DNAML Pty, Limited v. Apple, Inc. et al

Filing 250

OPINION & ORDER.....The Defendants September 18 motion for summary judgment is granted and the claims asserted in this action are dismissed with prejudice. The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 12/16/2015) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
DNAML PTY, LIMITED,
:
:
Plaintiff,
:
:
-v:
:
APPLE INC.; HACHETTE BOOK GROUP,
:
INC.; HARPERCOLLINS PUBLISHERS, LLC;
:
VERLAGSGRUPPE GEORG VON HOLTZBRINCK
:
GMBH; HOLTZBRINCK PUBLISHERS, LLC
:
d/b/a/ MACMILLAN; THE PENGUIN GROUP, A :
DIVISION OF PEARSON PLC; and SIMON &
:
SCHUSTER, INC.,
:
Defendants.
:
:
-------------------------------------- X

13cv6516 (DLC)
OPINION & ORDER

APPEARANCES:
For plaintiff DNAML PTY, Ltd.:
Michael J. Guzman
Derek T. Ho
Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC
Sumner Square
1615 M Street, N.W., Ste. 400
Washington, D.C. 20036
For defendants:
For Apple Inc.:
Theodore J. Boutrous, Jr.
Daniel G. Swanson
Gibson, Dunn & Crutcher, LLP
333 South Grand Ave.
Los Angeles, CA 90071
Lawrence J. Zweifach
Gibson, Dunn & Crutcher, LLP
200 Park Ave.
New York, NY 10166

Cynthia Richman
Gibson, Dunn & Crutcher, LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
For Simon & Schuster, Inc.:
James W. Quinn
Yehudah L. Buchweitz
Jeff L. White
Weil Gotshal & Manges LLP
767 Fifth Ave.
New York, NY 10153
For Penguin Group (USA) Inc.:
Saul P. Morgenstern
Amanda C. Croushore
Margaret A. Rogers
Kaye Scholer LLP
425 Park Ave.
New York, NY 10022
For Hachette Book Group USA, Inc.:
Michael Lacovara
Richard Snyder
Samuel J. Rubin
Freshfields Bruckhaus Deringer US LLP
601 Lexington Ave.
New York, NY 10022
For HarperCollins Publishers LLC:
C. Scott Lent
Arnold & Porter LLP
399 Park Ave.
New York, NY 10022
For Macmillan Publishers Inc. and Verlagsgruppe Georg Von
Holtzbrinck GmbH:
Joel M. Mitnick
John Lavelle
Sidley Austin LLP
787 Seventh Ave.
New York, NY 10019

2

DENISE COTE, District Judge:
DNAML Pty, Ltd. (“DNAML”) brings this action against Apple
Inc. (“Apple”) and five book publishers (“Publisher Defendants”)
(collectively “Defendants”), pursuant to Section 1 of the
Sherman Antitrust Act, to recover damages DNAML asserts it
sustained due to the Defendants’ conspiracy to fix prices and
reduce competition in the e-book industry.

Following the

completion of fact discovery, the Defendants have moved for
summary judgment on several grounds, including DNAML’s lack of
standing.

Because the plaintiff was not the entity injured by

the violation of the antitrust laws alleged here, and did not
receive an assignment of the right to pursue this claim from the
injured party, it lacks standing to bring its antitrust claim
and the defendants’ motion for summary judgment is granted.
BACKGROUND
The following facts are undisputed or taken in the light
most favorable to plaintiff.

The business that became DNAML was

first established in 1999 as 1st Element Pty (“1st Element”).
In 2000 and 2001, 1st Element transferred its assets to DNAML
Pty, Ltd. (“Old DNAML”) in return for 960,000 shares of Old
DNAML.

As explained by their CEO, these businesses were focused

on providing solutions for the electronic publishing industry.
Among other things, Old DNAML developed a proprietary digital
rights management system as well as a proprietary e-book format

3

known as “.DNL.”

DNAML sold e-books published by only two of

the five Publisher Defendants, Hachette Book Group USA, Inc.
(“Hachette”) and HarperCollins Publishers LLC (“HarperCollins”).
In early 2010, the Publisher Defendants adopted an agency
model for the distribution of e-books.

DNAML alleges that the

Publisher Defendants adopted this model pursuant to their
participation with Apple in an antitrust conspiracy.

