Abu Dhabi Commercial Bank et al v. Morgan Stanley & Co. Incorporated et al
OPINION AND ORDER re: 522 MOTION for Summary Judgment, filed by Morgan Stanley & Co. Incorporated, Morgan Stanley & Co. International Limited. For the foregoing reasons, Morgan Stanley's motion for summary judgment on plaintiffs' negligen t misrepresentation claim is granted as to Butterfield, King County, SEI Investments Company, SEI Investment Strategies, LLC, SFT Collective Investment Fund, FSBA, Postbank and Sinopac. The motion is denied as to ADCB, Commerzbank, GIB, Hapoalim, NAC F, NZ Funds. As a procedural matter, because the remaining plaintiffs' negligent misrepresentation claims will depend both on whether or not the actual credit-worthiness of the Rated Notes is deemed within the peculiar knowledge of Morgan Stanle y, and on individualized proof regarding the requisite special relationship giving rise to a duty of care, the remaining plaintiffs' negligent misrepresentation case will be reserved for Phase II of the trial, in accordance with my February 25, 2013 Order bifurcating the trial (Dkt. No. 572). The Clerk of the Court is directed to close this motion (Dkt. No. 522). A status conference in this case is currently scheduled for March 15, 2013 at 10:00 a.m. ( Status Conference set for 3/15/2013 at 10:00 AM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 3/5/2013) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ABU DHABI COMMERCIAL BANK, et aI.,
- againstOPINION AND ORDER
MORGAN STANLEY & CO. INC., MORGAN
STANLEY & CO. INTERNATIONAL LTD,
MOODY'S INVESTORS SERVICE, INC.,
MOODY'S INVESTORS SERVICE LTD.,
STANDARD AND POOR'S RATINGS
SERVICES and THE McGRAW HILL
08 Civ. 7508 (SAS)
SHIRA A. SCHEINDLIN, U.S.D.J.:
Defendants Morgan Stanley & Co. Inc. and Morgan Stanley & Co.
International Ltd. (together "Morgan Stanley") move for summary judgment
pursuant to Federal Rule of Civil Procedure 56( c) on plaintiffs' negligent
misrepresentation claims. Morgan Stanley argues that New York law prohibits
negligence claims for purely economic losses absent "a special relationship of trust
and confidence ... creating a duty of care," and that plaintiffs cannot establish that
such a relationship existed.! Plaintiffs oppose the motion. 2
See [Morgan Stanley's] Memorandum of Law in Support of Their
Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(c)
Morgan Stanley’s motion for summary judgment largely focuses on
the nature of its relationship with plaintiffs. The relevant background follows.3
Plaintiffs are institutional investors who invested in the Cheyne structured
investment vehicle (“SIV”) and seek to recover losses stemming from the
liquidation of notes issued by the SIV between October 2004 and October 2007.4
The Cheyne SIV issued three categories of Rated Notes: Commercial Paper
(“CP”), Medium Term Notes (“MTNs” and together with CP, “Senior Notes”) and
Mezzanine Capital Notes (“MCNs” and, together with the Senior Notes, the “Rated
Notes”), each of which was rated by the Rating Agencies.5
at 1 (“Def. Mem.”).
See Plaintiffs’ Opposition to [Morgan Stanley’s]Motion for Summary
Judgment Pursuant to Federal Rule of Civil Procedure 56(c) (“Pl. Opp.”).
Only the facts directly relevant to the instant motion are discussed in
this Opinion. A detailed background of the case can be found in earlier decisions.
See Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., No. 08 Civ. 7508,
2012 WL 3584278 (S.D.N.Y. Aug. 17, 2012) (“Abu Dhabi S.J. Op.”); Abu Dhabi
Commercial Bank v. Morgan Stanley & Co. Inc., 651 F. Supp. 2d 155 (S.D.N.Y.
2009) (“Abu Dhabi MTD Op.”).
See Ninth Amended Complaint (“NAC”) ¶¶ 2, 5.
See id. ¶ 2. See also Cheyne Capital PLC Information Memoranda
(“Information Memoranda”), Exs. 1-3 to Declaration of James P. Rouhandeh in
Support of Morgan Stanley’s Motion for Summary Judgment (“Rouhandeh
Morgan Stanley had dual roles in connection with the Cheyne SIV – it
was “structurer and advisor to Cheyne with respect to the [Cheyne SIV] and  lead
placement agent for the instruments to be issued in connection with the [Cheyne
SIV].”6 In its capacity as structurer of the Cheyne SIV, Morgan Stanley was
responsible for “developing the appropriate structure and negotiating with [the
Rating Agencies] that [Cheyne] and [Morgan Stanley] agree may rate certain of the
instruments issued in the Transaction.”7 A Morgan Stanley employee explained
that “[g]enerally on these deals investors do request some ratings, so this is why
you engage the rating agencies before you actually start the marketing process of
these notes.”8 Morgan Stanley was also “involved in the development of new
Decl.”). Moody’s Investors Service, Inc. and Moody’s Investors Service Ltd., and
Standard & Poor’s Ratings Services and The McGraw Hill Companies, Inc.
(collectively the “Rating Agencies”) are also defendants in this suit.
12/8/03 Engagement Letter from Morgan Stanley to Cheyne Capital
Management Limited (“Engagement Letter”) at MS_000077748, Ex. 89 to
Declaration of Daniel Drosman in Support of Opposition to Morgan Stanley’s
Motion for Summary Judgment (“Drosman Decl.”).
11/6/09 Deposition of Rany Moubarak at 90:9-13, Ex. 11 to Drosman
Decl. See also 10/20/04 Email from Morgan Stanley to Cheyne Capital
Management re: Cheyne Task List at MS_000590220, Ex. 10 to Drosman Decl.
(stating that “both S&P and Moody’s ratings are needed on the Senior Notes
structural features to be incorporated in the SIV” post-launch.9 Morgan Stanley
received a ten million dollar structuring fee for these services in 2005, and twenty
to twenty-five percent of the ongoing Senior Management Fee and a portion of the
ongoing Performance Management Fee.10
In addition, as Arranger and Placement Agent for the Rated Notes
Morgan Stanley was involved in the “extensive [and ongoing] marketing of the
Notes to potential investors.”11 In marketing the Cheyne SIV, Morgan Stanley’s
“goal [was] to identify the specific target universe of investors that will allow the
[SIV] to achieve an attractive cost of funding on the Notes, while also meeting . . .
other objectives.”12 In furtherance of this goal, Morgan Stanley reached out to
individual investors, including certain plaintiffs, to solicit investments, provided
marketing materials and individualized memoranda answering plaintiffs’ inquiries,
and met with plaintiffs all over the world, held dinners and conducted phone
calls.13 In communications with certain plaintiffs Morgan Stanley emphasized that
Engagement Letter at MS_000077748.
