Thales Alenia Space France v. Thermo Funding Company, LLC

Filing 28

OPINION AND ORDER re: 12 MOTION to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted filed by Thermo Funding Company, LLC. Thermo's motion to dismiss under Rules 12(b)(2) and 12(b)(6) is denied. The Clerk of the Court is directed to close this motion (Docket No. 12). A teleconference is scheduled for June 27, 2013 at 3:30 PM. (Telephone Conference set for 6/27/2013 at 03:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 6/25/2013) (ft) Modified on 6/25/2013 (ft).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

, 1

THALES ALENIA SPACE FRANCE,

.. .

~

Plaintiff,

OPINION AND ORDER
- against-

13 Civ. 712 (SAS)
THERMO FUNDING COMPANY, LLC,
Defendant.

._--------------------------------------------------

)(

SHIRA A. SCHEINDLIN, U.S.D.J.:
1.

INTRODUCTION
PlaintiffThales Alenia Space France ("Thales") filed this action

against Thermo Funding Company, LLC ("Thermo") for an alleged breach of
contract. Thermo moved to dismiss for failure to state a claim and lack of personal
jurisdiction, arguing that Thales did not adequately plead the validity of the
agreement between the parties (Thales alleges personal jurisdiction on the basis of
the agreement's forum-selection clause). Because Thales has plausibly alleged the
existence of a binding contract between the parties, Thermo's motion to dismiss
under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) is denied.

1

II.

FACTUAL BACKGROUND
This action arises from a series of contractual relationships between

three entities. Thales is a French aerospace company involved in the manufacture
of low Earth orbit (“LEO”) satellites.1 Globalstar, Inc. (“Globalstar”) is a provider
of satellite voice and data services that operates LEO satellites.2 Thermo is a
private equity firm that owns a controlling interest in Globalstar.3
A.

The Parties’ Business Relationships
In late 2006, Globalstar contracted with Thales’s predecessor, Alcatel

Alenia Space France, for the purchase of forty-eight new LEO satellites.4 These
were to be Globalstar’s “second generation constellation of satellites.”5 In 2009,
Globalstar and Thales executed a new agreement (the “Supply Agreement”)
amending the pricing and other terms of the 2006 contract.6

1

See First Amended Complaint (“FAC”) ¶¶ 3, 9.

2

See id. ¶ 8.

3

See id. ¶¶ 4, 8.

4

See id. ¶ 9.

5

Id.

6

See id. ¶ 10.

2

In order to fund this arrangement, Globalstar arranged for financing
from the Compagnie Française d’Assurance pour le Commerce Extérieur
(“COFACE”) — the French export credit agency — and several French banks.7 As
part of this agreement, Globalstar was required to fund a Debt Service Reserve
Account (“DSRA”) of $12.5 million, and COFACE and the banks requested
Thales to provide a guarantee of the full amount of the DSRA.8 Thales agreed,
provided that Thermo reimburse Thales for any payments it makes under the
guarantee.9 This arrangement between Thermo and Thales was memorialized in a
separate 2009 contract (the “Reimbursement Agreement”), which provided that
such reimbursements must be made by December 31, 2012, or within ten business
days of a change in control of Globalstar.10 The Reimbursement Agreement also
contained English choice-of-law and forum-selection provisions.11 Ultimately,

7

See id. ¶ 11.

8

See id. ¶¶ 11-12.

9

See id. ¶ 13.

10

See id.

11

See 6/5/09 Reimbursement Agreement (“Reimbursement
Agreement”), Ex. B to FAC, at 9.

3

Thales paid the maximum $12.5 million, thereby obligating Thermo to reimburse it
for the same amount.12
B.

