of the Disbursement

Agreement, which, in pertinent part, governs the disbursement of the funds loaned by the Term
Lenders. The Disbursement Agreement expressly provides that BofA is granted security
interests in the Bank Proceeds Account, for the benefit of the lenders. (Disbursement
Agreement, § 2.3). The Disbursement Agreement states that the provisions of Article 9 (which
governs the duties and obligations of BofA as Disbursement Agent) are for the benefit of the
Lenders (which includes the Plaintiffs), and that BofA is responsible and liable to the Term
Lenders as a consequence of its performance under the Disbursement Agreement.
(Disbursement Agreement, § 9.10).
122.

As Disbursement Agent and Administrative Agent, BofA assumed responsibility

for the proper administration of the construction loans and disbursement of funds to be used by
the Borrower to construct the Project. BofA agreed to exercise commercially reasonable efforts
and utilize commercially prudent practices in the performance of its duties. Disbursement
Agreement, § 9.1. BofA’s duties included ensuring that funds were disbursed to the Bank
Funding Account only if all of the conditions precedent to disbursement of funds under Section 3
of the Disbursement Agreement were satisfied, including that, as of the Advance Date: (a) each
representation and warranty of each Project Entity in Article 4 was true and correct as if made on
such date; (b) there was no Default or Event of Default under any of the Financing Agreements;
(c) the In Balance Test was satisfied; (d) there had been no development or event since the
Closing Date that could reasonably be expected to have a Material Adverse Effect on the Project;
and (e) the Retail Agent and Retail Lenders under the Retail Facility had made all Advances
required of them under the Advance Request. (Disbursement Agreement, §§ 3.3.2, 3.3.3, 3.3.8,
3.3.11, 3.3.23).
123.

If all of the applicable conditions precedent for the advance of funds were

satisfied, the Disbursement Agreement provided for the Disbursement Agent and the Borrower

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to execute an Advance Confirmation Notice and, with respect to the use of funds in the Bank
Proceeds Account advanced by the Term Lenders, to deliver the notice to BofA as
Administrative Agent. Upon receipt of such notice, BofA would make the advances
contemplated under the Advance Confirmation Notice. (Disbursement Agreement, § 2.4.6).
124.

If not all of the conditions precedent to an Advance were satisfied, or if the

Administrative Agent notified the Disbursement Agent that a Default or Event of Default had
occurred, then the Disbursement Agent was required to provide notice (a “Stop Funding Notice”)
to the Borrowers and each Funding Agent, including the Administrative Agent. (Disbursement
Agreement, § 2.5.1). If a Stop Funding Notice were issued, no disbursements could be made,
and the funds would remain safely in the Bank Proceeds Account until all of the conditions
precedent were satisfied, including the absence of any Default or Event of Default. In addition,
the lenders have no obligation to fund until the circumstances associated with the Stop Funding
Notice have been resolved. (Credit Agreement § 2.4(e)).
125.

Under Section 9.2.3 of the Disbursement Agreement, “if the 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 Business 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, among the powers and duties vested in BofA under the Disbursement
Agreement upon receiving notice of a Default or Event of Default was the power and duty to
issue a Stop Funding Notice.
LEHMAN’S FAILURE TO FUND UNDER THE RETAIL FACILITY
126.

As evidenced by the terms of the Disbursement Agreement, the three “Financing

Agreements” covered by that agreement – the Credit Agreement, the Second Mortgage
Indenture, and the Retail Facility Agreement – are closely interrelated, and the proceeds

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available under each facility were integral to the construction, completion and ultimate success
of the Project.
127.

As a result of the syndication of the Retail Facility, Lehman Brothers Holdings,

Inc. (“Lehman”), which served as Retail Agent, was the largest Retail Lender, responsible for
$215 million, or 68.25%, of the Retail Facility. As of the Closing Date, $125.4 million of the
Retail Facility was advanced, leaving $189.6 million to be advanced. Much of that sum was
earmarked to pay Shared Costs to complete the Podium and to complete the Retail component of
the Project. Thus, the successful completion of the overall Project depended heavily on the
proceeds to be made available pursuant to Lehman’s commitment under the Retail Facility.
128.

In September 2008, Lehman filed for bankruptcy protection. According to a

proof of claim filed by the Retail Borrower in Lehman’s bankruptcy case, beginning in
September 2008 and on four occasions thereafter, Lehman failed to honor “its obligation to fund
a total of $14,259,409.74 under the Retail Facility,” and thereby defaulted in its lending
obligations under the Retail Facility Agreement (the “Lehman Defaults”). Those defaults
prevented satisfaction of numerous conditions precedent to the approval of Advance Requests,
including the following:


Section 3.3.23 of the Disbursement Agreement requires 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.”


Lehman, as Retail Agent and as a Retail Lender, did not make the
Advances required of it pursuant to at least five Advance Requests
between September 2008 and March 2009.



Section 3.3.3 of the Disbursement Agreement provides that “[n]o Default or
Event of Default shall have occurred and be continuing.” A “Default” or “Event
of Default” under the Credit Agreement constitutes a “Default” or “Event of

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Default” under the Disbursement Agreement. (Disbursement Agreement, Ex. A).
Under Section 8(j) of the Credit Agreement, the breach by “any Person” of a
“Material Agreement” constitutes an Event of Default (and, prior to the expiration
of any notice or other grace period, a Default) if such breach could reasonably be
expected to result in a Material Adverse Effect. Schedule 4.24 of the Credit
Agreement lists, as Material Agreements, “[t]he ‘Financing Agreements’ as
defined in the Disbursement Agreement.” Credit Agreement, Schedule 4.24.
That definition of “Financing Agreements” includes the “Facility Agreements,”
which in turn includes the “Retail Facility Agreement.” As stated above, the
failure of the Project Entities to receive material amounts of funding and the
resulting uncertainty over receiving the balance of Lehman’s commitment
threatened completion of the Project.


Accordingly, Lehman’s breach of the Retail Facility was a Default, based
upon Section 8(j) of the Credit Agreement.



Section 3.3.2 requires that each representation and warranty by each Project
Entity in Article 4 be true and correct as if made on such date. One such
representation is that “[t]here is no default or event of default under any of the
Financing Agreements.” (Disbursement Agreement, at § 4.9.1).


That representation was not true and correct when made on or after
September 2008, based upon the Lehman Defaults under the Retail
Facility (one of the Financing Agreements).



Section 3.3.11 requires that, prior to any disbursement, there has 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.


Lehman’s bankruptcy filing, and the uncertainty that Lehman would fulfill
its loan commitment or that any other lender would assume Lehman’s

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commitment under the Retail Facility, threatened the successful
completion of the Project and thus could reasonably be expected to have a
Material Adverse Effect.
129.

BofA, as Disbursement Agent, received notice of the Lehman 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 of the Disbursement Agreement were not satisfied. In
response, BofA refused to do anything, instead asserting that its function as Disbursement Agent
was purely administrative in nature.
130.

BofA refused to address the Lehman Defaults in large part because it wished to

preserve its ongoing business relationship with the Borrower and its principal indirect owners,
including Jeffrey Soffer. For example, BofA was the agent and a lender under a loan facility
used to renovate the Fontainebleau Hotel in Miami, which was indirectly owned by the
Borrower’s indirect parent. BofA also made loans to Turnberry Associates (of which Soffer is a
principal) or its affiliates. The close relationship between BofA on the one hand, and the
Borrower and related parties on the other, was further evidenced by the fact that the Borrower’s
chief financial officer, prior to taking that position, worked for eight years at Banc of America
Securities (which served as an co-lead arranger and joint underwriter of the Credit Agreement).
131.

BofA’s refusal to address the Lehman Defaults continued even after Moodys

Investment Service announced on November 6, 2008 that it had downgraded the Credit
Agreement Facility to B3 from B1. In that announcement, Moodys expressed its opinion that the
outlook was “negative” in recognition of the challenges faced by the Borrowers’ parent in
resolving the potential funding shortfall related to the Lehman Default.
132.

In wrongful and willful derogation of its duties and responsibilities as

Disbursement Agent and Administrative Agent, BofA approved Advance Requests and issued
Advance Confirmation Notices after, and despite notice of, the Lehman Defaults. Likewise,

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BofA, as Administrative Agent, made Advances to the Borrowers pursuant to the Advance
Requests. In total, those Advances (excluding debt service paid to the Lenders) exceeded
$680 million, the last made on or about March 25, 2009 (the “March 25 Advance”). Each
approval and/or Advance by BofA following the date it received notice of the Lehman Defaults
was improper and constituted bad faith, gross negligence and/or willful misconduct on the part of
BofA.
DEFAULT BY FIRST NATIONAL BANK
OF NEVADA UNDER CREDIT AGREEMENT
133.

On July 25, 2008, First National Bank of Nevada, was closed by the Office of

the Comptroller of the Currency. The Federal Deposit Insurance Company (“FDIC”)
subsequently was appointed as receiver. First National Bank of Nevada had made a commitment
of $1,666,666 under the Term Loan Facility and a commitment of $10,000,000 under the
Revolving Facility. According to the Borrower, FDIC has repudiated the commitments of First
National Bank of Nevada under the Credit Agreement. As a result, beginning in January 2009,
the Borrower’s calculation of Available Funds under the In Balance Test was therefore reduced
by the amount of the total commitment by First National Bank of Nevada ($11,666,666).
134.

The FDIC’s repudiation of First National Bank of Nevada’s commitment

constituted, as a matter of law, a breach of that bank’s obligation under the Credit Agreement.
Such a breach by a party to a Material Agreement (which the Credit Agreement was) was a
Default, based upon Section 8(j) of the Credit Agreement. It also prevented the Borrower from
satisfying Section 3.3.2 of the Disbursement Agreement, which conditioned any disbursement
upon the truth of the Borrower’s representations and warranties under Article 4, in particular the
representation and warranty pursuant to Section 4.9.1 that there existed no defaults or events of
default under any of the Financing Documents.
135.