See 7/5/06 Interoffice Memorandum at MS_000452248, 452255, Ex.
95 to Drosman Decl.
Engagement Letter at MS_000077750.
See Pl. Opp. at 7-16 (discussing Morgan Stanley’s communications
with each plaintiff) (citing Exs. 8-88 to Drosman Decl.).
the deal “offer[ed] different rated tranches (A or BBB or unrated) with attractive
returns” and a “[high quality] underlying portfolio”14 and offered the opportunity to
discuss the deal further with its structuring team.15 In its capacity as a Placement
Agent, Morgan Stanley distributed Information Memoranda and other selling
documents containing key terms with respect to the Rated Notes.16
The procedural history relevant to plaintiffs’ negligent
misrepresentation claim follows. Plaintiffs initiated this action on August 25, 2008
alleging common law fraud and tort claims against, inter alia, Morgan Stanley. In
a September 2, 2009 Opinion and Order I dismissed all common law tort claims
against Morgan Stanley in accordance with then-settled Second Circuit law that
New York’s Martin Act preempted common law tort claims.17 Following the
December 20, 2011 decision of the New York Court of Appeals that the Martin
4/13/05 Email from Morgan Stanley to Abu Dhabi Commercial Bank
(“ADCB”) re: New Deal *** SIV Cheyne Managed Investment at MS_000221694,
Ex. 9 to Drosman Decl.
See NAC ¶ 3. See also Information Memoranda.
See Abu Dhabi MTD Op., 651 F. Supp. 2d at 181.
Act does not preempt these claims,18 plaintiffs filed a Ninth Amended Complaint
renewing their common law tort claims against, inter alia, Morgan Stanley. On
May 4, 2012, I dismissed all common law tort claims against Morgan Stanley
except for negligent misrepresentation.19
In an August 17, 2012 Opinion and Order, I granted summary
judgment for Morgan Stanley on plaintiffs’ fraud claims because plaintiffs had not
identified any actionable misstatement attributable to Morgan Stanley.20 Although
Morgan Stanley had not yet moved for summary judgment on plaintiffs’ negligent
misrepresentation claims, I ordered plaintiffs to show cause as to why their
negligent misrepresentation claims against Morgan Stanley should not be
dismissed in light of my finding that Morgan Stanley made no actionable
misstatement to plaintiffs.21 On October 5, 2012, I held that under New York law,
See Assured Guaranty (UK) Ltd. v. J.P. Morgan Inv. Mgmt. Inc., 939
N.Y.S.2d 274 (2011) (“[W]e conclude that plaintiff’s breach of fiduciary duty and
gross negligence claims are not barred by the Martin Act.”).
See 5/4/12 Order (Dkt. No. 404). Finding that “[i]n all ways that are
relevant to defendants’ motions, the facts here are similar to the facts in King
County, Washington v. IKB Deutsche Industriebank AG,” my decision on the
common tort law claims in Abu Dhabi rested on the grounds set forth in the King
County decision. Id. (discussing King County, Washington v. IKB Deutsche
Industriebank AG, 863 F. Supp. 2d 288 (S.D.N.Y. May 4, 2012)).
See Abu Dhabi S.J. Op., 2012 WL 3584278, at *7-9.
See id. at *23.
a plaintiff may maintain a negligent misrepresentation claim against a defendant to
whom no actionable misstatement can be attributed and declined to dismiss
plaintiffs’ negligent misrepresentation claim against Morgan Stanley.22
On January 3, 2013, following the Second Circuit’s decision in
Anschutz Corp. v. Merrill Lynch & Co., I granted Morgan Stanley’s motion for
summary judgment on the negligent misrepresentation claims in King County,
because plaintiffs “concede[d] that they had no direct contact with Morgan
Stanley.”23 Morgan Stanley now moves for summary judgment on the Abu Dhabi
plaintiffs’ negligent misrepresentation claims.
LEGAL STANDARD FOR SUMMARY JUDGMENT
“Summary judgment is designed to pierce the pleadings to flush out
those cases that are predestined to result in a directed verdict.”24 Thus, summary
judgment is appropriate “only where, construing all the evidence in the light most
See Abu Dhabi Order to Show Cause Op., No. 08 Civ. 7508, 2012 WL
4762039, at *1 (S.D.N.Y. Oct. 5, 2012).
King County, Washington v. IKB Deutsche Industriebank AG, No. 09
Civ. 8387, 2013 WL 45878, at *7 (S.D.N.Y. Jan. 3, 2013) (“King County S.J.
Op.”) (citing Anschutz, 690 F.3d at 115 (“Here, there are no allegations of any
direct contact between Anschutz and the Rating Agencies. We therefore conclude
that Anschutz has failed to state a claim for negligent misrepresentation under New
York law.”)). I rejected plaintiffs’ argument that Anschutz was not controlling.
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
favorable to the non-movant and drawing all reasonable inferences in that party’s
favor, there is ‘no genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.’”25 “A fact is material if it might affect the
outcome of the suit under the governing law, and an issue of fact is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
“[T]he burden of demonstrating that no material fact exists lies with
the moving party . . . .”27 “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of
evidence to go to the trier of fact on an essential element of the non[-]movant’s
claim.”28 In turn, to defeat a motion for summary judgment, the non-moving party
must raise a genuine issue of material fact.29 The non-moving party “‘must do
more than simply show that there is some metaphysical doubt as to the material
Rivera v. Rochester Genesee Regional Transp. Authority, 702 F.3d
685, 692 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)) (other quotations omitted).
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012) (internal
quotations and alterations omitted).
Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008)
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
facts,’”30 and cannot “rely on conclusory allegations or unsubstantiated
In deciding a motion for summary judgment, “[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.”32 “‘Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”33
APPLICABLE LAW ON NEGLIGENT MISREPRESENTATION
Under New York law “‘[a] claim for negligent misrepresentation
requires the plaintiff to demonstrate (1) the existence of a special or privity-like
relationship imposing a duty on the defendant to impart correct information to the
plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the
information.’”34 The question at issue here – “[w]hether the nature and caliber of
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Cuff ex rel. B.C. v. Valley Cent. School Dist., 677 F.3d 109, 119 (2d
Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Mandarin Trading Ltd. v. Wildenstein, 919 N.Y.S.2d 465, 470 (2011)
(quoting J.A.O. Acquisition Corp. v. Stavitsky, 831 N.Y.S.2d 364, 366 (2007)).
the relationship between the parties is such that the injured party’s reliance on a
negligent misrepresentation is justified [ – ] generally raises an issue of fact.”35
In evaluating whether the requisite duty of care existed the fact-finder
must consider: “ whether the person making the representation held or appeared
to hold unique or special expertise;  whether a special relationship of trust or
confidence existed between the parties; and  whether the speaker was aware of
the use to which the information would be put and supplied it for that purpose.”36
Accord Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 788 (2d Cir. 2003)
(“[T]he elements of negligent misrepresentation are: (1) carelessness in imparting
words; (2) upon which others were expected to rely; (3) and upon which they did
act or failed to act; (4) to their damage. Most relevant, the action requires that (5)
the declarant must express the words directly, with knowledge or notice that they
will be acted upon, to one to whom the declarant is bound by some relation or duty
of care.”) (citation omitted).
Kimmell v. Schaefer, 89 N.Y.2d 257, 264 (1996). However, the New
York Court of Appeals explained that “the nature of the duty which may give rise
to liability for negligent misrepresentation” – i.e. the duty to speak with care – is an
issue of law for the courts. Id. at 263 (citing Eiseman v. State of New York, 70
N.Y.2d 175, 187 (1987)). The question whether the nature of the relationship
makes plaintiffs’ reliance justified is distinct from the third factor – whether
reliance was in fact reasonable.
Id. at 264. In “recognizing liability [for negligent misrepresentation]
of professionals to third parties,” the New York Court of Appeals set forth three
requirements for establishing the necessary special relationship: “(1) the defendant
had awareness that its work was to be used for a particular purpose; (2) there was
reliance by a third party known to the defendant in furtherance of that purpose; and
(3) there existed some conduct by the defendant linking it to that known third party
evincing the defendant’s understanding of the third party’s reliance.”
Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692
The Second Circuit recently clarified that “New York strictly limits negligent
misrepresentation claims to situations involving actual privity of contract between
the parties or a relationship so close as to approach that of privity.”37 In addition
there must be “direct contact” between the parties.38 In the “absence of obligations
arising from the speaker’s professional status,” liability for negligent
misrepresentation requires “some identifiable source of a special duty of care . . .
giv[ing] rise to an exceptional duty regarding commercial speech and justifiable
reliance on such speech.”39 Whether such a “special relationship” exists in the
commercial context is “highly fact specific” and is not generally amenable to
F.3d 42, 60 (2d Cir. 2012) (citing Credit Alliance Corp. v. Arthur Andersen & Co.,
65 N.Y.2d 536, 551 (1985)).
Anschutz, 690 F.3d at 114 (addressing negligent misrepresentation
claims against rating agencies) (internal quotations omitted).
Id. at 115. Accord Dallas Aerospace, 352 F.3d at 788 (An action for
negligent misrepresentation “requires that the declarant must express the words
directly, with knowledge or notice that they will be acted upon, to one to whom the
declarant is bound by some relation or duty of care.”) (citation omitted).
Kimmell, 89 N.Y.2d at 264. The duty to speak with care may arise by
virtue of one’s professional status where the “training and expertise, may [give rise
to] special relationships of confidence and trust with  clients . . . .” Id. The court
in Kimmell cited lawyers, engineers and accountants as the types of professionals
that might be subject to the duty to speak with care. See id.
Century Pac., Inc. v. Hilton Hotels Corp., No. 03 Civ. 8358, 2004 WL
868211, at *8 (S.D.N.Y. Apr. 21, 2004). Accord Murphy v. Kuhn, 660 N.Y.S.2d
Morgan Stanley does not, for the purposes of the instant motion,
dispute that it possessed expertise and had access to information that was not
available to plaintiffs in deciding whether to invest in the Cheyne SIV.42 Nor does
266, 270-71 (1997) (holding that “in the absence of obligations arising from the
speaker’s professional status . . . to be sure,  whether the nature and caliber of the
relationship between the parties is such that the injured party’s reliance on a
negligent misrepresentation is justified generally raises an issue of fact”) (internal
quotations and alterations omitted).
Plaintiffs note that the Court “already ‘conducted an extensive
analysis of the relationship between Morgan Stanley and plaintiffs and determined
that plaintiffs had sufficiently alleged the existence of a ‘special relationship’
between the parties.’” Pl. Opp. at 5 (quoting Abu Dhabi Order to Show Cause Op.,
2012 WL 4762039, at *2 (emphasis added). This conclusion was based on
accepting plaintiffs’ allegations as true and does not govern the Court’s
conclusions on summary judgment, particularly since the “special relationship of
trust or confidence” element may be “sparsely pled” at the motion to dismiss stage
where “the complaint emphatically alleges [specialized knowledge and awareness
of the intended purpose of the information conveyed].” Eternity Global Master
Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 188 (2d Cir. 2004).
Accord King County, 863 F. Supp. 2d at 306.
There is, at minimum, a triable issue of fact as to whether and to what
degree Morgan Stanley possessed “superior knowledge” and “special expertise.”
See, e.g., Pl. Opp. at 2-3 (“As the arranger of the Cheyne SIV, [Morgan Stanley]
had access to immense non-public information and pressured Rating Agencies into
assigning ratings [Morgan Stanley] desired.”); 9/9/11 30(b)(6) Deposition of SFT
Collective Fund at 52:12-17, Ex. 3 to Drosman Decl. (“With the rating agency
being the only person, as well as the investment manager, having access to the line
by line CUSIP, we had to take [it for] face value within the investor report”);
1/6/05 Internal Morgan Stanley Email at MS_000634695, Ex. 5 to Drosman Decl.
(stating that “disclosure [for SIVs] is significantly less than a typical CDO as many
of the specific details are contained in the operating manual, which was not
Morgan Stanley dispute that it understood the use to which the ratings information
would be put and supplied it for that purpose.43 However, neither expertise, nor
knowledge that plaintiffs would rely gives rise to the requisite duty of care if there
is no special relationship.44 This is particularly so where the claim rests on Morgan
available to plaintiffs.”). See also, e.g., Bayerische, 2012 WL 5383572, at *4
(finding a duty where bank “had superior access to information and knowledge as
to . . . the true quality and value of the collateral portfolio and knowledge as an
expert concerning the actual risk of the assets in the portfolio”).
