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United States District Court, Seventh Circuit
November 15, 2013
RICHARD TERHUNE, Plaintiff,v.THE BOARD OF EDUCATION OF ZION ELEMENTARY SCHOOL DISTRICT 6, et al., Defendants.
SAMUEL DER-YEGHIAYAN, District Judge.
This matter is before the court on Richard Terhune's (Terhune) motion for summary judgment, and on Defendant Board of Education of Zion Elementary School District 6's (Board) motion for summary judgment. For the reasons stated below, the Board's motion for summary judgment is granted and Terhune's motion for summary judgment is denied.
Terhune alleges that he was hired by the Board in 2005 as an Assistant Superintendent of Business Services for one-year renewable contracts. Terhune contends that he reported directly to Defendant John Ahlgrim (Ahlgrim), the Superintendent of Zion Elementary School District 6 (District). Terhune claims that he acquired tenure in 2009. According to Terhune, each year his employment contract was renewed until the contract for the 2011-12 school year. Terhune claims that Ahlgrim, in an attempt to justify not renewing Terhune's contract, falsely alleged performance deficiencies by Terhune. Ahlgrim allegedly recommended to the Board that Terhune's contract not be renewed. Subsequently, Terhune allegedly requested that he be reassigned to a classroom for the 2011-12 school year, but Ahlgrim suggested that Terhune take a new administrator position instead of being reassigned to the classroom. Terhune contends that, as a tenured teacher, he was entitled to a reassignment in a classroom position as a physical education teacher. On March 21, 2011, the Board allegedly issued to Terhune a notice of non-renewal, informing him that due to a reduction in force (RIF), he would not be re-employed for the 2011-12 school year. Terhune contends that he was the only employee subjected to the RIF and that such action violated the seniority rights provided in the school code. Terhune brought the instant action and includes in his complaint an age discrimination claim brought against the Board pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (Count I), a tortious interference with contract claim brought against Ahlgrim (Count II), a tortious interference with prospective economic advantage claim brought against Ahlgrim (Count III), retaliatory discharge claims brought against Ahlgrim and the Board (Count IV), and claims brought against Ahlgrim and the Board pursuant to 42 U.S.C. § 1983 (Section 1983), alleging a violation of Terhune's due process rights (Count V). On February 20, 2013, this court granted Defendants' motion to dismiss Counts I, II, III, and IV and denied Defendants' motion to dismiss Count V. The court also held that the only remaining claim in Count V was a claim against the Board. Terhune and the Board have filed cross-motions for summary judgment on Count V.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for summary judgment, the court should "construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
The Board contends that Terhune has failed to point to sufficient evidence for his due process claim. For a due process claim in the employment context a plaintiff must establish: (1) that he was denied a "protectible property interest in continued employment, " and (2) that his employment was "terminated without due process." Harbaugh v. Board of Educ. of City of Chicago, 716 F.3d 983, 986 (7th Cir. 2013)(internal quotations omitted)(quoting in part Gleason v. Bd. of Educ. of City of Chi., 792 F.2d 76, 79 (7th Cir. 1986)); see also Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)(stating that "[t]he standard elements of a due process claim include whether the plaintiff suffered a deprivation of a cognizable property or liberty interest, and whether any such deprivation occurred without due process").
