Arco Capital Corporation Ltd. v. Deutshe Bank AG
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)
CT OF NEW YORK
ARCO CAPITAL CORPORATION LTD.,
12 Civ. 7270
A P PEA RAN C E S:
MILLER & WRUBEL P.C.
570 Lexington Avenue
New York, NY 10022
John G. Moon, Esq.
S. Christopher Provenzano, Esq.
222 East 41 st Street
New York, NY 10017
Jayant W. Tambe, Esq.
Kelly A. Carrero, Esq.
1 O. Thayer, Esq.
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.
Upon the conclusions set forth below, the motion
is granted and the FAC is dismissed with prejudice.
This action was commenced on September 27, 2013.
December 3, Deutsche Bank moved to dismiss the original
This motion was granted on June 6, 2013
(the "June 6
On July 3, Plaintiff filed the FAC.
On July 29, 2013, Deutsche Bank moved to dismiss the
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].
The transaction giving
tial complaint and
se to this action was alleged
scribed in the June 6 Opinion.
FAC, filed on July 5, 2013,
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
97.) The transaction is al
d as follows:
In or about March 2007, Deutsche Bank, aIle
terms of the CRAFT Transaction, designat
ions that did not con
rm to International
Swaps and Der
i ves Association, Inc.
(" ISDA") standa
in or about early 2008
Arco learned of this brea
when two such Re
, and demanded
iate the terms of its purchase of certain
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").
Notes, as "securit
same Eligibility Cr
r the Exchange Act,
ria and other obligations as the CRAFT
Notes, including the requirement that an "I
Accountant" certify compliance with the Eligibility Criteria
Deutsche Bank also agreed to additional
obligations, such as not including non-ISDA derivatives as
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