Notwithstanding the fact that the conditions precedent for disbursement under

Section 3.3 of the Disbursement Agreement by virtue of the Default resulting from the FDIC’s
repudiation of the Credit Agreement were not satisfied, BofA wrongfully and willfully continued

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to issue Advance Confirmation Notices, and failed to issue a Stop Funding Notice. Instead, the
amounts requested by the Borrower continued to be disbursed by BofA.
BofA’S CHANGE OF APPROACH AS DISBURSEMENT AGENT
136.

As a result of BofA’s acquisition of Merrill Lynch that closed in December

2008, BofA effectively (through its indirect ownership of Merrill Lynch) doubled its level of
commitment as a Revolving Lender, and became responsible for $200 million – or 25% – of the
total original Revolving Loan commitment.
137.

Prior to February 2009, the Borrowers did not request any advances under the

Revolving Facility (other than for letters of credit), and instead used proceeds of the Initial Term
Loan Facility, the Second Lien Facility and other proceeds to pay Project Costs. As explained
above, during that period of time, BofA willfully and wrongfully disregarded its obligations as
Disbursement Agent and Administrative Agent, taking the position that its role was purely
administrative in nature. That passive approach changed dramatically after February 13, 2009,
when the Borrower submitted an Advance Request that included the first request for an Advance
under the Revolving Facility, in the amount of $68 million.
138.

As a Revolving Lender, BofA was required to finance a portion of that Advance

Request, and thus for the first time faced the prospect of sharing loan exposure with the Term
Lenders if the Project failed. In response to the Advance Request in February 2009, BofA wrote
a detailed letter to the Borrower on Friday, February 20, 2009. BofA began the letter by insisting
upon “strict compliance” with the deadline of the 11th day of the month to submit Advance
Requests established under Section 2.4.1 of the Disbursement Agreement, despite the fact that
three of the previous four Advance Requests, each of which had been accepted, were submitted
late, including as recently as October 16, 2008 and November 17, 2008. Commenting on the
submission of the Advance Request “at a time of continued deterioration of both the national
economy and the Las Vegas marketplace,” BofA also raised numerous questions. Among those
questions was a request to “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

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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.” With the Borrower insisting
upon disbursement of funds no later than February 25, 2009, BofA demanded that the Borrower
supply detailed written responses to the questions by no later than Monday, February 23, 2009 –
the very next business day.
139.

On February 23, 2009, the Borrower sent a response to BofA. In that letter, the

Borrower sidestepped BofA’s request for comment on whether it anticipated that Lehman would
fund its share of the Retail Facility, or on whether the other Retail Lenders intended to cover any
shortfalls. But the Borrower did not (nor could it) deny that Lehman was in default of its
obligations.
140.

Notwithstanding the unanswered questions, and the fact that numerous

conditions to approval of the Advance Request were not satisfied, BofA did not issue a Stop
Funding Notice. Instead, it approved the Advance Request and issued an Advance Confirmation
Notice. The amounts requested by the Borrower accordingly were disbursed.
THE MARCH 2 AND MARCH 3 NOTICES OF BORROWING
141.

On March 2, 2009, the Borrowers issued a notice of borrowing to borrow the

entire amount of $350 million available under the Delay Draw Facility and to borrow
$670 million available under the Revolving Facility (the “March 2 Notice”). The next day, the
Borrowers issued another notice of borrowing to correct a “scrivener’s error” made in calculating
the amount sought under the Revolving Facility (the “March 3 Notice”), reducing the requested
amount to approximately $656 million. Both notices caused the Delay Draw Facility to be fully
drawn.
142.

As described above, the lenders under the Credit Agreement expressly agreed

among themselves and with the Borrower that the Revolving Loans (those that were
Disbursement Agreement Loans) and Delay Draw Loans are not, at the time of the borrowing
request, conditioned on the absence of any Defaults or Events of Default (as that term is defined
in the Credit Agreement), nor conditioned on the truth and correctness of the representations and

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warranties in the Loan Documents. Rather, the Delay Draw Facility lenders and the Revolving
Facility lenders could refuse to fund their obligations only if their commitments were validly
terminated by the Required Lenders of a loan facility in accordance with section 8 of the Credit
Agreement following an Event of Default, or pursuant to Section 2.4 of the Credit Agreement, if
BofA as Disbursement Agent issued a Stop Funding Notice to the Administrative Agent.
143.

As of March 2 and March 3, the Revolving Lenders had not terminated their

commitment, and BofA had not issued a Stop Funding Notice. Accordingly, because the Delay
Draw Facility was fully drawn, the Revolving Lenders were obligated to fund their commitment.
Although BofA submitted the March 2 Notice and the March 3 Notice to the Lenders, it stated
that the notices did not comply with the terms of the Credit Agreement. BofA advised the
lenders that an ad hoc steering committee formed by BofA supported BofA’s position.
144.

In its correspondence to the Borrowers, BofA took the position that the March 2

Notice and the March 3 Notice did not comply with the Credit Agreement because they
contained simultaneous requests for borrowing under both the Delay Draw Facility and the
Revolving Facility. A simultaneous request for loans under the two facilities, however, is not
prohibited under and is consistent with the Credit Agreement.
145.

The pretext for BofA’s position was Section 2.1(c)(iii) of the Credit Agreement,

which provides that no more than $150 million of Revolving Loans can be outstanding unless the
Delay Draw Facility has been “fully drawn.” BofA asserted that “fully drawn” meant “fully
funded” rather than “fully requested.” According to BofA, borrowing under the Revolving
Facility is limited to $150 million unless and until each of the Term Lenders fully funded its
commitment under the Delay Draw Facility.
146.

Significantly, the interpretation of Section 2.1(c)(iii) put forward by BofA in

early March 2009 was completely at odds with BofA’s historical approval of each prior Advance
Request. As noted above, a condition precedent to BofA’s approval of any Advance Request is
the satisfaction of the “In Balance Test,” a critical calculation that demonstrates whether the
remaining available financing is sufficient to cover the remaining anticipated costs required to

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complete the Project. The In Balance Test is satisfied when “Available Funds” exceed
“Required Costs.” (Disbursement Agreement, Ex. A). One component of “Available Funds” is
“Bank Revolving Availability,” defined to mean “as of each date of determination, the
aggregate principal amount available to be drawn on that date under the Bank Revolving
Facility.” (Disbursement Agreement, Ex. A) (emphasis added).
147.

Each of the prior Advance Requests approved by BofA was supported by an In

Balance Report that included “Bank Revolving Availability” equal to the full amount of the
Revolving Facility – $800 million (reduced to $790 million in January 2009 after First National
Bank of Nevada went into receivership) – despite the fact that, at such time, the Delay Draw
Facility was not fully funded. Had the full amount of the Revolving Facility not been included in
each of the prior In Balance Report calculations, the resulting calculations would have
demonstrated that the Project was at all times enormously out of balance. As a result, BofA
would have been prevented from making any of the prior Advance Requests, and the Project
never could have been constructed.
148.

In order to allow the full amount of the Revolving Facility to be included in the

In Balance calculation, however, BofA had to conclude that the entire Revolving Facility was
“available to be drawn on th[e] date” of the In Balance Test determination. BofA could not
reach this conclusion unless it interpreted “drawn” to mean “requested.” “Drawn” could not
mean “funded” because, by virtue of the fact that the Borrower had never previously requested
the full amount of the Revolving Facility (an obvious condition precedent to its funding), that
amount was never available to be funded as of the date of any Advance Request. On the other
hand, because the Revolving Facility at all times remained unfunded, the entire amount was
always available to be requested. Thus, the term “drawn,” as used in the definition of Bank
Revolving Availability, and as applied by BofA when it approved all prior Advance Requests,
can only mean “requested.”
149.

Similarly, only if BofA understood the term “drawn,” as used under Section

2.1(c)(iii) in referring to the Delay Draw Facility, to mean “requested” rather than “funded,”

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would it have been justified in concluding (as it repeatedly did) that the full amount of the
Revolving Facility was “available to be drawn” as of the date of each Advance Request. If BofA
understood “drawn” as used in Section 2.1(c)(iii) to mean “funded” rather than “requested,” then
the Bank Revolving Availability – the amount “available to be drawn on th[e] date” of each In
Balance Test – could not have exceeded $150 million unless and until the Delay Draw Loans
were fully funded. Until that occurred (which it never did), the In Balance Test would never be
satisfied, and there would never be disbursements to fund construction of the Project. That was
not the intent of the parties who drafted the Credit Agreement and other Loan Documents.
150.

Notwithstanding the fact that satisfaction of the In Balance Test is a condition

precedent to any Advance (past, present or future) under the Disbursement Agreement, BofA did
not issue a Stop Funding Notice on March 3 or at any time thereafter. Under BofA’s new, afterthe-fact position that “drawn” means “funded,” however, the Borrower had never satisfied the In
Balance Test and all prior disbursements were improper. BofA was therefore obligated to (but
did not) issue a Stop Funding Notice.
151.

Faced with BofA’s refusal to process the March 2 Notice and the March 3

Notice, the Borrower issued a revised Borrowing Notice on March 9, 2009, directed solely to the
Delay Draw Facility lenders for the full amount of their $350 million commitment (a figure that
included the $1,666,666 portion committed by First National Bank of Nevada). That Borrowing
Notice was attached to a letter from the Borrower to BofA in which the Borrower asserted that
the Lenders were, by their actions or inactions in response to the March 2 Notice and March 3
Notice, in default of the Loan Documents. The Borrower also reiterated its concern that BofA
was acting in its own self-interest and against the interest of the Borrower and several of the
other lenders.
152.