On March

1, 2010, DNMAL entered into an agency agreement that gave
Hachette the right to “determine the retail price of each
Digital Book . . . and all price policies applicable to sales to
end users . . . .”

While DNAML began negotiating an agency

agreement with HarperCollins in early 2010, the agreement was
never finalized.
Plaintiff alleges that the Defendants’ adoption of the
agency model directly harmed Old DNAML and caused it to go out
of business.

According to the plaintiff, Old DNAML’s “business

model was predicated on aggressive price competition” and the
implementation of the Defendants’ agency model in January 2010
destroyed retail price competition and “forced” DNAML to price
e-books in line with other sellers, making Old DNAML “unable to
distinguish itself through offering attractive prices, offering
innovative means to purchase e-books through bundles or loyalty

4

rewards, [and] attractive cross-platform support.”

By September

2010, Old DNAML had decided to cease its e-book retail business.
On December 23, 2011, well after the implementation of the
agency model and DNAML’s decision to shut down its e-book retail
business, Old DNAML executed an Asset Purchase Agreement (the
“Agreement”) through which it transferred all of its assets to a
newly formed entity referred to as ACN 154 689 111 Pty LTD (“New
DNAML” or “DNAML”).

In the Agreement, New DNAML purchased the

“Business and Assets free of any Security Interest” of Old DNAML
in exchange for $14,000 and the assumption of all of Old DNAML’s
liabilities.

“Assets” is defined as “all of the assets owned by

the Vendor and used in connection with the Business including
its cash, the Book Debts, the DNAML UK Shares, the Business
Agreements, Leasehold Property interest, Equipment, Intellectual
Property, and the Goodwill.”

“Business” is defined as “the

business carried on by the Vendor, being the business of owning
and operating eBook technologies, including the sale of eBooks.”
According to the plaintiff, Old DNAML continues to exist but has
no active business.
Beginning on August 9, 2011, American class action
complaints were filed against the Defendants alleging violations
of the Sherman Act, culminating in a consolidated amended
complaint filed on January 20, 2012.

In re Elec. Books

Antitrust Litig., 859 F. Supp. 2d 671, 680 (S.D.N.Y. 2012).

5

On

April 11, 2012, the Department of Justice and various States
filed antitrust lawsuits against the Defendants.
Defendants settled these actions.
was found liable in July 2013.

The Publisher

Apple proceeded to trial and

United States v. Apple Inc., 952

F. Supp. 2d 638, 709 (S.D.N.Y. 2013).
On September 16, 2013, DNAML filed this action alleging
that Apple and the Publisher Defendants conspired to
unreasonably restrain trade in violation of the Sherman Act, 15
U.S.C. § 1.

On June 5, 2014, the Defendants’ motion to dismiss

was largely denied.

DNAML Pty, Ltd. v. Apple Inc., 25 F. Supp.

3d 422, 432 (S.D.N.Y. 2014).

On September 18, 2015, following

the completion of fact discovery, the Defendants filed a joint
motion for summary judgment.

The Defendants argue that DNAML

cannot show antitrust injury, that the failure of Old DNAML’s
business was not caused by the alleged conspiracy, and that New
DNAML lacks standing to bring an antitrust claim.
was fully submitted on October 31.

The motion

Because New DNAML lacks

standing to pursue claims stemming from antitrust injuries
allegedly inflicted on Old DNAML, it is unnecessary to address
the remaining grounds the Defendants advance for summary
judgment.
DISCUSSION
The Defendants argue that DNAML’s claim fails because it
cannot establish standing to bring this action.

6

Section 4 of

the Clayton Act establishes a private right of action for
violations of the federal antitrust laws.

It entitles “[a]ny

person who [is] injured in his business or property by reason of
anything forbidden in the antitrust laws” to treble damages.
U.S.C. § 15.

15

As the Supreme Court has explained, in passing

this law, “Congress was primarily interested in creating an
effective remedy for consumers who were forced to pay excessive
prices by . . . combinations that dominated certain interstate
markets.”

Associated Gen. Contractors of Ca., Inc. v. Ca. State

Council of Carpenters, 459 U.S. 519, 530 (1983).