A. Protected Property Interest
Terhune contends that he had a protectible property interest in continued employment because he was a tenured teacher. Under Illinois law, "[a] tenured teacher may be fired only for cause..., conferring a legitimate expectation of continued employment and thus a protected property interest that may not be terminated without due process." See Harbaugh, 716 F.3d at 986 (stating that "[t]he question of tenure is governed by state law"); see also Lalvani v. Cook County, Illinois, 269 F.3d 785, 791 (7th Cir. 2001)(stating that "[a] property interest exists only where the government employee has a legitimate claim of entitlement to his job"). The Board does not dispute that Terhune had achieved tenure with the District. (DSF Par. 11). However, the Board argues that Terhune was not deprived of a protected property interest because he chose not to accept a job with the District. It is undisputed that after Terhune was dismissed in March 2011, the Board directed Ahlgrim to reconfigure his staffing plan in order to try and find Terhune a physical education teaching position within the District and to offer Terhune the position. (R DSF Par. 26). It is also undisputed that despite such steps taken by the Board, Terhune chose to enter into an employment contract at another school on an at-will basis. (R DSF Par. 27). The Board also contends that on May 17, 2011, Ahlgrim in fact offered Terhune the physical education position and Terhune declined the offer. (DSF Par. 29). Terhune contends that he did not receive any official notice from the Board rescinding the RIF or any formal offer in writing and so he did not "count it as an offer." (R DSF Par. 29). Terhune admits knowledge of the offer and testified at his deposition that he "didn't pay much attention to it because it was verbal." (Ter. Dep. 118-19). Terhune admitted at his deposition that he did not follow up on the offer. (Ter. Dep. 119-20). The Board has also produced evidence that has not been rebutted by Terhune that his original offer with the District was made via an oral offer. (Bennet Dep. 78-79). Also, although Terhune argues that he had already accepted an offer from another school, it is undisputed that the position was an at-will position and that Terhune could have left that position without a penalty. (R DSF Par. 27). The undisputed facts thus show that Ahlgrim reconfigured his staffing plan to create a position for Terhune and offered the position to Terhune. Terhune chose not to take that offer and chose to take another position at a different school. It was Terhune himself, not the Board that was the cause of the cessation of Terhune's employment with the District. Thus, Terhune has not shown that he was deprived of a protected property interest.
B. Process Due
The Board contends that Terhune has not pointed to sufficient evidence to show that the Board failed to provide Terhune with due process. In order for a government employee to show that he was denied due process, the employee can "show that state procedures as written do not supply basic due process or that state officials acted in an random and unauthorized' fashion in depriving the plaintiff of his protected interest." Strasburger v. Board of Educ., Hardin County Community Unit School Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998). The court notes that Terhune cites to Baird v. Board of Educ. for Warren Community Unit School Dist. No. 205, 389 F.3d 685 (7th Cir. 2004). (Ans. SJ 5). However, Baird is distinguishable from the instant action since it involved a dismissal for cause as opposed to a RIF as in the instant action, and the requirements for due process are not the same. Id. at 688-89.
Terhune contends that the RIF violated Terhune's seniority rights set forth in 105 ILCS 5/24-12 and that he was unfairly made the victim of "an unlawful RIF of one...." (P Reply 1). A government employee "with a property interest" in his job whose employment is terminated pursuant to a RIF, "can be terminated without full-blown due process hearings if [he is] properly terminated during a RIF that is not implemented through individualized decisions about whom to fire." Lalvani, 269 F.3d at 791 (stating that "a government employer cannot avoid its procedural obligations if it is picking specific individuals for lay-off or termination, nor can it use a RIF to conceal a for-cause dismissal and thereby deprive a career employee of the procedural protections to which he would otherwise be entitled"). It is undisputed that in the months proceeding the non-renewal of Terhune's contract, the District was developing its ongoing staffing plan for the next school year and that there was a declining student enrollment. (R DSF Par. 18). It is also undisputed that one physical education teacher position was eliminated as a result of the RIF. (R DSF Par. 19). Terhune has not pointed to sufficient evidence for a reasonable trier of fact to conclude that the RIF was implemented based on individualized concerns relating to Terhune or that the RIF was not a bona fide RIF approved in good faith based on the reduced enrollment figures.