There is also ample factual support for the proposition that Morgan
Stanley knew plaintiffs would rely on the ratings and supplied them for that
purpose. See, e.g., 10/20/04 Email from Rany Moubarak, Morgan Stanley
employee, re: Cheyne Task List at MS_000590220, , Ex. 10 to Drosman Decl.
(stating that “both S&P and Moody’s ratings are needed on the Senior Note
programmes”); 11/6/09 Deposition of Rany Moubarak at 88:10-12, Ex. 11 to
Drosman Decl. (stating that “because most of the investors asked for our ratings on
these notes, that’s why you have to work with the rating agencies to actually try to
get these ratings”).
See Mandarin Trading, 919 N.Y.S.2d at 471 (dismissing negligent
misrepresentation claims despite defendants’ expertise where “there are no
allegations here that Wildenstein ever met with Mandarin, was retained by
Mandarin for an appraisal, or knew that the appraisal would be used by Mandarin
for the purpose of purchasing the painting”); Kimmell, 89 N.Y.2d at 264 (holding
that in “the absence of obligations arising from the speaker’s professional status . .
. there must be . . . a special relationship giv[ing] rise to an exceptional duty
regarding commercial speech and justifiable reliance on such speech”); Ravenna v.
Christie’s Inc., 734 N.Y.S.2d 21 (1st Dep’t 2001) (holding that notwithstanding
special expertise and knowledge that plaintiff would rely on defendant’s advice, a
“one-time meeting, which did not even create a business relationship, cannot be
said to have created a relationship of trust and confidence”). Accord King County,
863 F. Supp. 2d at 306 (“[T]here can be no negligent misrepresentation without
some form of ‘special relationship’ between the parties.”).
Stanley’s dissemination of the allegedly false statements of the Rating Agencies,
rather than its own statements.45
Morgan Stanley argues that there can be no special relationship with
plaintiffs with whom it had no direct contact.46 Morgan Stanley further contends
that its relationship with the plaintiffs to whom it spoke directly was nothing more
than that found in any arms-length transaction and, moreover, that express
disclaimers and plaintiffs’ expertise and sophistication preclude a finding of a duty
The Requisite Special Relationship Cannot Exist Absent Direct
Contact with Morgan Stanley
The Second Circuit recently held that a claim for negligent
misrepresentation under New York law cannot lie absent allegations of direct
contact between the plaintiff and maker of the misrepresentation.48 I rejected the
See Abu Dhabi Order to Show Cause Op., 2012 WL 4762039, at *3
(“The existence of the special relationship without which a negligent
misrepresentation claim cannot proceed creates a duty to impart correct – and
complete – information.”).
See Def. Mem. at 14-16.
See id. at 5-8.
See Anschutz, 690 F.3d at 115 (“Here, there are no allegations of any
direct contact between Anschutz and the Rating Agencies. We therefore conclude
that Anschutz has failed to state a claim for negligent misrepresentation under New
King County plaintiffs’ efforts to distinguish Anschutz and dismissed negligent
misrepresentation claims premised on the fact that Morgan Stanley “was
responsible for communicating the misleading ratings to investors through the
Bloomberg Professional service, an electronic platform from which both plaintiffs
purchased their Rhinebridge CP.”49 The negligent misrepresentation claims of
King County, Washington and SEI Investment Strategies, LLC in the instant case
must be dismissed for the same reason.50
Bank of N.T. Butterfield & Son Limited (“Butterfield”) purchased
Cheyne SIV MTNs and CP through Barclays and Merrill Lynch, not Morgan
Stanley.51 Butterfield’s only evidence of any direct contact with Morgan Stanley is
an internal Morgan Stanley email stating that Butterfield “is interested but need[s]
to find a way to get approved internally to have a legal final.”52 The Butterfield
King County S.J. Op., 2013 WL 45878, at *7 (citing King County
Plaintiffs’ Opposition to Summary Judgment at 33-34, No. 09 Civ. 8387 (Dkt. No.
See Pl. Opp. at 11, 14 (alleging only that the ratings were
communicated by Morgan Stanley through Bloomberg Professional service).
See Butterfield Transaction Receipt from Barclays at
BTRFLD0000021, Ex. 24 to Rouhandeh Decl.; Butterfield Transaction Receipt
from Merrill Lynch at BTRFLD0000022, Ex. 25 to Rouhandeh Decl.
6/9/05 Internal Morgan Stanley Email at MS_000235609, Ex. 18 to
employee who made the decision to invest in the Cheyne SIV had no recollection
of any conversation with Morgan Stanley let alone any direct communication from
Morgan Stanley that was relied upon in deciding whether to invest.53 Absent
testimony from Butterfield that there was direct contact, much less contact
sufficient to establish a “privity-like” relationship, indirect evidence of a single
communication is simply too thin a reed on which to find a triable issue of fact as
to whether Butterfield had the requisite special relationship with Morgan Stanley.54
Thus, Butterfield’s negligent misrepresentation claim is also dismissed.
The Effect of Disclaimers on Plaintiffs’ Negligent
Disclaimers of Representations Do Not Foreclose a Claim
for Negligent Misrepresentation Where the Relevant Facts
Were Within Defendant’s Peculiar Knowledge
Morgan Stanley argues that notwithstanding any personalized
See 9/14/11 Butterfield 30(b)(6) Deposition (“Butterfield Dep.”) at
64-69, Ex. 6 to Rouhandeh Decl. Plaintiffs cite deposition testimony that the
individual who decided to purchase Cheyne for Butterfield “had to have
[considered the ratings because] [w]e are bound by the AAA rating statistics that
S&P puts in front of us.” Pl. Opp. at 8 (quoting Butterfield Dep. at 246:18-247:4).
However, there is no evidence that Morgan Stanley was responsible for providing
Butterfield with those ratings and it is well established that Morgan Stanley was
not the maker of the statements.