Congress “did

not intend the antitrust laws to provide a remedy in damages for
all injuries that might conceivably be traced to an antitrust
violation.”

Id. at 534 (citation omitted).

Accordingly, courts

have imposed “boundaries” on the invocation of this private
enforcement tool to ensure that an action for treble damages is
invoked in service of “the purpose of the antitrust laws: to
protect competition.”

Gatt Commc’ns, Inc. v. PMC Assoc., LLC,

711 F.3d 68, 75 (2d Cir. 2013).

There are “two imperatives” for

antitrust standing.

A plaintiff must plausibly

Id. at 76.

plead both that it suffered an antitrust injury and that it is
an efficient enforcer of the antitrust laws.

Id.

It is undisputed that Old DNAML, not the plaintiff, was the
only entity in existence during and allegedly harmed by the
antitrust conspiracy which resulted in the adoption of the

7

agency model by the Publisher Defendants in early 2010.

DNAML

thus does not dispute that it lacks standing to sue absent an
assignment of antitrust claims from Old DNAML.

The parties do

dispute, however, whether Old DNAML successfully assigned its
antitrust claims to New DNAML almost two years later through the
Agreement of December 23, 2011.
The first issue is whether federal antitrust claims may be
assigned by the injured party to another.

Whether a federal

antitrust claim may be assigned is itself a matter of federal
law.

In the words of the Hon. John Gibbons, “it would be

intolerable to permit the states to determine the
transferability and thus the value, of interests created by
federal law.”

Lowry v. Baltimore & Ohio R. Co., 707 F.2d 721,

739 (3d Cir. 1983) (Gibbons, J., dissenting).

Concluding that

the issue of assignability of a federal statutory claim is
itself an issue of federal law is entirely consistent with
ordinary choice of law principles.

Under virtually all choice-

of-law regimes, the jurisdiction’s law that governs whether a
cause of action exists will also be the jurisdiction that
decides whether that cause of action can be assigned.

See Caleb

Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503,
544 (2006).

Although federal antitrust laws do not expressly

permit assignment, it has been long acknowledged by federal
courts that these claims may be assigned.

8

See, e.g., In re Fine

Paper Litig. State of Wash., 632 F.2d 1081, 1090 (3d Cir. 1980)
(the Sherman and Clayton Acts); see also Bluebird Partners, L.P.
v. First Fid. Bank, N.A. N.J., 85 F.3d 970, 973 (2d Cir. 1996)
(federal securities laws).
Having determined that the plaintiff’s claims are subject
to assignment, the next issue is what law will be used to
determine whether its causes of action have been validly
assigned.

There is, of course, “no federal general common law.”

Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

In the absence

of congressional guidance on the issue of what law to apply,
courts look to the three-part test enunciated by the Supreme
Court in United States v. Kimbell Foods, Inc., 440 U.S. 715,
728-29 (1979), to determine whether to create a uniform federal
standard or to incorporate state law.

VKK Corp. v. Nat’l

Football League, 244 F.3d 114, 122 (2d Cir. 2001).

Under

Kimbell Foods, courts determining whether federal common law
should displace state law must consider whether: “(1) the issue
requires a nationally uniform body of law; (2) application of
state law would frustrate specific objectives of the federal
programs; and (3) application of a federal rule would disrupt
commercial relationships predicated on state law.”

VKK Corp.,

244 F.3d at 122 (citation omitted); see also New York v. Nat’l
Serv. Indus., Inc., 460 F.3d 201, 207 (2d Cir. 2006).

The

Supreme Court concluded long ago that the first two sections of

9

the Sherman Act, with their “sweeping language,” are among those
instances in which courts are empowered to create governing
rules of law.

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630, 644 (1981).

“The legislative history [of the

Sherman Act] makes it perfectly clear that [Congress] expected
the courts to give shape to the statute’s broad mandate by
drawing on common-law tradition.”

Id. at 643.

Accordingly, it is unsurprising that Courts of Appeals have
fashioned a uniform rule for the assignment of a federal
antitrust claim.

To effect a transfer of the right to bring an

antitrust claim, the transferee must expressly assign the right
to bring that cause of action, either by making specific
reference to the antitrust claim or by making an unambiguous
assignment of causes of action in a manner that would clearly
encompass the antitrust claim.
In Gulfstream III Associates, Inc. v. Gulfstream Aerospace
Corp., 995 F.2d 425 (3d Cir. 1993) (“Gulfstream”), the Third
Circuit applied federal common law to find that the assignment
of antitrust claims must be express.