Under section 2.1(b)(iii) of the Credit Agreement, any proceeds of the Delay

Draw Facility must be used first to repay any “then outstanding” Revolving Loans. At the time
of the March 9 Borrowing Notice, $68 million had been advanced by the Revolving Lenders in
February 2009. Thus, as a Revolving Lender, BofA stood to benefit by failing to issue a Stop

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Funding Notice prior to March 9, 2009, because such notice would have suspended any Delay
Draw Loans otherwise to be used to repay BofA’s 25% share of the $68 million of then
“outstanding” Revolving Loans.
153.

Acting at all times in bad faith and with gross negligence and willful

misconduct, BofA processed the March 9 Notice and sent it to all Delay Draw Facility lenders.
BofA advised the Lenders that the revised Borrowing Notice complied with the Credit
Agreement and that the Delay Draw Lenders were required to fund. In the absence of any Stop
Funding Notice that would have suspended their obligation to fund, the Delay Draw Term
Lenders could not rely on the failure to fund by the Revolving Lenders, or by any individual
Delay Draw Term Lenders or upon the Lehman default. That is because, under Section 2.23(g)
of the Credit Agreement, “the obligations of the Lenders to make Term Loans and Revolving
Loans . . . are several and not joint. The failure of any Lender to make any Loan . . . shall not
relieve any other Lender of its corresponding obligation to do so . . . .” Thus, the Delay Draw
Term Lenders were left with no choice but to fund, or else face a claim for breach of contract.
154.

Accordingly, on or about March 10, 2009 or thereafter, Plaintiffs complied with

their Delay Draw Facility commitments and honored their obligations to fund the Delay Draw
Facility. BofA used a portion of those funds to immediately repay itself and the other Revolving
Lenders the then-outstanding balance of the $68 million under the Revolving Facility, thereby
unjustly enriching BofA and the other Defendants, to the detriment of the Plaintiffs.
155.

On March 16, 2009, the Borrower sent another letter to BofA in which it stated

its continued belief that the lenders who had not funded were in default of their funding
obligations. Shortly thereafter, on March 19, 2009, certain Term Lenders wrote to BofA to
demand that the Revolving Lenders, including BofA, honor the March 2 and 3 Notice of
Borrowing. They explained why BofA’s newly-minted interpretation of “fully drawn” was
wrong. They also noted the conflict of interest that BofA had as a result of its Revolving
Commitment exposure. The Term Lenders demanded that BofA either correct its conduct or
resign. At that time, BofA refused to do either.

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THE MARCH 25 ADVANCE
156.

On March 11, 2009, the Borrowers sent BofA the March 25 Advance Request,

requesting disbursement in the amount of $138 million (of which about $4 million was for debt
service under the Credit Agreement). In response, BofA sent correspondence in which it once
again reserved the right to demand “strict conformity” with the Disbursement Agreement, and
expressed to the Borrower the need to conclude “our review of the substance of those
documents.” Because BofA used the proceeds of the Delay Draw Loans to repay to itself and the
other Revolving Lenders the full amount of the then-outstanding $68 million in Revolving
Loans, none of the funds to be disbursed under the March 25 Advance Request included funds to
be loaned by the Revolving Lenders. Without its own money on the line, BofA reverted to the
laissez-faire approach that it had employed before February 2009, prior to the Borrowers’ first
request for Revolving Loans.
157.

As of no later than March 23, 2009, BofA was on notice, from the Borrower and

otherwise, that certain of the Delay Draw Lenders had not funded their portion of the
commitment under the Delay Draw Facility in response to the March 9 Notice. Section 1.1 of
the Credit Agreement defines a “Lender Default” as “the failure or refusal (which has not been
retracted in writing) of a Lender to make available (i) its portion of any Loan required to be made
by such Lender hereunder . . . .” As of March 25, the amount of the unfunded commitment
totaled about $23.3 million (of which $1.67 million was attributable to First National Bank of
3

Nevada). That unfunded commitment precluded BofA from disbursing any funds pursuant to
the March 25 Advance Request for a number of independent reasons.
158.

First, because the Credit Agreement, along with the Retail Facility, is one of the

Material Agreements on Schedule 4.24, the failure of any Delay Draw Lender to fund its
commitment was a Default by virtue of Section 8(j) of the Credit Agreement. (The same was, of

3

A portion of that amount was subsequently funded, thereby curing any breach with respect to
those Term Lenders.

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course, true of the failure of the Revolving Lenders to fund on March 3). That meant that at least
one of the conditions precedent for disbursement of funds, Section 3.3.3 of the Disbursement
Agreement, clearly had not been satisfied.
159.

Second, the Borrower could not, based on the failure as of March 25 to fund the

$23,333,333 in Term Loans, represent and warrant to be true and correct that no default existed
under the Financing Agreements (here, the Credit Agreement), as required under Section 4.9.1 of
the Disbursement Agreement. (The same is true based on the failure of the Revolving Lenders to
fund). Thus, the Borrower could not satisfy the conditions under Section 3.3.2 of the
Disbursement Agreement.
160.

Third, under the new interpretation of Section 2.1(c)(iii) of the Credit Agreement

adopted by BofA and the other Revolving Lenders, the Revolving Lenders claimed to be relieved
of any obligation to fund more than $150 million of their $800 million commitment until the
Delay Draw Facility was fully “funded.” The position of BofA and the other Revolving Lenders
that no more than $150 million of the Revolving Facility was available to fund the Project if any
Delay Draw Lender failed to fund its commitment, and the Revolving Lenders’ ongoing refusal
to fund, clearly constituted a change in the economics or feasibility of constructing the Project
that could reasonably be expected to have a Material Adverse Effect, thereby precluding
satisfaction of Section 3.3.11 of the Credit Agreement.
161.

Fourth, the Borrower could not satisfy the In Balance Test. On March 23, 2009,

the Borrowers advised BofA that it would be submitting a calculation of the In Balance Test
reflecting a razor-thin cushion of only $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). Depending on whether “fully drawn” was interpreted to mean “fully
funded” or “fully requested,” either the $750 million or the $21,666,666 could be included as
Available Funds – but not both. If “fully drawn” meant “fully funded,” then the “Bank

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Revolving Availability” under the In Balance Test could not exceed $150 million unless and
until the Delay Draw Facility was in fact fully funded, thereby causing the In Balance Test to fail
by a spectacular margin. If, on the other hand, “fully drawn” meant “fully requested,” then the
$21,666,666 in Term Loans that were requested but not funded would be excluded. That 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.” (Disbursement
Agreement, Ex. A)(emphasis added). If “drawn” meant “requested,” then the “undrawn portion
of the Delay Draw Term Loans” was zero as of March 25, 2009. Either way, the Borrower could
not satisfy the In Balance Test, a condition to disbursement under Section 3.3.8 of the
Disbursement Agreement.
162.

In short, there was a myriad of facts – all known to BofA, and none requiring

any investigation, additional facts, or exercise of discretion by BofA – that precluded satisfaction
of the conditions precedent necessary for BofA to approve the March 25 Advance Request and
disburse the proceeds that had been advanced by the Term Lenders. Yet BofA knowingly and
intentionally chose to disregard those facts and to shirk its obligations as Disbursement Agent.
163.

Instead, in a March 23 letter to Fontainebleau lenders posted on Intralinks, BofA

flip-flopped yet again and took an entirely new position: “since the Borrower had requested all
of the Delay Draw Term Loans and almost all of the loans had funded,” the Borrowers could
now request Revolving Loans in excess of $150 million. Under BofA’s new position, “fully
drawn” now meant “almost fully funded.” Because “almost all” of the Delay Draw Term Loans
had funded, BofA opined the entire amount of the Revolving Loan Facility could be used to
calculate “Bank Revolving Availability.” The letter read in pertinent part:
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. As a result, we would permit the relevant portion of the Revolving
Commitment to be reflected in Available Funds. (Emphasis added)

-29-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 30 of 39

164.

Notably, in its third interpretive iteration, BofA proposed to redefine “fully

drawn” to mean “almost fully funded” even though few, if any, of the other Revolving Lenders
had indicated that they agreed with BofA’s position, let alone unconditionally waived any
argument that they were not required to fund the full amount of their commitment because of the
failure of certain Delay Draw Term Lenders to fund. The March 23 letter itself recognizes the
“divergence of opinions” as of that date among the Revolving Lenders. Indeed, within a week of
the disbursement under the March 25 Advance Request, BofA negotiated an Interim Agreement
with the Borrower, dated April 1, 2009 and circulated to Term Lenders on April 3, 2009, under
which any consent of the Revolving Lenders to treat the Delay Draw Term Loans as “fully
drawn” was conditioned upon the Borrowers’ agreement to limit any requests under the
Revolving Loans in April and May 2009 to the amount of the Advance Requests plus $5 million
for each month. Under the Interim Agreement, “Bank Revolving Availability” on the dates of
those Advance Requests would have been capped at an amount far less than the total amount of
the Commitment.
165.

By virtue of the inability of the Borrowers to satisfy numerous conditions under

Section 3.3 of the Disbursement Agreement, BofA was not authorized to approve the March 25
Advance Request nor issue an Advance Confirmation Notice, and was instead obligated to issue
a Stop Funding Notice. In breach of its duties as Disbursement Agent, BofA issued the Advance
Confirmation Notice and, as Administrative Agent, disbursed $134 million in proceeds that had
been advanced by the Term Lenders, including Plaintiffs.
EVENTS SUBSEQUENT TO THE MARCH 25 ADVANCE
166.

On or about April 13, 2009, shortly after Plaintiffs’ funding of the Delay Draw

Facility and the release of approximately $134 million of those funds from the Bank Proceeds
Account, the Borrowers advised BofA and the Lenders that it could not meet the In Balance Test,
based upon a substantial increase in the figure they used to calculate Required Costs.
167.