The Thales-Globalstar Arbitration
In 2011, Globalstar initiated arbitral proceedings against Thales in

relation to its obligations under the Supply Agreement, and Thales filed
counterclaims against Globalstar.13 Thales prevailed in the arbitration, winning an
approximately €52.7 million award on its counterclaims.14 Thales then initiated an
action in this district to confirm and domesticate the award.15
Notwithstanding this dispute, Globalstar wished to continue its
relationship with Thales and to purchase six additional satellites.16 To this end,
Thales, Globalstar, and Thermo all entered into settlement discussions, which
ultimately resulted in several 2012 agreements, including the “Settlement

12

See FAC ¶¶ 14-15.

13

See id. ¶ 16; 6/24/12 Settlement Agreement (“Settlement
Agreement”), Ex. A to FAC, at 1.
14

See FAC ¶ 17.

15

See Settlement Agreement at 2.

16

See id.

4

Agreement” and the “Release Agreement.”17 All three entities signed these
agreements.18
The Release Agreement provided, in relevant part, that:
1.

2.

....
(d) The terms “Claim” or “Claims” shall mean any and
all claims, demands, actions, causes of action,
obligations, rights and liabilities, of any nature
whatsoever, and all associated damages . . . , refunds,
losses, profits, costs, arbitration costs and attorneys’
fees.
(e) The term “Released Claims” shall mean Claims . . .
whether or not now known or asserted, which any
Party ever had, now has, or ever will have against
another Party, including without limitation Claims
relating to any of the facts known to the Parties,
arising out of or in any way related to . . . the
Guarantee . . . .
....
....
(a) Upon the earlier of the [sic] (x) December 31, 2012
and (y) [another event], Thales hereby
unconditionally and irrevocably releases and forever
discharges Globalstar and Thermo from all Released
Claims . . . .19

17

See FAC ¶¶ 18-19.

18

See id. ¶ 19.

19

6/24/12 Release Agreement (“Release Agreement”), Ex. C to
Declaration of Elliot E. Polebaum in Support of Plaintiff’s Memorandum of Law in
Opposition to Motion to Dismiss, at 3 [Docket Nos. 16, 18]. While the Release
Agreement was not attached to the Complaint, this Court may still consider it
because of the explicit references to it found in both the Complaint (see FAC ¶ 19)

5

The Settlement Agreement then provided that “[o]n the New Contract Effective
Date or on December 31, 2012, whichever is earlier, Thermo shall pay to Thales
$12,500,000 in relation to the DSRA, by wire transfer . . . .”20 The Settlement
Agreement also contained New York choice-of-law and forum-selection
provisions.21
C.

The Instant Action
According to the Complaint, “Thermo failed to pay Thales $12.5

million by December 31, 2012.”22 On January 31, 2013, Thales filed suit in this
Court against Thermo to collect the funds allegedly due under the Settlement
Agreement.23 In response, Thermo moved to dismiss for failure to state a claim

and the Settlement Agreement (which was attached to the Complaint) (see
Settlement Agreement at 2-5) or because these documents “rel[y] heavily upon its
terms and effect.” See, e.g., International Audiotext Network, Inc. v. AT&T, 62
F.3d 69, 72 (2d Cir. 1995); Thomas v. Westchester Cnty. Health Care Corp., 232 F.
Supp. 2d 273, 275 (S.D.N.Y. 2002).
20

See Settlement Agreement at 3. The “New Contract Effective Date”
refers to the date that a new contract for the purchase of satellites would become
effective (an event that did not occur before December 31, 2012). See id. at 2-3;
FAC ¶ 22.
21

See Settlement Agreement at 5.

22

FAC ¶ 26.

23

See Complaint.

6

and lack of personal jurisdiction.24 Thermo argues that its promises in the
Settlement Agreement are unenforceable due to lack of consideration.25 Thermo
claims that this is because the statements regarding the DSRA in the Settlement
Agreement were mere reiterations of a preexisting promise to pay under the 2009
Reimbursement Agreement (and thus cannot be consideration from Thermo under
the “preexisting duty rule”),26 and Thermo received no consideration at all from
Thales.27
III.

LEGAL STANDARD
A.