Id. at 437-38.

The court

held that under federal common law, a general assignment of
“rights, title and interest in and to” an aircraft and a
purchase agreement for an aircraft was insufficient to validly
assign a federal antitrust claim.

Id. at 431, 438.

The court

explained that “a general assignment would be disfavored under

10

the direct purchaser rule” because of the “highly speculative
inquiries” required to determine “the relative extent of injury
incurred by the direct or remote purchasers.”1

Id. at 439.

Thus, “any assignment of antitrust claims, as a matter of
federal common law, must be an express assignment; general
assignments, without specific reference to antitrust claims,
cannot validly transfer the right to pursue those claims.”

Id.

at 440; see also Knott v. McDonald’s Corp., 147 F.3d 1065, 1068
n.4 (9th Cir. 1998) (noting the “unique concerns underlying
antitrust assignments”); Sullivan v. Nat’l Football League, 34
F.3d 1091, 1106 (1st Cir. 1994) (finding that a transfer of “all

The “direct purchaser” rule states that “only direct purchasers
have standing to bring civil antitrust claims.” Simon v.
KeySpan Corp., 694 F.3d 196, 201 (2d Cir. 2012). The rule stems
from Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S.
481, 467-94 (1968), which held that a Clayton Act defendant
could not assert a defense that the plaintiff had suffered no
injury because it had passed on any illegal overcharges to
consumers. Illinois Brick Co. v. Illinois then made this rule
bilateral by holding that only direct purchasers of concrete
blocks produced by manufacturer Illinois Brick Co. could pursue
price-fixing claims against the manufacturer. 431 U.S. 720, 730
(1977). In Illinois Brick, the Supreme Court laid out two
rationales for the direct purchaser rule. First, defendants may
otherwise face a serious risk of multiple liability. Id.
Second, there are too many “uncertainties and difficulties in
analyzing price and out-put decisions in the real economic world
rather than an economist’s hypothetical model.” Id. at 731-32
(citation omitted). “In other words, it is nearly impossible
for a court to determine which portion of an overcharge is
actually borne by the direct purchaser and which portion is
borne by a subsequent indirect purchaser.” Simon, 694 F.3d at
202.
1

11

other assets” to buyers did not include antitrust cause of
action).

Cf. Texas Life, Accident, Health & Hosp. Serv. Ins.

Guar. Ass’n v. Gaylord Entm’t Co., 105 F.3d 210, 218 (5th Cir.
1997)(requiring express assignment of ERISA claim); Bluebird
Partners, 85 F.3d at 974 (rejecting automatic assignment of
federal securities claim with sale of the security).

While the

Third Circuit later relaxed its rule, in the context of an
assignment of a Racketeering Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., claim, to
include the express assignment of “all . . . causes of action,
claims and demands of whatsoever nature,” Lerman v. Joyce Int’l
Inc., 10 F.3d 106, 112 (3d Cir. 1993) (citation omitted), it has
continued to insist that the assignment of claims be express.
The requirement that the assignment of claims be express is
fully consistent with general principles of contract law.

As a

matter of common law, the right to bring a “chose in action” was
a personal right separate from the property that gave rise to
the right.

Sprint Comm. Co., L.P v. APCC Servs., Inc., 554 U.S.

269, 275-79 (2008) (describing the history of common law choses
in action); see also W. S. Holdsworth, The History of the
Treatment of Choses in Action by the Common Law, 33 Harv. L.
Rev. 997, 1008 (1920).

Accordingly, the transfer of property

was a separate act from the transfer of a right incident to the
property.

See David C. Profilet, Express Versus Automatic

12

Assignment of Section 10(b) Causes of Action, 1985 Duke L.J.
813, 818 (1985).

There was no presumption of an automatic

assignment of the right to bring a claim associated with the
property when the property was sold.

See, e.g., Wilson v. Haley

Live Stock Co., 153 U.S. 39, 46 (1894) (trespass cause of action
did not run with cattle sale); see also Indep. Inv’r Protective
League v. Saunders, 64 F.R.D. 564, 572 (E.D. Pa. 1974) (While a
cause of action “may be transferred . . . by express
assignment,” the causes of action belonging to a prior holder of
a security “do not pass with the transfer of the security.”);
Profilet, supra, at 822-23.