See Ravenna, 734 N.Y.S.2d at 21 (allegations of a “one-time meeting,
which did not even create a business relationship, cannot be said to have created a
relationship of trust and confidence”).
marketing efforts it made toward plaintiffs, “the requisite relationship cannot be
established in the commercial context where, as here, the defendant disclaimed any
representations.”55 The Information Memoranda for each category of Rated Note
Morgan Stanley (as a Placement Agent or in any other capacity)
. . . [has not] independently verified the information contained
herein . . . [and accordingly makes] no representation, warranty
or undertaking, express or implied . . . as to the accuracy or
completeness at any time of the information contained or
incorporation in this Memorandum and expressly do[es] not
undertake . . . to advise any investor in the Capital Notes of any
information coming to [its] attention . . . .56
Although the Second Circuit has, on several occasions, dismissed
negligent misrepresentation claims on the basis of substantially similar disclaimers,
it has also recognized that such disclaimers may not negate a “special duty of care .
Def. Mem. at 4. In denying Morgan Stanley’s motion to dismiss
plaintiffs’ negligent misrepresentation claims in King County, I stated that
“defendant’s awareness of or intention to induce plaintiff’s reliance may be
relevant to the ‘special relationship’ analysis” but “sophistication of plaintiffs, the
existence of disclaimers, and a defendant’s possession of unique or special
expertise are generally only relevant to whether or not a plaintiff reasonably
relied,” which is a separate element of negligent misrepresentation. 863 F. Supp.
2d at 312 (emphasis added).
U.S. Capital Note Information Memorandum (“CN IM”) at
MS_000014800-01, Ex. 1 to Rouhandeh Decl.; U.S. Commercial Paper Program
(“CP IM”) at MS_000097393 Information Memorandum, Ex. 2 to Rouhandeh
Decl.; U.S. Medium Term Note Program Information Memorandum (“MTN IM”)
at MS_000646550, Ex. 3 to Rouhandeh Decl..
. . giv[ing] rise to an exceptional duty regarding commercial speech and justifiable
reliance on such speech”57 where the subject of the alleged misrepresentation –
here the actual credit-worthiness of the Rated Notes – is peculiarly within a
defendant’s knowledge.58 Because plaintiffs here have raised a question of fact as
to whether the misrepresentations were peculiarly within Morgan Stanley’s
knowledge, these disclaimers do not, as a matter of law, foreclose a negligent
Disclaimers of a Special Relationship Foreclose a Claim for
In addition to the above disclaimers of representations, the CP and
MTN Information Memoranda provide that
[because] the Issuer relies on the Section 3(c)(7) Exclusion [which
limits beneficial ownership of Notes to QPs and QIBs in
accordance with the requirements of Rule 144A] each purchaser
or other transferee of Notes will be deemed [agreed that] none of
the Issuer, the Placement Agents, . . . the Manager or any of their
Kimmell, 89 N.Y.2d at 264.
See Landesbank Baden-Wurttemberg v. Goldman, Sachs & Co., 478
Fed. App’x 679, 682-83 (2d Cir. Apr. 19, 2012) (rejecting the argument that
disclaimers “requir[ing] Landesbank to represent that it was a ‘sophisticated
investor’ and had sufficient access to financial and other information to make an
informed investment decision” did not undermine justifiable reliance because
plaintiffs failed to plausibly allege that the allegedly misrepresented facts were
peculiarly within defendants’ knowledge); Dallas Aerospace, 352 F.3d at 789
(“[Plaintiff] cannot claim it relied on [defendant’s] special expertise because it is
clear that [plaintiff] itself had the relevant expertise at issue.”).
respective affiliates is acting as a fiduciary or financial or
investment adviser for the purchaser; (ii) the purchaser is not
relying (for purposes of making any investment decision or
otherwise) upon any advice, counsel, or representations (whether
written or oral) . . . other than those (if any) set forth in a current
offering circular for such Notes and any representations expressly
set forth in a written agreement . . . .59
Plaintiffs State Board of Administration of Florida (“FSBA”), SEI Investments
Company (“SEI”), SFT Collective Investment Fund (“SFT”), and Commerzbank
AG (“Commerzbank”) all purchased Commercial Paper or Medium Term Notes.60
The Second Circuit recently held that identical disclaimers of a
relationship between a Placement Agent and an investor negated any “special
relationship” for the purposes of establishing a claim for negligent
misrepresentation.61 Plaintiffs point to no evidence of communications between
CP IM at MS_000097446-7; MTN IM at MS_000646657-9
(emphases added). The Information Memoranda specify that “[r]eferences . . . to
the ‘relevant Placement Agent’ shall, . . . be to all Placement Agents agreeing to
offer and sell such Notes.” MTN IM at MS_000646546. The fact that Morgan
Stanley was also an Arranger does not negate the applicability of this disclaimer
because its relationship with plaintiffs was undertaken in its capacity as a
Placement Agent. Even if it touted its role as Arranger to market the SIV, any
duties arising out of that status would be owed solely to Cheyne.
See NAC ¶¶ 17, 18. King County, SEI Investment Strategies, LLC
and Butterfield also invested in CP or MTN, however, I have already concluded
that they cannot state a negligent misrepresentation claim because they lacked any
direct contact with Morgan Stanley. See supra Part IV.A.
See Landesbank, 478 Fed. App’x at 682 (affirming dismissal of a
claim for negligent misrepresentation where “[t]he Offering Circular by which the
Morgan Stanley and any plaintiff, either prior or subsequent to receipt of the
Information Memoranda, in which Morgan Stanley represented itself as an adviser
or otherwise in a special relationship of trust with plaintiffs sufficient to overcome
the disclaimer of such a relationship in the Information Memoranda.62
 notes were marketed disclaimed both the existence of a special relationship of
trust or confidence between the defendants and [plaintiff] and any particular
expertise on the part of the defendants with respect to the credit quality of the 
notes”). Accord HSH Nordbank AG v. UBS AG, 941 N.Y.S.2d 59, 76 (1st Dept.
2012) (finding that the special relationship was foreclosed as a matter of law where
the “parties expressly agreed that they were dealing with each other at arm’s
length, that UBS was not acting as HSH’s financial or investment advisor,” and
that HSH was ‘not relying (for purposes of making any investment decisions or
otherwise) upon any advice, counsel or representations . . . of [UBS]’”). The
Offering Circular in Landesbank stated that “neither Goldman nor TCW was
‘acting as a fiduciary or financial or investment advisor for [Landesbank] ... [and
Landesbank was] not relying ... upon any advice, counsel or representations ... of
[Defendants] other than in the Circular.’” Landesbank Baden-Wurttemberg v.