Terhune also argues that the District acted in a random and unauthorized fashion in executing the RIF. However, a plaintiff "who challenges state action as random and unauthorized' must also demonstrate that state post-deprivation remedies do not satisfy due process." Strasburger, 143 F.3d at 358. Terhune contends in his response to the Board's motion for summary judgment that the Illinois Code provides for post-deprivation hearings for RIFs only when five or more teachers are discharged, but Terhune acknowledges that he had the post-deprivation remedy of pursuing "some form of state-law civil proceeding, such as a breach of contract action." (Ans. D SJ 10). Terhune has not pointed to any evidence showing that Terhune initiated any state-law civil proceedings against the Board, and his "failure to avail [himself] of available state remedies is, therefore, fatal to [his] federal due process claim." Leavell, 600 F.3d at 806. In addition, Terhune had a post-deprivation remedy under the Illinois Administrative Review Act. The undisputed evidence also shows that Terhune was provided with a post-deprivation remedy by the Board. After Terhune's position was eliminated due to a RIF, he communicated with the Board and, thereafter, the Board directed Ahlgrim to create a position for Terhune. (R DSF Par. 26).
Terhune attempts to discount his actual knowledge of the upcoming RIF based on a technicality contending that the RIF was not officially listed on the agenda of the Board meeting on March 21, 2011. (Ans. DSJ 6). However, the Board has produced evidence showing that Terhune knew of the RIF. (D Ex. J). The Board has also produced a letter to Terhune, dated March 21, 2011, signed by Terhune as received, that informed him of the RIF. (D Ex. Q). The undisputed evidence shows that Terhune was allowed to make a detailed presentation to the Board in a closed session in support of keeping his position. (R DSF Par. 23). Terhune complains that he was not allowed to remain for the entire Board meeting, but he cites no precedent that would require his presence during the entire meeting to satisfy due process. Terhune also contends that Ahlgrim misled the Board at the meeting after Terhune left. However, Terhune has not pointed to sufficient evidence to show that Ahlgrim misled the Board in any way. Thus, no reasonable trier of fact could conclude other than that Terhune was accorded due process prior to his dismissal. Based on the above, the Board's motion for summary judgment is granted and Terhune's motion for summary judgment is denied.
Based on the foregoing analysis, the Board's motion for summary judgment is granted and Terhune's motion for summary judgment is denied.
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Wednesday's CBS Evening News finally mentioned the controversial ad -- produced by an Obama super PAC -- which blames Mitt Romney for former steel worker Joe Soptic's wife dying of cancer, as CBS correspondent Nancy Cordes filed a report recounting negative campaigning from both the GOP and Democratic sides.
But she only vaguely referred to the pro-Obama super PAC, Priorities USA, as an "outside group," even though it was founded by former Obama advisors to support the President's reelection. Covering the same inflammatory ad for CBS This Morning on Friday, Cordes had made the group's partisan affiliation clear, describing them as "a top outside group supporting the President."

subset: commoncrawl


text:
Dairy subsector of the agropastoral household economy
TypeConference Paper
AccessibilityOpen Access
MetadataShow full item record
Permanent link to this item: http://hdl.handle.net/10568/50004
Reports findings from a study of spheres of influence of men & women, esp. as they affect the dairy subsector, in Fulani agropastoral households in Nigeria; with particular reference to decision making & control over herd management; milking; allocation & utilisation of milk; milk processing & marketing; household income from milk sale; womens' household expenditure and investment in agropastoral production. Analyses implications of these for development of dairy production.


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How to Set up a New Mail Account on an iPhone
The iPhone, manufactured by Apple, is a cross between a personal digital assistant, mobile phone and iPod. The iPhone even allows users to use the Mail functionality to send and receive emails from the phone. Configuring your iPhone to send and receive ISP's email messages is a straightforward process that can be done in just a few minutes. Read more to learn how.
Things You'll Need
- IPhone Running v2.0+
- ISP's mail settings
Step 1
Select the "Settings" option from the main screen. Choose the "Mail, Contacts, Calendars" feature, near the bottom of the screen.
Step 2
Press the "Add Account" option. Next, you will be asked to choose either "Microsoft Exchange account", "Mobile Me", "Gmail", "Yahoo! Mail", "AOL mail" or "Other". Since you want to set up a new mail account in order to check your ISP's mail, choose "Other".