On April 20, 2009, BofA, in its capacity as Administrative Agent, sent a letter to

the Borrower, the Lenders and other parties, in which BofA advised that “the Required Facility

-30-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 31 of 39

Lenders under the Revolving Credit Facility have determined that one or more Events of Default
have occurred and are continuing . . . .” BofA did not, in that letter or in response to a letter sent
by certain Term Lenders the following day, identify those Events of Default that had been
determined to have occurred. To the extent any Events of Default (or Defaults) had in fact
occurred and were continuing on that date, any such Events of Default (or Defaults) were known
or should have been known to BofA long before March 2009, and BofA breached its duties as
Disbursement Agent and Administrative Agent by failing to communicate them to the Term
Lenders, failing to issue a Stop Funding Notice, or failing to take any other required action.
168.

Pursuant to Section 8 of the Credit Agreement, BofA provided notice that the

Revolving Facility commitment was “terminated effectively immediately.” Notably, BofA did
not purport to make its termination retroactive to a date prior to the March 2 Notice and March 3
Notice, reflecting BofA’s understanding that such retroactive termination was not a remedy
available under the Credit Agreement or applicable law.
169.

On April 21, 2009, the Borrower submitted a Notice of Borrowing (the “April 21

Notice”) to BofA, drawing $710 million under the Revolving Facility. In a separate letter sent
that same day by Borrower’s counsel to BofA, the Borrower disputed the existence of any Events
of Default under the Credit Agreement. If the Borrower were able to demonstrate that no Events
of Default under the Credit Agreement had occurred or were continuing as of April 20, 2009,
then Defendants were not authorized to terminate the commitment, and were obligated to fund
$710 million in response to the April 21 Notice. Defendants did not provide such funding.
170.

BofA’s failure to issue a Stop Funding Notice and its approval of the prior

Advance Requests was in bad faith and constituted gross negligence and willful misconduct.
BofA promoted its own self-interest, to the detriment of the Term Lenders, by: 1) causing the
Revolving Lenders to refuse to fund their Revolving Loans, thereby reducing the collateral
available to the Term Lenders; 2) causing the Delay Draw Lenders to fund their Loans, thereby
enabling the repayment of $68 million in Revolving Loans and increasing the collateral available
to the Revolving Lenders on account of their existing claims arising from previously issued

-31-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 32 of 39

letters of credit under the Revolving Facility; and 3) causing disbursements to be made from the
Bank Proceeds Account to allow for construction to continue on the Project. All of those events
dramatically improved the negotiating leverage of BofA and other Revolving Lenders and
reduced the negotiating leverage of the Term Lenders, thereby positioning BofA to seek
concessions from both the Borrower and the Term Lenders in exchange for providing the funds
that already had been committed. Indeed, BofA applied that leverage to negotiate a term sheet
with the Borrower, circulated to the Term Lenders in mid-May 2009, under which the Revolving
Lenders would have obtained numerous concessions adverse to the interests of the Term
Lenders. That proposal failed only because certain of the Revolving Lenders other than BofA
were unwilling to advance funds even on those concessionary terms.
171.

On or about May 6, 2009, after having succeeded in maximizing its leverage

against the Term Lenders, BofA notified the lenders of its resignation as Disbursement Agent
and Administrative Agent.
172.

As a consequence of Defendants’ wrongful and willful refusal to fund and their

termination of the Revolving Facility commitments, the Project has been derailed and the value
of the collateral securing Plaintiffs’ loans has been substantially diminished. Moreover, BofA’s
failure to perform its obligations as Disbursement Agent and Administrative Agent not only
reduced the amount and value of the collateral securing Plaintiffs’ loans, but also required
Plaintiffs to advance Delay Draw Loans that, but for BofA’s failure to satisfy its duties, would
have been suspended and ultimately terminated. Accordingly, Plaintiffs have suffered
substantial damages in an amount based upon their pro rata share of the funds wrongfully
disbursed from the Bank Proceeds Account and their pro rata share of the Delay Draw Loans for
which they seek compensation.
COUNT I
Breach of the Disbursement Agreement Against BofA
173.

Plaintiffs reallege and incorporate each and every allegation set forth in

paragraphs 1 through 172 herein.

-32-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 33 of 39

174.

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

BofA agreed to act as Bank Agent and Disbursement Agent. The Disbursement Agreement was
intended to directly benefit Plaintiffs.
175.

Pursuant to the terms of the Disbursement Agreement, BofA had a duty to

exercise commercially reasonable efforts and use commercially prudent practices in performing
its obligations under the Disbursement Agreement, including its duty to fund Advance Requests
if, but only if, all conditions precedent to such funding were met and its corresponding duty to
issue Stop Funding Notices if all such conditions were not met or if there existed any Defaults or
Events of Default.
176.

Beginning with Advance Requests made in September 2008, and continuing

through the March 25 Advance Request, BofA materially breached its duties under the
Disbursement Agreement by improperly approving Advance Requests that failed to meet one or
more of the conditions precedent under Section 3.3 of the Disbursement Agreement, improperly
issuing Advance Confirmation Notices, improperly failing to issue Stop Funding Notices as a
result of the failure of conditions precedent to these Advance Requests and Defaults, and
improperly disbursing funds from the Bank Proceeds Account pursuant to such deficient
Advance Requests.
177.

In breaching its duties under the Disbursement Agreement as set forth herein,

BofA’s actions constituted bad faith, gross negligence and willful misconduct, and favored its
own interests over those of the Term Lenders.
178.

Plaintiffs have suffered injury as a result of those breaches because, as a result of

BofA’s approval of the Advance Requests and failure to issue Stop Funding Notices, the amount
and value of Plaintiffs’ collateral has been and continues to be diminished, and Plaintiffs have
been required to fund the Delay Draw Loans. BofA’s liability to Plaintiffs is not limited under
Section 9.10 of the Disbursement Agreement by virtue of the fact that: (a) the limitation of
liability does not apply to claims asserted by Plaintiffs; (b) the limitation of liability does not

-33-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 34 of 39

apply to the conduct of BofA for which BofA is liable; and (c) BofA’s bad faith, gross
negligence and willful misconduct are not subject to any limitation on liability.
COUNT II
Breach of the Credit Agreement Against All Defendants
179.

Plaintiffs reallege and incorporate each and every allegation set forth in

paragraphs 1 through 172 herein.
180.

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

Defendants agreed to fund $790 million under the Revolving Facility.
181.

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

under the Credit Agreement. Plaintiffs have performed all obligations required of them under
the Credit Agreement.
182.

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.
183.

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

continue to be, obligated to honor the Notices of Borrowing.
184.

In the alternative, in the event that it is judicially determined that, prior to

April 21, 2009, no Events of Default under the Credit Agreement occurred that would authorize
termination of the Revolving Facility commitment, then Defendants also were required to fund
the sum of $710 million under the April 21 Notice.
185.

The Defendants’ failure to honor the Notices of Borrowing constitutes a material

breach of their obligations under the Credit Agreement.
186.

By repudiating their obligations to fund under the Revolving Facility, the

Defendants have breached the Credit Agreement.
187.

Plaintiffs, as parties to the Credit Agreement, are entitled to seek damages

against Defendants for their breach of the Credit Agreement.

-34-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 35 of 39

188.

Plaintiffs 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 Facility, the amount and
value of Plaintiffs’ collateral has been and continues to be diminished.
COUNT III
For Breach of the Implied Covenant of Good Faith and Fair Dealing Against BofA
189.

Plaintiffs reallege and incorporate each and every allegation set forth in

paragraphs 1 through 172 herein.
190.

The Disbursement Agreement contained an implied covenant of good faith

which prohibited BofA, in its capacities as Administrative Agent and Disbursement Agent, from
preferring its own interests and the interests of the Revolving Lenders over the interests of the
Term Lenders.
191.

Defendants owed the implied covenant of good faith to Plaintiffs, who are

intended third-party beneficiaries under the Disbursement Agreement.
192.

BofA breached the implied covenant of good faith by: (a) preferring its own

interests and the interests of the Revolving Lenders (including BofA) over the interests of Term
Lenders when it improperly approved Advance Requests, issued Advance Confirmation Notices,
failed to issue Stop Funding Notices, and caused the disbursement of funds from the Bank
Proceeds Account; and (b) failing to communicate information to the Term Lenders regarding
Events of Default that were known of should have been known to BofA.
193.

Plaintiffs have suffered injury as a result of BofA’s breach of the implied

covenant of good faith. BofA’s liability to Plaintiffs is not limited under Section 9.10 of the
Disbursement Agreement by virtue of the fact that: (a) the limitation of liability does not apply
to claims asserted by Plaintiffs; (b) the limitation of liability does not apply to the conduct of
BofA for which BofA is liable; and (c) BofA’s bad faith, gross negligence and willful
misconduct are not subject to any limitation on liability.

-35-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 36 of 39

COUNT IV
Breach of the Implied Covenant of
Good Faith and Fair Dealing Against All Defendants
194.

Plaintiffs reallege and incorporate each and every allegation set forth in

paragraphs 1 through 172 herein.
195.

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

Defendants agreed to fund $790 million under the Revolving Facility.
196.

The Credit Agreement contains an implied covenant of good faith and fair

dealing. The covenant is intended to prevent parties to a contract from destroying or injuring the
right of other parties to enjoy the fruits of the contract.
197.

Defendants owed Plaintiffs a duty of good faith and fair dealing as parties to the

same Credit Agreement.
198.

BofA as Administrative Agent and the other Defendants breached the implied

covenant by adopting a contrived construction of the Credit Agreement in order to justify their
refusal to fund the March 2 Notice and the March 3 Notice.
199.

Plaintiffs have performed all obligations required of them under the Credit

Agreement.
200.

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

as a result of the Defendants’ refusal to honor their obligation to fund under the Revolving
Facility, the amount and value of Plaintiffs’ collateral has been and continues to be diminished.
Furthermore, Plaintiffs have been prevented from receiving the benefits of their bargain under
the contract because their ability to obtain repayment on their loans has been endangered.
COUNT V
For Declaratory Relief Against BofA
201.