Instead, the law has required an

express assignment of the right to bring a cause of action.
This principle is reflected in the Restatement of
Contracts, which requires an assignor to “manifest an intention
to transfer the right to another person without further action
or manifestation of intention by the obligee.”

Restatement

(Second) of Contracts § 324; see also 29 Williston on Contracts
§ 74:3 (4th ed.).2

For example, under New York law “where the

assignment of a fraud or other tort claim is intended in
conjunction with the conveyance of the contract or note, there

While the manifestation of intent “may be made orally or by a
writing,” since the Statute of Frauds applies to any assignment,
an oral assignment is ineffective when the value of the assigned
right is $5,000 or greater. Restatement (Second) of Contracts §
324 cmt. b (1981); see also U.C.C. § 1-206.
2

13

must be some language -– although no specific words are required
–- that evinces that intent and effectuates the transfer of such
rights.”

Commonwealth Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan

Stanley & Co., 25 N.Y.3d 543, 550 (2015); see also Banque Arabe
et Internationale D’Investissement v. Maryland Nat. Bank, 57
F.3d 146, 151 (2d Cir. 1995) (“Under New York law, the
assignment of the right to assert contract claims does not
automatically entail the right to assert tort claims arising
from that contract.”); Coca-Cola Bottling Co. v. Coca-Cola Co.,
654 F. Supp. 1419, 1442 (D. Del. 1987) (finding that specific
rights conveyed by assignors did not include right to enforce
provision of consent decree).

By ensuring that the parties’

expressed intent determines who receives redress for a wrong,
the value of the cause of action will be figured into any sale
of property, and a purchaser will be less likely to realize a
windfall.

See Profilet, supra, at 830.

In determining whether the Agreement has effectively made
an assignment of the right to bring an antitrust claim, ordinary
principles of contract law will be applied.3

“A fundamental

precept of contract law is that agreements are to be construed
in accordance with the parties’ intent,” “the best evidence” of

The Agreement does not contain a choice of law provision, nor
do the parties argue for the application of any law outside of
the Third Circuit’s federal common law framework.
3

14

which “is what they say in their writing.”

In re World Trade

Ctr. Disaster Site Litig., 754 F.3d 114, 122 (2d Cir. 2014)
(citing New York law) (citation omitted).

“Accordingly, a

written agreement that is complete, clear and unambiguous on its
face must be enforced according to the plain meaning of its
terms.”

Id. (citation omitted).

Thus, “[a]t the outset, the

court must determine whether the language the parties have
chosen is ambiguous . . . .”

Gary Friedrich Enters., LLC v.

Marvel Characters, Inc., 716 F.3d 302, 313 (2d Cir. 2013).
“A contract is unambiguous when the contractual language
has a definite and precise meaning about which there is no
reasonable basis for a difference of opinion.”

Keiler v.

Harlequin Enters. Ltd., 751 F.3d 64, 69 (2d Cir. 2014).

“By

contrast, ambiguity exists where a contract’s term could
objectively suggest more than one meaning to one familiar with
the customs and terminology of the particular trade or
business.”
of law.”

Id.
Id.

“Whether a contract is ambiguous is a question

But ambiguity does not arise merely by virtue of

the fact that the parties volunteer different definitions.

Law

Debenture Trust Co. of New York v. Maverick Tube Corp., 595 F.3d
458, 467 (2d Cir. 2010).

For instance, the proposal of an

interpretation that “strains the contract language beyond its
reasonable and ordinary meaning” does not create ambiguity where
none otherwise exists.

Seiden Assocs., Inc. v. ANC Holdings,

15

Inc., 959 F.2d 425, 428 (2d Cir. 1992) (citation omitted).

“The

existence of an ambiguity is to be ascertained from the face of
an agreement without regard to extrinsic evidence.”

In re World

Trade Ctr. Disaster Site Litig., 754 F.3d at 122 (citation
omitted).
The Agreement does not assign antitrust claims from Old
DNAML to New DNAML.