Step 3
Enter your name and email address, as well as a password and brief description of the account. Click on the "Save" button.
Step 4
Wait for your iPhone to verify that the account information has been entered correctly. You will then be brought back to the "Accounts" screen. Select your newly created account from the list.
Step 5
Scroll down to enter the "Outgoing Mail Server" information. Due to security features used by ISPs, AT&T has created a universal SMTP (a type of outgoing mail server) that iPhone owners can use to send mail from an iPhone while on a 3G or Edge network.
Step 6
Select the "SMTP" option. From the next screen, choose the AT&T SMTP Server option. You will need to choose "ON" in order to activate the service. To deactivate, simply click on the "OFF" option.
Step 7
Click the "SMTP" button near the top of your iPhone display to return to the previous screen. You have now successfully created a new mail account on your iPhone.
Tips & Warnings
- If you have multiple email accounts, you can repeat this process to enable your iPhone to check all of your email accounts.


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United States District Court, S.D. New York
August 22, 2013
GE DANDONG ET AL., Plaintiffs,v.PINNACLE PERFORMANCE LTD. ET AL., Defendants
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[Copyrighted Material Omitted]
Page 376
For Ge Dandong, Loh Tuck Woh Peter, Singapore Government Staff Credit Cooperative Society, Ltd., Ni Yan Amy, Ang Soo Cheng, Choh Gek Hong Johnson, Ng Shook Phin Susan, Zhao Yuzheng, Plaintiffs: Andrew Martin McNeela, Daniel Hume, LEAD ATTORNEYS, Christopher Scott Studebaker, Edward Michael Varga, Ira M. Press, Kirby McInerney LLP, New York, NY.
For Cho Siew Kong Douglas, Pan Yuen Daphne, Chua Hui Loo, Li Chan Chih Eric, Yeo Peng Chye, Boey Chern Yue, Lim Thian Loke, Neo Say Hoe, Ho Yu Wah Peter, Lam Yeen Leng, Plaintiffs: Andrew Martin McNeela, Daniel Hume, LEAD ATTORNEYS, Christopher Scott Studebaker, Ira M. Press, Kirby McInerney LLP, New York, NY.
For Pinnacle Performance Limited, Defendants: Bruce Domenick Angiolillo, LEAD ATTORNEY, Andrew David Waggaman Cattell, Hiral D Mehta, Jonathan K. Youngwood, Simpson Thacher & Bartlett LLP (NY), New York, NY.
For Morgan Stanley Asia (Singapore) PTE, Morgan Stanley & Co. International plc, Morgan Stanley Capital Services Inc., Morgan Stanley & CO. Inc., Defendants: Bruce Domenick Angiolillo, Jonathan K. Youngwood, LEAD ATTORNEYS, Andrew David Waggaman Cattell, Hiral D Mehta, Simpson Thacher & Bartlett LLP (NY), New York, NY.
For Morgan Stanley, Defendant: Bruce Domenick Angiolillo, LEAD ATTORNEY, Hiral D Mehta, Jonathan K. Youngwood, Simpson Thacher & Bartlett LLP (NY), New York, NY.
For Morgan Stanley Capital Services LLC, Morgan Stanley & Co. LLC, Defendants: Bruce Domenick Angiolillo, Jonathan K. Youngwood, LEAD ATTORNEYS, Hiral D Mehta, Simpson Thacher & Bartlett LLP (NY), New York, NY.
Page 377
JESSE M. FURMAN, United States District Judge.