Plaintiffs reallege and incorporate each and every allegation set forth in

paragraphs 1 through 172 herein.
202.

A dispute has arisen between Plaintiffs and BofA regarding BofA’s obligations

to Plaintiffs as intended third-party beneficiaries under the Disbursement Agreement. Plaintiffs

-36-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 37 of 39

contend that BofA has breached that agreement by approving the Advance Requests and by
failing to issue a Stop Funding Notice. Plaintiffs are informed and believe and thereon allege
that BofA contends that it has acted in good faith and in compliance with its obligations under
the Disbursement Agreement.
203.

A judicial determination is therefore necessary to resolve this dispute and

ascertain the respective rights of the parties with regard to the actions and agreements referenced
in this complaint.
COUNT VI
For Declaratory Relief Against All Defendants
204.

Plaintiffs reallege and incorporate each and every allegation set forth in

paragraphs 1 through 172 herein.
205.

A dispute has arisen between Plaintiffs and Defendants regarding their

respective rights and obligations under the Credit Agreement. Plaintiffs contend that Defendants
have breached this agreement by failing to fund and by terminating their loan commitments
under the Revolving Facility. Plaintiffs are informed and believe and thereon allege that
Defendants contend that they have acted in good faith and in compliance of their obligations
under the Credit Agreement.
206.

A judicial determination is therefore necessary to resolve this dispute and

ascertain the respective rights of the parties with regard to the actions and agreements referenced
in this complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them,
(a)

For compensatory damages in an amount subject to proof at trial.

(b)

For a declaration that BofA has breached its contractual duties under the

Disbursement Agreement as set forth above entitling Plaintiffs to damages in an amount subject
to proof at trial.

-37-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 38 of 39

(c)

For a declaration that Defendants have breached their contractual duties under the

Credit Agreement as set forth above entitling Plaintiffs to damages in an amount subject to proof
at trial.
(d)

For a declaration that Plaintiffs are excused from performance of any obligations

owing to Defendants under the Credit Agreement.
(e)

For a declaration that any claims asserted by Defendants against the Borrower

should be disallowed pursuant to 11 U.S.C. § 502(b).
(e)

For an award of the costs of suit including attorneys’ fees to the extent available.

(f)

For any further relief as this Court deems just and proper.
JURY DEMAND

Plaintiffs demand a trial by jury for all issues so triable.

-38-

Case 1:09-md-02106-ASG Document 15 Entered on FLSD Docket 01/15/2010 Page 39 of 39

DATED: January 15, 2010

Respectfully submitted,
/s/ David A. Rothstein
David A. Rothstein
Fla. Bar No.: 056881
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive
Penthouse 2B
Miami, FL 331343
Telephone:
[phone]
Facsimile:
[phone]
-andHENNIGAN BENNETT & DORMAN LLP
J. Michael Hennigan (pro hac vice)
Kirk D. Dillman (pro hac vice)
865 S Figueroa Street
Suite 2900
Los Angeles, CA 90017
Email: [e-mail]
[e-mail]
Attorneys for Plaintiffs,
Avenue CLO Fund, Ltd., et al.

771957

-39-

Case 1:09-md-02106-ASG Document 16 Entered on FLSD Docket 01/19/2010 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-2106-CIV-GOLD/McALILEY
IN RE:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
This document applied to all actions.
________________________________/
MDL ORDER NUMBER FIVE; GRANTING
MOTION FOR SUBSTITUTION OF COUNSEL [DE 14]
THIS CAUSE came on before the Court on MB FINANCIAL BANK, N.A. Motion for
Order Approving Stipulation for Substitution of Counsel [DE 14]. Having reviewed the
Motion and being otherwise fully advised, it is hereby
ORDERED AND ADJUDGED that:
(1) The Motion [DE 14] is GRANTED.
(2) FURR AND COHEN, P.A. is relieved of all further responsibility for the defense
of the members cases comprising this MDL.
(3) All further papers in this matter shall be served upon the law firm of Astigarraga,
Davis, Mullins & Grossman at 701 Brickell Ave., 16th Floor, Miami, FL 33131.
DONE AND ORDERED at Chambers in Miami, Florida this 19th day of January,
2010.
____________________________________
HON. ALAN S. GOLD
U.S. DISTRICT JUDGE
cc:
Counsel of record

Case 1:09-md-02106-ASG Document 17 Entered on FLSD Docket 01/20/2010 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV–GOLD/MCALILEY
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This Document Relates to:

No. 09 Civ. 8064 (Southern District of New York)
No. 09 Civ. 1047 (District of Nevada)

NOTICE OF APPEARANCE
OF McDERMOTT WILL & EMERY LLP AS COUNSEL
FOR DEFENDANT CAMULOS MASTER FUND, L.P.
PLEASE TAKE NOTICE that the undersigned hereby appears in this proceeding as
counsel for Camulos Master Fund, L.P., and requests that all papers be served upon the
undersigned at the address provided below.
Dated: Miami, Florida
January 20, 2010

Respectfully submitted,
MCDERMOTT WILL & EMERY LLP
__/s/ Bruce J. Berman_______________
Bruce J. Berman (Fla. Bar #159280)
201 South Biscayne Boulevard, Suite 2200
Miami, Florida 33131-4336
[phone] (tel)
[phone] (fax)
[e-mail]
Andrew B. Kratenstein, Esq.*
Michael R. Huttenlocher, Esq.*
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10173
[phone] (tel)
[phone] (fax)
[e-mail]
[e-mail]
Attorneys for Defendant Camulos Master Fund, L.P.
* Motions for admission pro hac vice forthcoming.

Case 1:09-md-02106-ASG Document 17 Entered on FLSD Docket 01/20/2010 Page 2 of 5

OF COUNSEL:
Nicholas J. Santoro
Santoro, Driggs, Walch, Kearney, Johnson &
Thompson
400 S. Fourth Street
3rd Floor
Las Vegas, NV 89101
[phone] (tel)
[phone] (fax)
[e-mail]

To: Please see attached certificate of service.

-2-

Case 1:09-md-02106-ASG Document 17 Entered on FLSD Docket 01/20/2010 Page 3 of 5

CERTIFICATE OF SERVICE
I certify that on this 20th day of January, 2010, I caused a copy of the foregoing NOTICE
OF APPEARANCE to be served on counsel for all parties as follows:
VIA ECF ELECTRONIC FILING SYSTEM OR FIRST CLASS MAIL (as designated)
Sarah A. Harom
Bailey Kennedy
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
[phone]

Scott Louis Baena
Jeffrey I. Synder
Bilzine Bumberg Baena Price & Axelrod
200 S. Biscayne Blvd., Ste. 2500
Miami, FL 33131-2336

Attorneys for Barclays Bank PLC, Deutsch
Bank Trust Co. Americas, JP Morgan Chase
Bank, N.A., Royal Bank of Scotland PLC
Susan Williams Scann
Deaner, Deaner, Scann, Malan & Larsen
720 S. Fourth Street, Ste. 300
Las Vegas, NV 89101
[phone]

Attorneys for Fontainebleau Las Vegas

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

Attorneys for Avenue CLO Fund, LTD., et al.
Alvin S. Goldstein
Furr & Cohen
2255 Glades Road
Ste. 337-W One Boca Place
Boca Raton, FL 33431
[phone]
Attorneys for MB Financial Bank, N.A.

Attorneys for Avenue CLO Fund, LTD., et al.
Mark D. Bloom
John B. Hutton, III
Greenberg Traurig
1221 Brickell Avenue
Miami, FL 33131
[phone]
Attorneys for Barclays Bank PLC, Deutsch
Bank Trust Co. Americas, JP Morgan Chase
Bank, N.A., Royal Bank of Scotland PLC

-3-

Case 1:09-md-02106-ASG Document 17 Entered on FLSD Docket 01/20/2010 Page 4 of 5

Bruce Bennett
Kirk Dillman
J. Michael Hennigan
Sidney P. Levinson
Peter J. Most
Lauren A. Smith
Michael C. Schneidereit
Hennigan Bennett & Dorman LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017
[phone]
Attorneys for Avenue CLO Fund, LTD., et al.
Jed I. Bergman
David M. Friedman
Marc E. Kasowitz
Seth A. Moskowitz
Kasowitz Benson Torres & Friedman LLP
1633 Broadway
New York, NY 10019
[phone]

Kevin M. Eckhardt
Craig V. Rasile
Hunton & Williams
1111 Brickell Ave., Ste. 3500
Miami, FL 33131
[phone]
Attorneys for Bank of America, N.A.; Bank of
Scotland PLC; Barclays Bank PLC; Deutsche
Bank Trust Co. Americas; HSH Nordbank
AG, New York Branch; JP Morgan Chase
Bank, N.A.; Merrill Lynch Capital
Corporation; The Royal Bank of Scotland
PLC
Arthur Linker
Kenneth E. Noble
Anthony L. Paccione
Katten Muchin Rosenman LLP
575 Madison Ave.
New York, NY 10022
[phone]
Attorneys for Bank of Scotland PLC

Attorneys for Fontainebleau Las Vegas LLC
Aaron Rubenstein
Philip A. Geraci
Andrew A. Kress
W. Stewart Wallace
Kaye Scholer LLP
425 Park Avenue
12th Floor
New York, NY 10022
[phone]

Laury M. Macauley
Lewis and Roca LLP
50 West Liberty Street
Reno, NV 89501
[phone]
Attorneys for MB Financial Bank, N.A.