The Agreement contains no express

assignment of Old DNAML’s antitrust claims, and no general
assignment of all claims.

While the Agreement transfers all of

Old DNAML’s “Business and Assets” to New DNAML, neither the term
“Assets” nor “Business” is defined in the Agreement to include
claims of any kind.

As explained above, a transfer of assets

does not effect an assignment of antitrust claims.

See, e.g.,

Sullivan, 34 F.3d at 1106 (transfer of “all other assets” did
not include antitrust cause of action).
Where the Agreement intended to transfer legal claims, it
made that intention explicit.

The Agreement states that Old

DNAML “assign[ed] to [New DNAML] all the rights which [Old
DNAML] may have under, and against the other party or parties
to, the Business Agreements and Licenses and Trading Agreements
. . . .”

“Business Agreements” is defined as “the current

uncompleted agreements entered into in connection with the
Business at the Settlement Date.”

“Licenses and Trading

Agreements” is defined as “the Vendor’s rights, licenses and

16

trading arrangements in connection with the Business.”

Applying

the principle expressio unius est exclusion alterius, the
inclusion of these specific transfer provisions confirms that
the parties to the Agreement were aware of how to transfer legal
claims, chose to transfer specific rights that they delineated,
and did not intend a general transfer of all legal claims.

Cf.

Matter of New York City Asbestos Litig., 838 N.Y.S.2d 76, 80
(1st Dep’t 2007).

Notably, plaintiff does not argue that this

assignment provision effected a transfer of antitrust claims
from Old DNAML to New DNAML.
DNAML argues that the purchase of Old DNAML’s “Business”
was sufficiently “unambiguous and all inclusive” to effect an
assignment of federal antitrust claims under the standard
described in Lerman.

See Lerman, 10 F.3d at 112.

Plaintiff

notes that the Agreement provides that “a reference to a thing
includes each part of that thing” and argues that the
Agreement’s reference to DNAML’s e-book “Business” should
therefore be read to include litigation claims arising from that
business.

First, DNAML misreads Lerman, which holds only that

there may be a sufficient assignment of antitrust claims if
there is an express assignment of all causes of action.
Sullivan, 34 F.3d at 1106 (describing Lerman).

See

Second, the

Agreement’s definition of “Business,” which is defined as the
“business of owning and operating eBook technologies,” is not an

17

“express” assignment of any accrued legal claims, much less
accrued antitrust claims.

The “business of owning and operating

eBook technologies” does not plainly include bringing antitrust
claims in court.4
Finally, the plaintiff offers 2015 deposition testimony and
a 2011 email as evidence that the asset transfer from old DNAML
to New DNAML was intended to include antitrust claims.5
Since the Agreement is unambiguous, it would be inappropriate to
turn to extrinsic evidence to supplement its terms.

See In re

World Trade Ctr. Disaster Site Litig., 754 F.3d at 122.

The

Agreement does not expressly transfer Old DNAML’s antitrust

The plaintiff relies as well on Vasilliow Co., Inc. v.
Anheuser-Busch, Inc., 117 F.R.D. 345, 347 (E.D.N.Y. 1987), for
the proposition that a transfer of all corporate assets effects
an assignment of antitrust claims. In that brief decision, the
court dismissed individual claims brought by one class
representative on standing grounds because the plaintiff “agreed
to sell all of its business assets” and “[t]he contract does not
exempt from the sale of assets this or any other cause of
action.” The decision did not cite or grapple with any of the
precedent or legal principles discussed above. Accordingly, it
does not provide a basis to depart from the analysis undertaken
here.
4

In the 2011 email discussing the Agreement, DNAML CEO Adam
Schmidt states that “[t]he net effect on the going concern is
zero -- the new company assumes all the Assets and Liabilities
of DNAML.” Even if it were appropriate to consider this
extrinsic evidence, and it is not, this reference to the
transfer of assets does not evidence an intent to assign legal
claims.
5

18

claims to New DNAML, nor do the written terms of the Agreement
manifest an intent to do so.
CONCLUSION
The Defendants’ September 18 motion for summary judgment is
granted and the claims asserted in this action are dismissed
with prejudice.

The Clerk of Court shall close the case.

SO ORDERED:
Dated:

New York, New York
December 16, 2015
____________________________
DENISE COTE
United States District Judge

19