Failure to State a Claim
A pleading must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.”28 “Such a statement must . . . ‘give
the defendant fair notice of what the plaintiff’s claim is and the grounds upon

24

See Motion to Dismiss Plaintiff’s Complaint.

25

See Memorandum of Law in Support of Defendant’s Motion to
Dismiss (“Def. Mem.”) at 2.
26

See id. at 2, 5-8.

27

See id. at 2, 5, 7-8.

28

Fed. R. Civ. P. 8(a)(2).

7

which it rests.’”29 In deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court “must accept all non-conclusory factual allegations as true and draw all
reasonable inferences in the plaintiff’s favor.”30 The court then “determine[s]
whether [those allegations] plausibly give rise to an entitlement for relief.”31 A
claim is plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.”32
“In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”33 However, the court may also

29

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled in part on other grounds by
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-563 (2007)).
30

Simms v. City of New York, 480 Fed. App’x 627, 629 (2d Cir. 2012)
(citing Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008)).
31

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Accord Kiobel v. Royal
Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010).
32

Iqbal, 556 U.S. at 678.

33

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).

8

consider a document that is not incorporated by reference, “where the complaint
‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’
to the complaint.”34
B.

Personal Jurisdiction
The “plaintiff bears the burden of establishing that the court has

[personal] jurisdiction over the defendant.”35 When the issue “is decided initially
on the pleadings and without discovery, the plaintiff need only show a prima facie
case.”36 A court may consider materials outside the pleadings,37 but must credit a

34

Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006)). Accord Global Network Commc’ns, Inc. v. City of New York, 458 F.3d
150, 156 (2d Cir. 2006).
35

In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.

2003).
36

Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d
117, 120 (2d Cir. 1984). Accord Tamam v. Fransabank Sal, 677 F. Supp. 2d 720,
725 (S.D.N.Y. 2010) (“As no discovery has yet taken place, to survive a motion to
dismiss the plaintiff must plead factual allegations [that] constitute a prima facie
showing of jurisdiction.” (alteration in original) (internal quotation marks
omitted)).
37

See In re Stillwater Capital Partners Inc. Litig., 851 F. Supp. 2d 556,
566 (S.D.N.Y. 2012).

9

plaintiff’s averments of jurisdictional facts as true.38 “[A]ll allegations are
construed in the light most favorable to the plaintiff and doubts are resolved in the
plaintiff’s favor, notwithstanding a controverting presentation by the moving
party.”39 Nonetheless, where a defendant “‘rebuts plaintiffs’ unsupported
allegations with direct, highly specific, testimonial evidence regarding a fact
essential to jurisdiction — and plaintiffs do not counter that evidence — the
allegation may be deemed refuted.’”40
IV.

APPLICABLE LAW
A.

Claims for Breach of Contract
In a breach of contract case, a plaintiff must plead “(1) the existence

of a contract between itself and that defendant; (2) performance of the plaintiff’s
obligations under the contract; (3) breach of the contract by that defendant; and (4)

38

See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560,
567 (2d Cir. 1996).
39

A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).
Accord Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001).
40

Recurrent Capital Bridge I, LLC v. ISR Sys. & Sensors Corp., 875 F.
Supp. 2d 297, 304 (S.D.N.Y. 2012) (quoting Schenker v. Assicurazioni Generali
S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *3 (S.D.N.Y. July 15,
2002)).

10

damages to the plaintiff caused by that defendant’s breach.”41 The first of these
elements — the existence of a contract — is in part determined by the presence or
absence of consideration.42
1.

Consideration

In New York, “consideration is a necessary ingredient for an
enforceable contract.”43 Thus, unless consideration is otherwise unnecessary,44 the
promisee (or some other person) must give consideration to the promisor (or some
other person).45 “[A] promise to perform an existing legal or contractual obligation
is, without more, insufficient consideration to support a new contract.”46

41

Diesel Props S.r.I. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52
(2d Cir. 2011).
42

See, e.g., Roth v. Isomed, Inc., 746 F. Supp. 316, 319 (S.D.N.Y.

