Arco Capital Corporation Ltd. v. Deutshe Bank AG
Filing
37
OPINION re: 28 MOTION to Dismiss Amended Complaint filed by Deutshe Bank AG. Based upon the conclusions set forth above, the motion of Deutsche Bank to dismiss the FAC is granted in its entirety and Counts I and II of the FAC is dismissed with prejudice. (Signed by Judge Robert W. Sweet on 11/27/2013) (lmb)
UNITED
SOUTHERN DI
DISTRICT COURT
CT OF NEW YORK
--------------------------------x
ARCO CAPITAL CORPORATION LTD.,
Plaintiff,
12 Civ. 7270
inst
OPINION
BANK AG,
Defendant.
-x
A P PEA RAN C E S:
Att
for Plaintiff
MILLER & WRUBEL P.C.
570 Lexington Avenue
New York, NY 10022
By:
John G. Moon, Esq.
S. Christopher Provenzano, Esq.
Atto
nt
JONES DAY
222 East 41 st Street
New York, NY 10017
By:
Jayant W. Tambe, Esq.
Kelly A. Carrero, Esq.
1 O. Thayer, Esq.
-------------------------------,--------_.._--"<..
Sweet, D.J.
Deutsche Bank AG ("Deutsche Bank" or "Defendant") has
moved pursuant to Rule 9(b) and l2(b) (6) of the Federal Rules of
Civil Procedure and the Private Securities Litigation Reform Act
to dismiss the First Amended Complaint
(the "First Amended
Complaint" or "FAC") of Arco Capital Corporation Ltd.
"Plaintiff").
("Arco" or
Upon the conclusions set forth below, the motion
is granted and the FAC is dismissed with prejudice.
Prior Proceedings
This action was commenced on September 27, 2013.
On
December 3, Deutsche Bank moved to dismiss the original
This motion was granted on June 6, 2013
Complaint.
Opinion").l
(the "June 6
On July 3, Plaintiff filed the FAC.
On July 29, 2013, Deutsche Bank moved to dismiss the
FAC.
The instant motion was heard and marked fully submitted on
October 2, 2013.
1 This Court's June 6,
2013 Opinion dismissing Plaintiff's original complaint
is reported at Arco Capital Corp. Ltd. v. Deutsche Bank AG, 12 Civ. 7270,
2013 WL 2467986 (S.D.N.Y. June 6, 2013) [Docket ("Doc.") #23].
1
Facts
The transaction giving
in the
tial complaint and
The addit
se to this action was alleged
scribed in the June 6 Opinion.
FAC, filed on July 5, 2013,
allegations
principally involve a July 2008 transaction in which Arco
purchased notes from Earl's Eight Limited, a special purpose
rated in the Cayman Islands ("Earl's
entity i
~
97.) The transaction is al
ght").
(FAC
d as follows:
In or about March 2007, Deutsche Bank, aIle
dly in
violation of
terms of the CRAFT Transaction, designat
Reference ObI
ions that did not con
rm to International
Swaps and Der
i ves Association, Inc.
(" ISDA") standa
~~
93-94.)
rence Obligations
Deutsche Bank
CRAFT Notes.
in or about early 2008
Arco learned of this brea
when two such Re
(FAC
, and demanded
iate the terms of its purchase of certain
(FAC
~
94.)
Deutsche Bank
d so, and in July
ckaged certain CRAFT Notes into
2008, Deutsche Bank
securities called Earls Eight Series 469
B Pass Though
Notes ("Earls Eight Notes").
Earls Eight
Notes, as "securit
same Eligibility Cr
s"
(FAC
~~
95-97.)
r the Exchange Act,
incorporated the
ria and other obligations as the CRAFT
Notes, including the requirement that an "I
2
ndent
Accountant" certify compliance with the Eligibility Criteria
upon default.
Deutsche Bank also agreed to additional
obligations, such as not including non-ISDA derivatives as
Reference Obligations.
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