Attorneys for HSH Nordbank AG, New York
Branch

-4-

Case 1:09-md-02106-ASG Document 17 Entered on FLSD Docket 01/20/2010 Page 5 of 5

Jean-Marie L. Atamian
Jason I. Kirschner
Frederick D. Hyman
Mayer Brown LLP
1675 Broadway
New York, NY 10019-5820
[phone]

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
[phone]

Attorneys for Sumitomo Mitsui Banking
Corporation

Attorneys for Bank of America, N.A.; Merrill
Lynch Capital Corp.
Peter J. Roberts
Shaw Gussis Fishman Glantz Wolfson &
Towbin LLC
321 N. Clark Street
Suite 800
Chicago, IL 60654
[phone]

Arthur H. Rice
Rice Pugatch Robinson & Schiller
101 NE 3 Avenue, Ste. 1800
Fort Lauderdale, FL 33301
[phone]
Attorneys for HSH Nordbank AG, New York
Branch

Attorneys for MB Financial Bank, N.A.
Thomas C. Rice
Lisa Rubin
David Woll
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017-3954
[phone]

Robert G. Fracasso, Jr.
Shutts & Bowen
201 S. Biscayne Blvd.
Ste. 1500 Miami Center
Miami, FL 33131
[phone]
Attorneys for Sumitomo Mitsui Banking
Corporation

Attorneys for Bank of Scotland PLC; Barclays
Bank PLC; Deutsche Bank Trust Co.
Americas; JP Morgan Chase Bank, N.A.
Aaron R. Maurice
Woods Erickson Whitaker
& Maurice, LLP
1349 Galleria Drive, Ste. 200
Henderson, NV 89014
[phone]

Harold D. Moorefield, Jr.
Stearns Weaver Miller
Alhadeff & Sitterson
Museum Tower
150 W. Flagler Street, Ste. 2200
Miami, FL 33130
[phone]

Attorneys for HSH Nordbank AG
(via First Class Mail)

Attorneys for Bank of Scotland PLC

__/s/ Bruce J. Berman_______________
Bruce J. Berman
MIA 356945-1.075895.0010

-

5-

Case 1:09-md-02106-ASG Document 18 Entered on FLSD Docket 01/20/2010 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV–GOLD/MCALILEY
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This Document Relates to:

No. 09 Civ. 8064 (Southern District of New York)
No. 09 Civ. 1047 (District of Nevada)

DEFENDANT CAMULOS MASTER FUND, L.P.’S
RULE 7.1 DISCLOSURE STATEMENT
Pursuant to Federal Rule of Civil Procedure 7.1 and to enable District Judges and
Magistrate Judges of the Court to evaluate possible disqualification or recusal, the undersigned
counsel for Camulos Master Fund, L.P. (“Camulos”) certifies that Camulos Capital, L.P., a
privately held limited partnership, is the investment adviser of Camulos. No publicly held
corporation owns more than 10% of Camulos’ stock. Camulos has no subsidiaries that are
publicly traded.
Dated: Miami, Florida
January 20, 2010

Respectfully submitted,
MCDERMOTT WILL & EMERY LLP

__/s/ Bruce J. Berman_______________
Bruce J. Berman (Fla. Bar #159280)
201 South Biscayne Boulevard
Suite 2200
Miami, Florida 33131-4336
[phone] (tel)
[phone] (fax)
[e-mail]

Case 1:09-md-02106-ASG Document 18 Entered on FLSD Docket 01/20/2010 Page 2 of 5

Andrew B. Kratenstein, Esq.*
Michael R. Huttenlocher, Esq.*
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10173
[phone] (tel)
[phone] (fax)
[e-mail]
[e-mail]
Attorneys for Defendant Camulos Master Fund,
L.P.
* Motions for admission pro hac vice
forthcoming.
OF COUNSEL:
Nicholas J. Santoro
Santoro, Driggs, Walch, Kearney, Johnson &
Thompson
400 S. Fourth Street
3rd Floor
Las Vegas, NV 89101
[phone] (tel)
[phone] (fax)
[e-mail]
To: Please see attached certificate of service.

Case 1:09-md-02106-ASG Document 18 Entered on FLSD Docket 01/20/2010 Page 3 of 5

CERTIFICATE OF SERVICE
I certify that on this 20th day of January, 2010, I caused a copy CAMULOS MASTER
FUND L.L.P.’ S RULE 7.1 DISCLOSURE STATEMENT to be served on counsel for all parties
as follows:
VIA ECF ELECTRONIC FILING SYSTEM OR FIRST CLASS MAIL (as designated)
Sarah A. Harom
Bailey Kennedy
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
[phone]

Scott Louis Baena
Jeffrey I. Synder
Bilzine Bumberg Baena Price & Axelrod
200 S. Biscayne Blvd., Ste. 2500
Miami, FL 33131-2336

Attorneys for Barclays Bank PLC, Deutsch
Bank Trust Co. Americas, JP Morgan Chase
Bank, N.A., Royal Bank of Scotland PLC
Susan Williams Scann
Deaner, Deaner, Scann, Malan & Larsen
720 S. Fourth Street, Ste. 300
Las Vegas, NV 89101
[phone]

Attorneys for Fontainebleau Las Vegas

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

Attorneys for Avenue CLO Fund, LTD., et al.
Alvin S. Goldstein
Furr & Cohen
2255 Glades Road
Ste. 337-W One Boca Place
Boca Raton, FL 33431
[phone]
Attorneys for MB Financial Bank, N.A.

Attorneys for Avenue CLO Fund, LTD., et al.
Mark D. Bloom
John B. Hutton, III
Greenberg Traurig
1221 Brickell Avenue
Miami, FL 33131
[phone]
Attorneys for Barclays Bank PLC, Deutsch
Bank Trust Co. Americas, JP Morgan Chase
Bank, N.A., Royal Bank of Scotland PLC

Case 1:09-md-02106-ASG Document 18 Entered on FLSD Docket 01/20/2010 Page 4 of 5

Bruce Bennett
Kirk Dillman
J. Michael Hennigan
Sidney P. Levinson
Peter J. Most
Lauren A. Smith
Michael C. Schneidereit
Hennigan Bennett & Dorman LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017
[phone]
Attorneys for Avenue CLO Fund, LTD., et al.
Jed I. Bergman
David M. Friedman
Marc E. Kasowitz
Seth A. Moskowitz
Kasowitz Benson Torres & Friedman LLP
1633 Broadway
New York, NY 10019
[phone]

Kevin M. Eckhardt
Craig V. Rasile
Hunton & Williams
1111 Brickell Ave., Ste. 3500
Miami, FL 33131
[phone]
Attorneys for Bank of America, N.A.; Bank of
Scotland PLC; Barclays Bank PLC; Deutsche
Bank Trust Co. Americas; HSH Nordbank
AG, New York Branch; JP Morgan Chase
Bank, N.A.; Merrill Lynch Capital
Corporation; The Royal Bank of Scotland
PLC
Arthur Linker
Kenneth E. Noble
Anthony L. Paccione
Katten Muchin Rosenman LLP
575 Madison Ave.
New York, NY 10022
[phone]
Attorneys for Bank of Scotland PLC

Attorneys for Fontainebleau Las Vegas LLC
Aaron Rubenstein
Philip A. Geraci
Andrew A. Kress
W. Stewart Wallace
Kaye Scholer LLP
425 Park Avenue
12th Floor
New York, NY 10022
[phone]
Attorneys for HSH Nordbank AG, New York
Branch

Laury M. Macauley
Lewis and Roca LLP
50 West Liberty Street
Reno, NV 89501
[phone]
Attorneys for MB Financial Bank, N.A.

Case 1:09-md-02106-ASG Document 18 Entered on FLSD Docket 01/20/2010 Page 5 of 5

Jean-Marie L. Atamian
Jason I. Kirschner
Frederick D. Hyman
Mayer Brown LLP
1675 Broadway
New York, NY 10019-5820
[phone]
Attorneys for Sumitomo Mitsui Banking
Corporation

Arthur H. Rice
Rice Pugatch Robinson & Schiller
101 NE 3 Avenue, Ste. 1800
Fort Lauderdale, FL 33301
[phone]
Attorneys for HSH Nordbank AG, New York
Branch
Robert G. Fracasso, Jr.
Shutts & Bowen
201 S. Biscayne Blvd.
Ste. 1500 Miami Center
Miami, FL 33131
[phone]
Attorneys for Sumitomo Mitsui Banking
Corporation

Harold D. Moorefield, Jr.
Stearns Weaver Miller
Alhadeff & Sitterson
Museum Tower
150 W. Flagler Street, Ste. 2200
Miami, FL 33130
[phone]
Attorneys for Bank of Scotland PLC

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
[phone]
Attorneys for Bank of America, N.A.; Merrill
Lynch Capital Corp.
Peter J. Roberts
Shaw Gussis Fishman Glantz Wolfson &
Towbin LLC
321 N. Clark Street
Suite 800
Chicago, IL 60654
[phone]
Attorneys for MB Financial Bank, N.A.
Thomas C. Rice
Lisa Rubin
David Woll
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017-3954
[phone]
Attorneys for Bank of Scotland PLC; Barclays
Bank PLC; Deutsche Bank Trust Co.
Americas; JP Morgan Chase Bank, N.A.
Aaron R. Maurice
Woods Erickson Whitaker
& Maurice, LLP
1349 Galleria Drive, Ste. 200
Henderson, NV 89014
[phone]
Attorneys for HSH Nordbank AG
(via First Class Mail)

__/s/ Bruce J. Berman_______________
Bruce J. Berman

Case 1:09-md-02106-ASG Document 19 Entered on FLSD Docket 01/20/2010 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-02106-CIV– GOLD/MCALILEY
In re:
Fontainebleau Las Vegas Contract Litigation
_________________________________________/
This Document Relates to: All Actions
FONTAINEBLEAU’S RESPONSE IN FURTHER SUPPORT OF ITS MOTION
TO CERTIFY THE COURT’S ORDERS UNDER 29 U.S.C. § 1292(b)
Fontainebleau1 hereby responds to the Term Lenders’ opposition to its Motion. For the
reasons set forth below, the Term Lenders’ arguments fail and the Motion should be granted:
First, a central premise of the Term Lenders’ argument -- that they “have not yet been
heard on any issues raised in Fontainebleau’s motion for partial summary judgment” -- is
demonstrably false. The Term Lenders fail to mention that they previously filed a brief as
amicus curiae in support of Fontainebleau’s motion for partial summary judgment motion. (See
Fontainebleau Las Vegas LLC v. Bank of America, N.A., et al., CASE NO.: 09-21879-CIVGOLD/MCALILEY (S.D.Fla.) (the “Fontainebleau Action”), D.E. ## 26-1 (Term Lenders’
Amicus Brief); 31 (Order Granting Leave to File Amicus Brief).) The amicus brief acknowledges
that Fontainebleau’s summary judgment briefs “comprehensively demonstrate that ‘fully drawn’
does not mean fully funded” (Fontainebleau Action, D.E. # 26-1 at 1 n.1 (emphasis added)), and
then sets forth -- in detail -- the Term Lenders’ arguments regarding “whether the Revolving
Lenders’ obligation to honor a Notice of Borrowing is conditioned on the absence of a material
breach by the Borrower.” (See id. at 1-6.) Thus, the Term Lenders have had every opportunity
to address the exact summary judgment issues presented by Fontainebleau’s appeal, and their

1

All capitalized terms have the meaning set forth in Fontainebleau’s memorandum of law in support of its
motion to certify the Court’s Orders pursuant to 28 U.S.C. § 1292(b) (the “Motion”).