Goldman, Sachs & Co., 821 F. Supp. 2d 616, 619 (S.D.N.Y. 2011).
Cf. Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d
87, 104 (2d Cir. 2001) (declining to dismiss a claim for negligent
misrepresentation where a disclaimer of representations “would not cover the
subsequent telephone conversation [making representations]”); Basis Yield Alpha
Fund (Master) v. Goldman Sachs Grp., Inc., No. 652996/2011, 2012 WL 5187653,
at *7 (Sup. Ct., N.Y. Co., Oct. 18, 2012) (“Goldman allegedly made numerous and
repeated representations to BYAFM in emails and during conference calls that
specifically addressed the concerns at issue in this case.”). Plaintiffs argue that
“[Morgan Stanley] itself described its relationship with investors as something
more than a typical business relationship [by] emphasiz[ing] that it ‘takes pride in
giving the most accurate and helpful market intelligence and trading advice to each
of our issuing clients.’” Pl. Opp. at 24 (quoting Morgan Stanley Marketing
Materials at MS_ 000473256, Ex. 69 to Drosman Decl.). However, this statement
was made with respect to issuing clients such as Cheyne, not investors, and was not
made to any plaintiff in this case. Plaintiffs cite other marketing documents in
The fact that plaintiffs were not in a contractual relationship with
Morgan Stanley strengthens the argument that such disclaimers, to which plaintiffs
are deemed to have agreed by their purchase of the Rated Notes, foreclose the more
elusive privity-like relationship.63 Moreover, that these disclaimers of a fiduciary
or advisory relationship are expressly premised on the fact that these transactions
were, by law, reserved for sophisticated investors strengthens their enforceability.
While a plaintiff’s sophistication neither automatically forecloses a duty of care,
nor necessarily undermines reasonable reliance, in the absence of contractual
privity much of the “special relationship” inquiry as set forth in Kimmell and
which Morgan Stanley emphasized that it has “recognized the importance of
investor marketing and education,” which has “allowed us to build strong
relationships with investors built on respect and trust,” Fortis Summary at
MS_000201634, and that it “build[s] unique relationships with money market
investors . . . and often becom[es] their trusted advisor in money markets,” Morgan
Stanley ABCP Marketing Materials at MS_000302406, Ex. 1 to Drosman Decl. I
need not consider whether these statements would have been sufficient to override
the disclaimers of relationship had they been made directly to plaintiffs in
conjunction with the sale of the Cheyne SIV because plaintiffs offer no evidence
that such statements were made to them.
See Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson,
541 N.Y.S.2d 335, 339 (1989) (holding that, absent privity, New York defines the
duty of care giving rise to claims for negligent misrepresentation “more narrowly
than other jurisdictions”). Accord King County, 863 F. Supp. 2d at 307 (“In the
absence of actual contractual privity, plaintiffs alleging a special relationship
sufficient to give rise to a duty face a ‘heavy burden.’”). Cf. Pl. Opp. at 20
(“[d]efendants’ reliance on authority concerning contractual disclaimers is
unpersuasive [because] [d]efendants long ago prevailed on their argument that
there were no contracts between MS and plaintiffs”) (emphasis added).
Credit Alliance is about the parties’ understanding of the nature of their
relationship. It is therefore relevant that plaintiffs were sophisticated investors
who represented that they understood the nature of the transaction including that
their relationship with Morgan Stanley was not one of trust entailing an
“exceptional” duty to speak with care.
Where there is no special relationship, plaintiffs cannot establish the
existence of a duty to impart correct information and their claim necessarily fails.64
Thus, the negligent misrepresentation claims of FSBA, SEI and SFT are dismissed
and Commerzbank’s negligent misrepresentation claims based on its purchase of
CP or MTNs are also dismissed.
Whether Morgan Stanley’s Communications With Capital Note
Plaintiffs Create a Disputed Issue of Fact as to the Existence of a
Unlike the MTN and CP Information Memoranda, the Capital Note
Information Memorandum contained no explicit disclaimer of a fiduciary or
advisory relationship on the part of Placement Agents. I have already concluded
See Mandarin Trading, 919 N.Y.S.2d at 470 (“the existence of a
special or privity-like relationship imposing a duty on the defendant to impart
correct information to the plaintiff” is an element of negligent misrepresentation).
Although Kimmell suggests that expertise alone could suffice to establish the
requisite special relationship, this case involves Morgan Stanley’s dissemination of
allegedly false statements by the Rating Agencies. Morgan Stanley’s expertise is
insufficient, absent a special relationship of trust, to create the requisite duty.
that the disclaimers of representations regarding the accuracy of the ratings do not
necessarily foreclose the existence of a special relationship resulting in a duty of
care and justifiable reliance.65 However, Morgan Stanley argues that, disclaimers
aside, its interaction with plaintiffs was typical of an arms-length transaction.66
Plaintiffs, by contrast, argue that their relationship with Morgan Stanley was akin
to the relationship in Kimmell, where the New York Court of Appeals held plaintiff
had established the requisite duty of care in a commercial context.67
See supra Part IV.B.1.
See Def. Mem. at 9.
Kimmell involved claims by investors in a project developed by a
corporation of which Kimmell was chief financial officer and chairman of the
board, in part because “the company believed that his reputation would enhance its
credibility with potential investors.” 89 N.Y.S.2d at 260. In this capacity, Kimmell
sought investors for the project. See id. at 261. The court found that a duty of care
existed where Kimmell contacted plaintiffs, generated and distributed projections
for the purpose of providing plaintiffs with information about potential returns on
the project, met with each plaintiff, urged plaintiffs to rely on the projections,
offered “hot comfort” should plaintiff entertain any reservations about investing,
provided updated projections with the expectation that they would be routed to
plaintiffs, and received a commission. Id. at 265. See also Suez, 250 F.3d at 103
(plaintiff adequately alleged a special relationship where “defendants initiated
contact with plaintiffs, induced them to forebear from performing their own due
diligence, and repeatedly vouched for the veracity of the allegedly deceptive
information”); Smith v. Ameriquest Mortg. Co., 876 N.Y.S.2d 447, 450 (2d Dep’t
2009) (finding a triable issue of fact as to whether the requisite special relationship
existed where defendant “personally solicited the plaintiff to refinance her
mortgage with [his company], and came to her home twice to provide her with
information about the transaction in an effort to convince her that the transaction
was in her best interests”).