1990).
43

Id.

44

See, e.g., N.Y. Gen. Oblig. Law § 5-1103 (eliminating the
consideration requirement for written and signed modifications of preexisting
contracts).
45

See 22 N.Y. Jurisprudence 2d Contracts § 64 (2013).

46

International Paper Co. v. Suwyn, 951 F. Supp. 445, 448 (S.D.N.Y.
1997). Accord Goncalves v. Regent Int’l Hotels, Ltd., 58 N.Y.2d 206, 220 (1983).

11

Consideration does not have to benefit the promisor; it can benefit a
third party.47 For example (and relevant to the instant case), “the discharge of one
person from liability under a debt is a sufficient consideration for the promise of
another to pay.”48
2.

Release of Contractual Obligations

Parties to a contract may mutually agree to cancel and rescind the
contract.49 In addition, one party to an agreement may release another of a duty
owed to the maker of the release, and thus discharge the duty upon the occurrence
of any conditions provided for in the release.50 “The duty that is released need not
47

See, e.g., Mencher v. Weiss, 306 N.Y. 1, 8 (1953) (“[I]t is fundamental
that a benefit flowing to a third person or legal entity constitutes a sufficient
consideration for the promise of another.”). See also Restatement (Second) of
Contracts § 71(4) & cmt. e (1981) (“It matters not from whom the consideration
moves or to whom it goes. If it is bargained for and given in exchange for the
promise, the promise is not gratuitous.”); 22 N.Y. Jurisprudence 2d Contracts § 64
(“[T]o constitute an adequate consideration for a promise, the benefit need not
move to the promisor, as it may move to a third person.”).
48

County Trust Co. of N.Y. v. Mara, 273 N.Y.S. 597, 603 (1st Dep’t
1934) (citing Hayes v. Mestaniz, 29 N.Y.S. 1114 (Super. Ct. 1894), aff’d, 150 N.Y.
561 (1896)).
49

See Rodgers v. Rodgers, 235 N.Y. 408, 410 (1923).

50

See Restatement (Second) of Contracts § 284(1) (1981) (“A release is
a writing providing that a duty owed to the maker of the release is discharged
immediately or on the occurrence of a condition.”).

12

be matured.”51 A release of a preexisting obligation can occur at the same time the
parties enter into a new agreement, in which case the new promise is not
inadequate consideration under the preexisting duty rule.52
B.

Forum-Selection Clauses and Personal Jurisdiction
When forum-selection provisions are entered into “through ‘freely

negotiated agreements’ and are not ‘unreasonable or unjust,’ their enforcement
does not offend due process.”53 Agreement to an enforceable forum selection
clause constitutes consent to personal jurisdiction in the selected forum and

51

Id. cmt. a.

52

See Schwartzreich v. Bauman-Basch, Inc., 231 N.Y. 196, 203-05
(1921) (“Where the new contract gives any new privilege or advantage to the
promisee, a consideration has been recognized, though in the main it is the same
contract. . . . There is no reason that we can see why the parties to a contract may
not come together and agree to cancel and rescind an existing contract, making a
new one in its place. We are also of the opinion that reason and authority support
the conclusion that both transactions can take place at the same time.”).
53

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985)
(quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).

13

constitutes minimum contacts with that forum.54 The Second Circuit determines
enforceability of such provisions in a four-part analysis:55
The first inquiry is whether the clause was reasonably
communicated to the party resisting enforcement. The second
step requires us to classify the clause as mandatory or permissive,
i.e., to decide whether the parties are required to bring any dispute
to the designated forum or simply permitted to do so. Part three
asks whether the claims and parties involved in the suit are subject
to the forum selection clause.56
If the first three factors are met, the forum selection is presumptively enforceable,
shifting the burden to the resisting party for the fourth step.57 In this final step, the
resisting party may still prevail “by making a sufficiently strong showing that
‘enforcement would be unreasonable or unjust, or that the clause was invalid for
such reasons as fraud or overreaching.’”58 Otherwise, the forum selection clause,
assuming the contract itself is valid, will be enforced by the court.