Case 1:09-md-02106-ASG Document 19 Entered on FLSD Docket 01/20/2010 Page 2 of 4

argument that this Court should indefinitely delay Fontainebleau’s appeal so that the Term
Lenders may advance undisclosed “new arguments” must fail.
Second, the Term Lenders offer only the prospect of unspecified “new arguments” -- not
new evidence. Yet the issues at the center of Fontainebleau’s appeal relate solely to the
unambiguous interpretation of the Credit Agreement, without resort to any extrinsic evidence.
(Indeed, any such evidence would be inadmissible in the construction of an unambiguous
contract.) The Term Lenders had every opportunity to present their own arguments in the
amicus brief, and Fontainebleau would have no objection to the Term Lenders’ filing an amicus
brief in the Eleventh Circuit, setting forth these “new arguments,” should this Court and the
Eleventh Circuit permit the appeal to go forward. But the mere suggestion of offering “new
arguments” on the merits, after this Court has issued a written opinion on the subject, cannot
suffice to delay resolution of Fontainebleau’s motion for interlocutory appeal.
Third, the Term Lenders offer no suggestion of when or how they intend to present these
“new arguments.” No motion of any kind is now pending, and it appears the Term Lenders may
intend to introduce these arguments only after discovery has been completed (currently
scheduled for April of 2011). Thus, despite couching their argument as one for “judicial
efficiency,” the Term Lenders effectively seek to delay -- indefinitely -- any appeal of the
Court’s Orders, despite the fact that those purely legal issues are now ripe for consideration on
appeal. Having chosen to refrain from making their own parallel motions for summary
judgment, the Term Lenders should not be permitted to derail Fontainebleau’s schedule.
Finally, the delay sought by the Term Lenders is especially unjustifiable here. As a
debtor in bankruptcy, Fontainebleau has limited resources, and expending millions of dollars on
discovery that would prove unnecessary if the Eleventh Circuit reverses the denial of summary

2

Case 1:09-md-02106-ASG Document 19 Entered on FLSD Docket 01/20/2010 Page 3 of 4

judgment is not in the best interests of Fontainebleau or its creditors. Similarly, the Term
Lenders fail to recognize that Fontainebleau also seeks leave to appeal from the Court’s August 5
Order withdrawing the reference from the Bankruptcy Court. Not only is the turnover issue
underlying the August 5 Order not “common to all three cases,” but delaying Fontainebleau’s
appeal of that Order will likely also serve to waste a significant amount of Fontainebleau’s
limited resources, since, as demonstrated more fully in Fontainebleau’s briefs, reversal of the
Order at a later point in the course of these proceedings may render it necessary to re-litigate all
or most of this case in the Bankruptcy Court.
For these reasons, and as more fully set in Fontainebleau’s prior briefs, the Motion should
be granted.
Dated: January 20, 2010
Miami, Florida
Respectfully submitted,
BILZIN SUMBERG BAENA PRICE & AXELROD LLP
Counsel to Fontainebleau Las Vegas LLC
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
By: /s/ Jeffrey I. Snyder
Scott L. Baena
Florida Bar No. 186445
Jay M. Sakalo
Florida Bar No. 156310
Jeffrey I. Snyder
Florida Bar No. 021281
and
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
Special Litigation Counsel to the Plaintiff

3

Case 1:09-md-02106-ASG Document 19 Entered on FLSD Docket 01/20/2010 Page 4 of 4

1633 Broadway
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
Marc E. Kasowitz
N.Y. Bar No. 1309871
(pro hac vice)
David M. Friedman
N.Y. Bar No. 2275758
(pro hac vice)
Jed I. Bergman
N.Y. Bar No. 2928349
(pro hac vice)
Seth A. Moskowitz
N.Y. Bar No. 2884542
(pro hac vice)

4

Case 1:09-md-02106-ASG Document 21 Entered on FLSD Docket 01/25/2010 Page 1 of 1

By Darion Payne on Jan 20, 2010

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
ACP Master, Ltd., et al. v. Bank of America, N.A., et al.,
S.D. New York, C.A. No. 1:09-8064

)
)

Jan 04, 2010

MDL No. 2106

CONDITIONAL TRANSFER ORDER (CTO-1)

On December 2, 2009, the Panel transferred one civil action to the United States District Court for
the Southern District of Florida for coordinated or consolidated pretrial proceedings pursuant to 28
U.S.C. § 1407. See ___F.Supp.2d___ (J.P.M.L. 2009). With the consent of that court, all such
actions have been assigned to the Honorable Alan S. Gold.
It appears that the action on this conditional transfer order involves questions of fact that are
common to the actions previously transferred to the Southern District of Florida and assigned to
Judge Gold.
Pursuant to Rule 7.4 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, 199
F.R.D. 425, 435-36 (2001), this action is transferred under 28 U.S.C. § 1407 to the Southern District
of Florida for the reasons stated in the order of December 2, 2009, and, with the consent of that
court, assigned to the Honorable Alan S. Gold.
This order does not become effective until it is filed in the Office of the Clerk of the United States
District Court for the Southern District of Florida. The transmittal of this order to said Clerk shall
be stayed 14 days from the entry thereof. If any party files a notice of opposition with the Clerk of
the Panel within this 14-day period, the stay will be continued until further order of the Panel.

FOR THE PANEL:

Jan 20, 2010
___________________________
Jeffery N. Lüthi
Clerk of the Panel

Case 1:09-md-02106-ASG Document 21-1 Entered on FLSD Docket 01/25/2010 Page 1 of 1
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106

PANEL SERVICE LIST (CTO-1)

Jean-Marie L. Atamian
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Jed I. Bergman
KASOWITZ BENSON
TORRES & FRIEDMAN LLP
1633 Broadway
New York, NY 10019
Camulos Master Fund
c/o Mr. Michael Iuliano
Camulos Capital LP
3 Landmark Square, 4th Floor
Stamford, CT 06901
Daniel L. Cantor
O'MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
James B. Heaton, III
BARTLIT BECK HERMAN
PALENCHAR & SCOTT
54 West Hubbard Street
Suite 300
Chicago, IL 60610-4967
Andrew Bennett Kratenstein
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10017
Peter J. Most
HENNIGAN BENNETT & DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017

Anthony L. Paccione
KITSON KITSON & BISTESTO LLP
50 Main Street
9th Floor
White Plains, NY 10606
David Parker
KLEINBERG KAPLAN
WOLFF & COHEN PC
551 Fifth Avenue
18th Floor
New York, NY 10176
Thomas C. Rice
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Peter J. Roberts
SHAW GUSSIS FISHMAN GLANTZ
WOLFSON & TOWBIN LLC
321 North Clark Street
Suite 800
Chicago, IL 60654
Aaron Rubinstein
KAYE SCHOLER LLP
425 Park Avenue
12th Floor
New York, NY 10022

Case 1:09-md-02106-ASG Document 22 Entered on FLSD Docket 01/25/2010 Page 1 of 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
STEVEN M. LARIMORE
Court Administrator • Clerk of Court

January 25, 2010
United States District Court
Southern District of New York

RE:

MDL No. 2106 In Re: Fontainebleau Las Vegas Contract Litigation
Our Case #
09-md-2106-Gold
Your Case No. 1:09-8064 ACP Master, Ltd., et al. v. Bank of America, N.A., et al.,

Dear Clerk:
Attached is a certified copy of the order from the Judicial Panel on Multidistrict Litigation
(MDL Panel) transferring the above entitled action to the Southern District of Florida. This
case will be directly assigned to the Honorable Alan S. Gold.
Please proceed to close the case(s) in your district and initiate the civil case transfer
functionality in CM/ECF. We will initiate the procedure to retrieve the transferred cases(s)
upon receipt of the e-mail. If your court does not utilize the CM/ECF transfer functionality,
please forward the court file (including originating Complaint or Notice of Removal, any
amendments, docket sheet, and MDL Conditional Transfer Order 1) as PDF documents to the
Southern District of Florida via electronic mail at: [e-mail].

STEVEN M. LARIMORE
Clerk of Court

s/ Graciela Gomez
by:
MDL Clerk
Encl.