It is not easy to draw the line between the typical relationship of a
Placement Agent and a sophisticated investor, and one which goes beyond an arms
length transaction giving rise to a duty of care regarding commercial speech.
However, I find that an issue of fact exists where Morgan Stanley acted as more
than a mere agent of the Issuer and “appeared to possess – and held [itself] out as
possessing – special knowledge about the [SIV] , . . . knew that plaintiffs sought
information about [the ratings] to aid their investment decision and  supplied it
for that purpose.”68 Certain plaintiffs have proffered evidence that Morgan Stanley
affirmatively solicited their investment, made numerous in-person, email and
telephone communications over significant periods of time, provided
individualized memoranda and, in some cases made additional overtures after
plaintiffs initially invested, touting the success of the SIV to encourage further
investment. Significantly, there is evidence that in soliciting these investments
Morgan Stanley emphasized its dual role as structurer and Placement Agent,
Suez, 250 F.3d at 104. In Suez, the Second Circuit upheld negligent
misrepresentation claims against a bank retained to market a corporation’s
securities where the bank approached plaintiffs and, in order to solicit their
investments, provided them with a report by an independent investigator regarding
the corporation, which was modified to exclude certain relevant information, and
discouraged them from conducting their own diligence. See id. Although
plaintiffs do not allege that Morgan Stanley discouraged them from conducting
their own diligence, they allege that they could not have discovered the
information which was the subject of the alleged misrepresentation.
including that it received structuring and placement fees from the Issuer that came
from the profits of the SIV.69 Thus, in light of my conclusion that there is a
question of fact whether Morgan Stanley had specialized expertise, and peculiar
knowledge regarding the ratings which may overcome the disclaimers, and
understood the purpose for which the ratings were supplied, Morgan Stanley’s
motion to dismiss the negligent misrepresentation claims is denied as to the
following plaintiffs: ACDB,70 Commerzbank,71 Gulf International Bank, BSC
See 4/28/05 Email from Morgan Stanley to NACF at
NACFe00001234, Ex. 47 to Drosman Decl. (explaining that “MS is participating
in the profit because that is how we are getting paid our structuring and placement
Morgan Stanley contacted ADCB regarding the Cheyne SIV and
encouraged it to invest, touting the portfolio as a “high quality one” comprised of
“highly rated structured finance assets” with a “very reputed manager.” 4/13/05
Email from Morgan Stanley to Abu Dhabi re: Cheyne SIV at MS_000221694., Ex.
9 to Drosman Decl. Morgan Stanley emphasized that the SIV was “designed to
invest in highly rated term assets.” Id. at MS_000221704. Morgan Stanley
stressed that the ratings were constantly monitored. See 6/28/05 Email from
Morgan Stanley to ADCB at MS_000222133, - 136. In addition, Morgan Stanley
continued to meet with Abu Dhabi analysts after they invested in July 2005, and
encouraged them to increase their investment. See 5/26/06 Internal Morgan
Stanley Email re: ADCB at MS_000163004, Ex. 12 to Drosman Decl. (discussing
dinner with ADCB); 4/13/07 Email from Morgan Stanley to ADCB re: Cheyne
SIV Roadshow, Ex. 17 to Drosman Decl. (discussing 2007 meeting in United Arab
Emirates with Abu Dhabi).
Morgan Stanley contacted Commerzbank in November 2004 and
affirmatively encouraged its investment in the Cheyne SIV. See 11/22/04 Email
from Morgan Stanley to Commerzbank, Ex. 19 to Drosman Decl. Morgan Stanley
provided individualized memoranda addressing SIVs, and the Cheyne SIV in
(“GIB”),72 National Agricultural Cooperative Federal (“NACF”),73 Global
Investment Services Limited (“NZ Funds”),74 and Bank Hapoalim B.M.
particular, which highlighted the “high quality credit portfolio” and careful design
of “rating agency methodologies.” Memo to Commerzbank re: SIVs at
MS_000601014, Ex. 20 to Drosman Decl.
A GIB representative testified that Morgan Stanley “tapped on GIB’s
door [and] market[ed] Cheyne . . . for over two years before [GIB] invested in it.”
30(b)(6) Deposition of GIB at 90:2-5, Ex. 27 to Drosman Decl. Morgan Stanley
urged GIB to purchase the Cheyne SIV and sent individualized memoranda
including statements that Cheyne’s model will be “approved by and calibrated to
the models used by the Rating Agencies” and that “Morgan Stanley is currently
finalizing the last structural points with the rating agencies” but that “all the
analysis required by the rating agencies has already been undertaken” and Morgan
Stanley has received written confirmation of the expected ratings. See 4/28/05
Email from Morgan Stanley to GIB attaching Individualized Memoranda
Addressing Questions from a Conference Call, Ex. 28 to Drosman Decl.
Morgan Stanley contacted NACF to market the Cheyne SIV and
provided substantial individualized attention– specifically five individualized
memoranda addressing NACF’s questions, including concerns about ratings, and
in-person meetings. See 10/14/04 Email from Morgan Stanley to, inter alia,
NACF, Ex. 45 to Drosman Decl. (noting that the SIV contained “very high quality
underlying assets,” that rating agencies review the portfolio every week and that
“SIVs must adhere to stricter rating agency . . . standards compared to typical CDO
structures”); 5/5/05 Memorandum to NACF re: Follow Up Questions, Ex. 48 to
Drosman Decl. See also Exs. 46, 47 to Drosman Decl. (emails answering NACF
questions); 4/12/06 Internal Morgan Stanley Email re: meeting with NACF in Asia.
NZ Funds was solicited to invest in Cheyne in November 2004. See
11/1/04 Email from Morgan Stanley to NZ Funds, Ex. 52 to Drosman Decl. NZ
Funds received numerous follow ups from Morgan Stanley, including
individualized memoranda. See, e.g., 6/9/05 Email from Morgan Stanley to NZ
Funds, Ex. 54 to Drosman Decl. (attaching individualized memorandum); 12/11/06
Email from Morgan Stanley to NZ Funds (attaching updated presentation on
mezzanine capital notes and individualized memorandum). In addition, after NZ
However, Deutsche Postbank AG (“Postbank”)76 and Bank SinoPac
Funds’ first purchase, Morgan Stanley continued to communicate with NZ Funds
regarding the investment. See 1/14/07 Email from Morgan Stanley to NZ Funds,
Ex. 60 to Drosman Decl. (“The SIV structure permits investments in a higher
quality portfolio than a HG ABS CDO” and SIVs can “take advantage of changing
market conditions without compromising rated tranches”).