54

See Koninklijke Philips Elecs. v. Digital Works, Inc., 358 F. Supp. 2d
328, 333 (S.D.N.Y. 2005) (“A valid forum selection clause establishes sufficient
contacts with New York for purposes of jurisdiction and venue.”).
55

See Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007).

56

Id. (citations omitted).

57

See id.

58

Id. at 383-84 (quoting Bremen, 407 U.S. at 15).

14

V.

DISCUSSION
A.

Thales Has Adequately Pled the Validity of the Settlement
Agreement
Assuming, as this Court must, that all facts alleged in the Complaint

are true,59 Thales has sufficiently stated a breach-of-contract claim for which relief
may be granted. In its motion, Thermo only contests the first element of a breach
of contract claim — the existence of a valid contract — by arguing lack of
consideration from both Thermo and Thales.60 However, the Complaint and the
text of the Settlement Agreement plausibly allege the existence of a bargained-for
exchange.
1.

Thales Has Pled Consideration from Thermo

Because Thales released “all claims, demands, actions, causes of
action, obligations, rights and liabilities” it might have against Thermo under the
Reimbursement Agreement,61 Thermo’s promise to pay $12.5 million in relation to
the DSRA was not a preexisting duty under the Reimbursement Agreement. By its

59

See Iqbal, 556 U.S. at 679.

60

See Def. Mem. at 5.

61

See Release Agreement at 3.

15

express terms, the Release Agreement releases claims arising from the
Reimbursement Agreement.62
The text of the Settlement Agreement reveals that the parties intended
to cancel their previous obligations and create a new agreement on the same
subject, which the law permits them to do.63 The very first paragraph states that the
Agreement “is intended by Thales, Globalstar and Thermo . . . to settle and
extinguish the obligations, disputes and differences hereinafter described.”64 When
viewed alongside the Release Agreement, this more than suffices to plausibly
allege the existence and validity of Thermo’s promise under the Settlement
Agreement.
To state a claim for which relief may be granted, Thales does not have
to counter every possible defense that Thermo could eventually raise. Because

62

See id.

63

See Schwartzreich, 231 N.Y. at 203-05.

64

Settlement Agreement at 1.

16

Thales has sufficiently pled each of the elements of a breach of contract,65 it is
premature to decide whether Thermo’s promise was a preexisting duty.
2.

Thales Has Pled That It Provided Consideration for the
Agreement

The text of the Settlement Agreement also expresses consideration
from Thales in exchange for Thermo’s promises. As mentioned earlier, the
purpose of the Settlement Agreement was “to settle and extinguish the obligations,
disputes and differences” between Thales, Globalstar, and Thermo.66 As the
Complaint alleges, this was done in the aftermath of an arbitral award against
Globalstar of over €52 million, and it was this award that caused the settlement
discussions among the parties and the ultimate signing of the Settlement and
Release Agreements.67

65

See Diesel Props, 631 F.3d at 52; FAC ¶¶ 19-20 (alleging that Thales
and Thermo signed the Settlement Agreement and that Thermo agreed under it to
pay Thales $12.5 million); id. ¶ 19 (alleging that Thales signed the Release
Agreement); id. ¶¶ 26, 32 (alleging Thermo’s breach by its failure to pay the $12.5
million); id. ¶¶ 32-33 (alleging damage to Thales as a result of Thermo’s breach).
66

See Settlement Agreement at 1.

67

See FAC ¶¶ 17-19.

17

Consideration does not have to flow directly to the promisor; it may
flow to a third party instead.68 In this case, the Complaint and the Settlement
Agreement clearly pled the existence of bargained-for consideration, which if not
flowing directly to Thermo was instead going to benefit Globalstar.69 The first
page of the Settlement Agreement states that it “is intended by Thales, Globalstar,
and Thermo . . . to settle and extinguish [their] obligations, disputes and
differences.”70 The Agreement states that it is made “for and in consideration of
the mutual covenants and undertakings herein set forth, and in the Release
Agreement,”71 which released Globalstar from roughly two-thirds of the total
arbitral award against it.72 Again, drawing all inferences in favor of Thales, the
Complaint sufficiently pleads the validity of the contract, which suggests the
presence of bargained-for consideration.