G400 N. Miami Avenue
Room 8N09
Miami, FL 33128
305-523-5100

G299 E. Broward Boulevard
Room 108
Ft. Lauderdale, FL 33301
954-769-5400

G701 Clematis Street
Room 402
W. Palm Beach, FL 33401
561-803-3400

G301 Simonton Street
Room 130
Key West, FL 33040
305-295-8100

G300 S. Sixth Street
Ft. Pierce, FL 34950
772-595-9691

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-2106-CIV-GOLD/MCALILEY
In re:
FONTAINEBLEAU LAS VEGAS CONTRACT
LITIGATION,
MDL No. 2106
This document relates to Case Numbers:
09-cv-23835-ASG
10-cv-20236-ASG
______________________________________/
MDL ORDER NUMBER SIX: GRANTING MOTION FOR
LIMITED APPEARANCE OF ANDREW B. KRATENSTEIN [DE 23]
THIS CAUSE having come before the Court upon the Motion for Limited Appearance
of ANDREW B. KRATENSTEIN, Consent to Designation and Request to Electronically
Receive Notices of Electronics Filings (“Motion”) [DE 23], requesting, pursuant to the
Special Rules Governing the Admission and Practice of Attorneys in the United States
District Court for the Southern District of Florida, permission for a limited appearance of
ANDREW B. KRATENSTEIN in this matter and to electronically receive notice of electronic
filings. Having considered the Motion and being otherwise fully advised in the Premises,
it is hereby
ORDERED and ADJUDGED that:
1.

The Motion for Limited Appearance, Consent to Designation and Request to
Electronically Receive Notices of Electronic Filings [DE 23] is GRANTED.

2.

Andrew B. Kratenstein, Esq. is permitted to appear and participate in this action
for purposes of limited appearances as co-counsel on behalf of CAMULOS

Case 1:09-md-02106-ASG Document 25 Entered on FLSD Docket 01/28/2010 Page 2 of 2

MASTER FUND, L.P. in the above-styled action.
3.

The Clerk shall provide electronic notification of all electronic filings to Andrew B.
Kratenstein at [e-mail]
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of January,
2010.

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

Case 1:09-md-02106-ASG Document 26 Entered on FLSD Docket 01/28/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-MD-2106-CIV-GOLD/MCALILEY
In re:
FONTAINEBLEAU LAS VEGAS CONTRACT
LITIGATION,
MDL No. 2106
This document relates to Case Numbers:
09-cv-23835-ASG
10-cv-20236-ASG
______________________________________/
MDL ORDER NUMBER SEVEN: GRANTING MOTION FOR
LIMITED APPEARANCE OF MICHAEL R. HUTTENLOCHER [DE 24]
THIS CAUSE having come before the Court upon the Motion for Limited Appearance
of MICHAEL R. HUTTENLOCHER, Consent to Designation and Request to Electronically
Receive Notices of Electronics Filings (“Motion”) [DE 24], requesting, pursuant to the
Special Rules Governing the Admission and Practice of Attorneys in the United States
District Court for the Southern District of Florida, permission for a limited appearance of
MICHAEL R. HUTTENLOCHER in this matter and to electronically receive notice of
electronic filings. Having considered the Motion and being otherwise fully advised in the
Premises, it is hereby
ORDERED and ADJUDGED that:
1.

The Motion for Limited Appearance, Consent to Designation and Request to
Electronically Receive Notices of Electronic Filings [DE 24] is GRANTED.

2.

Michael R. Huttenlocher, Esq. is permitted to appear and participate in this action
as co-counsel on behalf of CAMULOS MASTER FUND, L.P. in the above-styled

Case 1:09-md-02106-ASG Document 26 Entered on FLSD Docket 01/28/2010 Page 2 of 2

action.
3.

The Clerk shall provide electronic notification of all electronic filings to Michael R.
Huttenlocher at [e-mail]
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of

January, 2010.

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

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-02106-CIV-GOLD/MCALILEY
[original SDFL action 09-21879]
Case No. 09-CV-01047-KJD-PAL

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION

MDL No. 2106

AVENUE CLO FUND, LTD., et al.,
Plaintiffs,
vs.
BANK OF AMERICA, N.A., et al.,
Defendants.
/
PLAINTIFFS’ DISCLOSURE STATEMENTS
PURSUANT TO F.R.C.P. RULE 7.1
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Plaintiffs, by their counsel,
attach the following Disclosure Statements:
1.

Exhibit A: Disclosure Statement for Plaintiff ARES Enhanced Loan Investment

Strategy III, Ltd.
2.

Exhibit B: Disclosure Statement for Plaintiffs Avenue CLO Fund, Ltd.; Avenue

CLO II, Ltd.; Avenue CLO III, Ltd.; Avenue CLO IV, Ltd.; Avenue CLO V, Ltd.; and Avenue
CLO VI, Ltd.
3.

Exhibit C: Disclosure Statement for Plaintiffs Brigade Leveraged Capital

Structures Fund, Ltd. and Battalion CLO 2007-I Ltd.
4.

Exhibit D: Disclosure Statement for Plaintiff Cantor Fitzgerald Securities.

Case 1:09-md-02106-ASG Document 29 Entered on FLSD Docket 01/29/2010 Page 2 of 4

5.

Exhibit E: Disclosure Statement for Plaintiffs Canpartners Investments IV, LLC;

Canyon Special Opportunities Master Fund (Cayman), Ltd.; Canyon Capital CLO 2004 1 Ltd.;
Canyon Capital CLO 2006 1 Ltd.; and Canyon Capital CLO 2007 1 Ltd.
6.

Exhibit F: Disclosure Statement for Plaintiffs Carlyle High Yield Partners 2008-1,

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.; and Carlyle High Yield Partners
X, Ltd.
7.

Exhibit G: Disclosure Statement for Plaintiffs Caspian Corporate Loan Fund

LLC; Caspian Capital Partners, L.P.; Caspian Select Credit Master Fund, Ltd.; Mariner
Opportunities Fund, LP; and Mariner LDC
8.

Exhibit H: Disclosure Statement for Plaintiffs Olympic CLO I Ltd.; Shasta CLO I

Ltd.; Whitney CLO I Ltd.; San Gabriel CLO I Ltd.; and Sierra CLO II Ltd.
9.

Exhibit I: Disclosure Statement for Plaintiffs Aberdeen Loan Funding, Ltd.;

Armstrong Loan Funding, Ltd.; Brentwood CLO, Ltd.; Eastland CLO, Ltd.; Gleneagles CLO,
Ltd.; Grayson CLO, Ltd.; Greenbriar CLO, Ltd.; Highland Credit Opportunities CDO, Ltd.;
Highland Loan Funding V, Ltd.; Jasper CLO, Ltd.; Liberty CLO, Ltd.; Loan Funding IV LLC;
Loan Funding VII LLC; Red River CLO, Ltd.; Rockwall CDO Ltd.; Rockwall CDO II, Ltd.;
Southfork CLO, Ltd.; Stratford CLO, Ltd.; and Westchester CLO, Ltd.
10.

Exhibit J: Disclosure Statement for Plaintiffs ING Prime Rate Trust; ING Senior

Income Fund; ING International (II) - Senior Bank Loans Euro; ING Investment Management
CLO I, Ltd.; ING Investment Management CLO II, Ltd.; ING Investment Management CLO III,
Ltd.; ING Investment Management CLO IV, Ltd.; and ING Investment Management CLO V,
Ltd.

2

Case 1:09-md-02106-ASG Document 29 Entered on FLSD Docket 01/29/2010 Page 3 of 4

11.

Exhibit K: Disclosure Statement for Plaintiffs Venture II CDO 2002, Limited;

Venture III CDO Limited; Venture IV CDO Limited; Venture V CDO Limited; Venture VI CDO
Limited; Venture VII CDO Limited; Venture VIII CDO Limited; Venture IX CDO Limited;
Vista Leveraged Income Fund; and Veer Cash Flow CLO, Limited.
12.

Exhibit L: Disclosure Statement for Plaintiff Genesis CLO 2007-1 Ltd.

13.

Exhibit M: Disclosure Statement for Plaintiffs Primus CLO I, Ltd. and Primus

CLO II, Ltd.
14.

Exhibit N: Disclosure Statement for Plaintiffs Rosedale CLO, Ltd. and Rosedale

CLO II Ltd.
15.

Exhibit O: Disclosure Statement for Plaintiff SPCP Group, LLC.

16.

Exhibit P: Disclosure Statement for Plaintiff Stone Lion Portfolio L.P.

17.

Exhibit Q: Disclosure Statement for Plaintiff Venor Capital Master Fund, Ltd.

Dated: January 29, 2010

Respectfully submitted,
/s David Rothstein
.
David A. Rothstein
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive
Penthouse Two
Miami, FL 331343
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiffs

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

3

Case 1:09-md-02106-ASG Document 29 Entered on FLSD Docket 01/29/2010 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that on January 29, 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 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 Notices of Electronic Filing.

/s David Rothstein
David A. Rothstein

.

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Case 1:09-md-02106-ASG Document 30 Entered on FLSD Docket 02/08/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 09-21879-CIV-GOLD/MCALILEY
FONTAINEBLEAU LAS VEGAS LLC,
Plaintiff,
v.
BANK OF AMERICA, N.A., et al,
Defendants.
________________________________/
NOTICE OF REQUEST FOR TERMINATION OF APPEARANCE OF ATTORNEY ON SERVICE LIST
The Term Lenders, 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:
•

SUSAN WILLIAMS SCANN, ESQ.
Deaner Deaner Scann Malan & Larsen
720 S 4th Street, Suite 300
Las Vegas, NV 89101.
Respectfully submitted,
By: /s Lorenz Michel Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz Michel Prüss, Esq
Fla. Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone: [phone]
Facsimile:
[phone]
Local Counsel for Term Lenders

Case 1:09-md-02106-ASG Document 30 Entered on FLSD Docket 02/08/2010 Page 2 of 2

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this February 8, 2010, I filed the foregoing with the Clerk of
the Court and the CM/ECF system will send a notice of electronic filing to the following counsel
and parties of records, except as otherwise noted.

By: /s Lorenz Michel Prüss
Lorenz Michel Prüss

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