Morgan Stanley stated that it “built a relationship [at Hapoalim] and
got him involved in transactions such as the Cheyne SIV.” 11/27/06 Internal
Morgan Stanley Email at MS_001571258, Ex. 39 to Drosman Decl. See also
6/7/06 Internal Morgan Stanley Email, Ex. 30 to Drosman Decl. (discussing
making inroads with Hapoalim’s structured finance group, including with respect
to Cheyne SIV). In addition, Morgan Stanley touted its own “commitment to the
vehicle” as a recipient of fees for its “ongoing placement and structuring role” in
addition to being one of three Senior Notes dealers. 7/25/06 Email from Morgan
Stanley to Hapoalim re: Cheyne Question, Ex. 34 to Drosman Decl. (attaching
Individualized Memorandum discussing, amongst other things, Morgan Stanley’s
role as Structurer and Placement Agent, as a “key ingredient” in delivering
“attractive returns to investors”). Finally Morgan Stanley forwarded to Hapoalim
an evaluation by its “structurers” of the various notes offered and was “pushing for
the combo note” in part on the ground that it was “publicly rated Baa2 by
Moodys”. 7/20/06 Email from Morgan Stanley to Hapoalim, Ex. 38 to Drosman
The only evidence plaintiffs put forth regarding the relationship
between Morgan Stanley and Postbank are internal Morgan Stanley emails
discussing a meeting as part of a roadshow, Ex. 61 to Drosman Decl., and a call
that it arranged between Postbank and Cheyne where Postbank obtained
information, Ex. 62 to Drosman Decl. The fact that Morgan Stanley needed
Postbank’s investment in order to get its fees, see Ex. 64 to Drosman Decl., does
not aid Postbank’s case that it had a special relationship of trust with Morgan
(“SinoPac”)77 have not put forth evidence beyond generic communications
regarding potential investment in the Cheyne SIV over a period of a couple
months. None of these communications suggest that Morgan Stanley was any
more than a typical Placement Agent, an intermediary between Cheyne and the
potential investors. If these communications could give rise to a claim for
negligent misrepresentation then any Placement Agent would be liable and the
word “exceptional” in Kimmell would be rendered meaningless.
For the foregoing reasons, Morgan Stanley’s motion for summary
judgment on plaintiffs’ negligent misrepresentation claim is granted as to
Butterfield, King County, SEI Investments Company, SEI Investment Strategies,
LLC, SFT Collective Investment Fund, FSBA, Postbank and Sinopac. The motion
Morgan Stanley contacted Sinopac in July 2005 regarding the Cheyne
SIV and sent marketing material. See Exs. 79, 80 to Drosman Decl. Although
Morgan Stanley admitted to having “spent so much time and relationship capital”
securing Sinopac’s investment, see 8/11/05 Internal Morgan Stanley Email at
MS_001509459-60, Ex. 84 to Drosman Decl. (reminding that it “took lots of effort
to get them interested again”), the entire relationship appears to have been over the
course of several months and Morgan Stanley appears to be acting exclusively as
an intermediary, passing along generic information from Cheyne and the Rating
Agencies, rather than making any particular representations about its own role in
the SIV. See, e.g., Ex. 84 (stating concern that Sinopac will have a bad impression
of Cheyne because of its failure to answer simple questions); Ex. 86 (stating that
the letter from a the rating agency is “stronger than anything”); Ex. 83 (sending a
rating letter from Moody’s to Sinopac).
is denied as to ADCB, Commerzbank, GIB, Hapoalim, NACF, NZ Funds.
As a procedural matter, because the remaining plaintiffs' negligent
misrepresentation claims will depend both on whether or not the actual
credit-worthiness of the Rated Notes is deemed within the peculiar knowledge of
Morgan Stanley,78 and on individualized proof regarding the requisite special
relationship giving rise to a duty of care, the remaining plaintiffs' negligent
misrepresentation case will be reserved for Phase II of the trial, in accordance with
my February 25,2013 Order bifurcating the trial (Dkt. No. 572). The Clerk of the
Court is directed to close this motion (Dkt. No. 522). A status conference in this
case is currently scheduled for March 15,2013 at 10:00 a.m.
New York, New York
March 5, 2013
See supra Part IV.B .1.
- Appearances For Plaintiffs:
Patrick J. Coughlin, Esq.
Daniel S. Drosman, Esq.
Jessica T. Shinnefield, Esq.
Jarrett S. Charo, Esq.
Darryl J. Alvarado, Esq.
Robbins Geller Rudman & Dowd LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Samuel H. Rudman, Esq.
Robbins Geller Rudman & Dowd LLP
58 South Service Road, Suite 200
Melville, NY 11747
Luke O. Brooks, Esq.
Jason C. Davis, Esq.
Robbins Geller Rudman & Dowd LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Additional Attorneys for Plaintiff State Board of Administration of Florida:
Marc I. Gross, Esq.
Tamar A. Weinrib, Esq.
Pomertantz Haudek Grossman & Gross LLP
100 Park Avenue
New York, NY 10017
For Defendants Morgan Stanley & Co. Incorporated and Morgan Stanley &
Co. International Limited:
James P. Rouhandeh, Esq.
Antonio J. Perez-Marques, Esq.
William R. Miller, Jr., Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
For Defendants Moody’s Investors Service, Incorporated and Moody’s
Investors Service Limited:
Joshua M. Rubins, Esq.
James J. Coster, Esq.
Mario Aieta, Esq.
James I. Doty, Esq.
Satterlee Stephens Burke & Burke LLP
230 Park Avenue, 11th Floor
New York, NY 10169
Mark A. Kirsch, Esq.
Christopher M. Joralemon, Esq.
Joel M. Cohen, Esq.
Lawrence J. Zweifach, Esq.
Mary K. Dunning, Esq.
Gibson, Dunn & Crutcher, LLP
200 Park Avenue, 48th Floor
New York, NY 10166
For Defendants Standard & Poor’s Rating Services and The McGraw-Hill
Floyd Abrams, Esq.
Dean I. Ringel, Esq.
Charles A. Gilman, Esq.
Tammy L. Roy, Esq.
Jason M. Hall, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
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