68

See, e.g., Mencher v. Weiss, 306 N.Y. 1, 8 (1953).

69

See FAC ¶¶ 17-19 (describing how the arbitral award led to the
settlement talks among Thales, Thermo, and Globalstar, which in turn resulted in
the signing of the Settlement and Release Agreements).
70

Settlement Agreement at 1.

71

Id. at 3.

72

See Release Agreement at 3.

18

B.

Thales Has Made a Prima Facie Showing That This Court Has
Personal Jurisdiction over Thermo
As discussed above, Thales has plausibly alleged the existence and

validity of the Settlement Agreement. That Agreement contains a New York
forum-selection clause, stating that “[a]ny dispute under this Agreement or any
action brought to enforce the terms of this Agreement shall be brought only in a
court of competent jurisdiction in New York.”73 The Agreement further provides
that “[t]he Parties specifically consent to jurisdiction in New York for purposes of
enforcing the terms of this Agreement.”74
Turning to the factors under Phillips v. Audio Active Ltd.,75 this Court
must enforce the Settlement Agreement’s forum-selection provision. First, the
provision (along with the jurisdictional consent) was communicated to Thermo
when it signed the Settlement Agreement.76 Second, the clause had mandatory

73

Settlement Agreement at 5.

74

Id.

75

494 F.3d at 383-84.

76

See, e.g., D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 103 (2d Cir.
2006) (holding that a party sufficiently consented to jurisdiction by signing an
agreement containing forum-selection and jurisdictional-consent clauses).

19

effect (“[a]ny dispute . . . shall be brought . . . .”).77 Third, the claims and parties
involved in the suit are subject to the forum selection clause — Thermo and Thales
are both parties to the Settlement Agreement, and Thales is alleging a breach of
that agreement by Thermo. Fourth, Thermo has failed to make “a sufficiently
strong showing,” or any showing, “that ‘enforcement would be unreasonable or
unjust, or that the clause was invalid for such reasons as fraud or overreaching.’”78
Additionally, the courts of England, where Thermo insists that this
action must be brought,79 have no interest in this case. As mentioned earlier, all of
Thermo’s obligations under the original Reimbursement Agreement, which
contained an English forum-selection clause, have been eliminated by the Release
Agreement80 — the only remaining agreement regarding the alleged $12.5 million
obligation is the Settlement Agreement. Because Thermo consented to the
exclusive jurisdiction of courts in New York for disputes arising out of the
Settlement Agreement, which is the agreement under which Thales is asserting its
claim for relief, Thales has made a prima facie showing of this Court’s personal
jurisdiction over Thermo.
77

Settlement Agreement at 5 (emphasis added).

78

Phillips, 494 F.3d at 384 (quoting Bremen, 407 U.S. at 15).

79

See Def. Mem. at 2.

80

See Release Agreement at 3.
20

VI.

CONCLUSION
For the reasons set forth above, Thermo's motion to dismiss under

Rules 12(b)(2) and 12(b)(6) is denied. The Clerk of the Court is directed to close
this motion (Docket No. 12). A teleconference is scheduled for June 27, 2013 at
3:30 PM.

Shira A. Scheindlin
V.S.D.1.
Dated:

New York, New York
June 25,2013

21

- Appearances For Plaintiff:
Elliot E. Polebaum, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
801 17th Street, NW
Washington, DC 20006
[phone]
[e-mail]
For Defendant:
Gerald S. Greenberg, Esq.
Taft Stettinius & Hollister LLP
425 Walnut Street, Suite 1800
Cincinnati, OH 45202
[phone]
[e-mail]

22