In this putative class action, a group of Singapore investors (" Plaintiffs" ) assert various claims against Morgan Stanley & Co. and certain of its affiliates (collectively, " Defendants" ), related to a series of credit-linked notes (the " Pinnacle Notes" or the " Notes" ) issued by Defendant Pinnacle Performance Limited (" Pinnacle" ) and purchased by Plaintiffs. On October 31, 2011, the Honorable Leonard B. Sand -- to whom this case was previously assigned -- granted in part and denied in part Defendants' motion to dismiss Plaintiffs' complaint. See Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086 (LBS), 2011 WL 5170293, at *1 (S.D.N.Y. Oct. 31, 2011).[1] By separate opinion dated December 12, 2011, Judge Sand granted a preliminary
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injunction to Plaintiffs, enjoining Defendants from pursuing an anti-suit injunction from the High Court of the Republic of Singapore. See Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086 (LBS), 2011 WL 6156743, at *1 (S.D.N.Y. Dec. 12, 2011).
Defendants sought interlocutory review of both orders. Although the Second Circuit affirmed the injunction, it held that Judge Sand had erred in not addressing whether there was personal jurisdiction over Pinnacle and remanded for jurisdictional discovery on that issue. See Lam Yeen Leng v. Pinnacle Performance Ltd., 474 F. App'x 810, 814 (2d Cir. 2012) (summary order). The Court declined to reach the question of whether Judge Sand had properly ruled on Defendants' motion to dismiss. Id . at 814. After remand, on October 22, 2012, Plaintiffs filed an Amended Complaint, alleging claims for fraud, fraudulent inducement, breach of the implied covenant of good faith and fair dealing, and aiding and abetting fraud. (Docket No. 109).
Pinnacle has now moved, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for dismissal of the Amended Complaint for lack of personal jurisdiction. (Docket No. 127). Defendant Morgan Stanley has separately moved, pursuant to Rules 9(b), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure, as well as the doctrine of forum non conveniens and principles of international comity, for dismissal of the Amended Complaint in its entirety. (Docket No. 120). For the reasons stated below, Pinnacle's motion to dismiss is DENIED, and Morgan Stanley's motion to dismiss is GRANTED in part and DENIED in part.
The factual background of this action is complex and summarized in greater detail in Judge Sand's prior opinions, familiarity with which is assumed.
Plaintiffs are retail investors who purchased the Pinnacle Notes from various distributor banks based in Asia between August 2006 and December 2007. The Pinnacle Notes are a type of credit derivative known as a credit-linked note (" CLN" ), which Defendants structured and issued in seven series during 2006 and 2007. ( See McNeela Decl. (Docket No. 134) Ex. 2 at ii; id . Ex. 3 at ii; id . Ex. 4 at ii; id . Ex. 5 at ii; id . Ex. 6 at ii). Credit-linked notes shift the credit risk associated with certain Reference Entities (" REs" ) from a protection buyer (typically the bank arranging the CLNs) to a protection seller (the CLN investors). As explained in Judge Sand's October 31, 2011 Opinion, CLNs are typically created as follows:
First, the bank arranging the CLNs creates a Special Purpose Vehicle (" SPV" ) to issue the CLNs. The SPV is generally . . . an orphan company owned by a trustee that will not appear on the balance sheet of any party to the transaction. The bank then buys protection from the SPV in the amount of the CLNs that will be issued to investors insuring it against the possibility that the REs would experience a credit event, such as a default. The name given to this particular transaction is a credit default swap, and this is, in effect, a derivative contract that functions like a form of insurance. Second, the SPV sells the CLNs to investors and uses the principal it receives therefrom to purchase highly-rated securities, or underlying assets, which serve as collateral in the event the REs default. . . . Third, in return for assuming the risk, investors receive interest in the form of (i) credit protection payments from the sponsoring bank and (ii) any interest generated
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by the underlying assets. Assuming that no credit event occurs, investors will receive the redemption value of the Note.
Dandong, 2011 WL 5170293, at *1 (internal quotation marks and citations omitted).
In 2005, Defendants retained the law firm of Maples and Calder (" Maples" ) to incorporate Pinnacle in the Cayman Islands as the SPV that would issue the Pinnacle Notes. ( See McNeela Decl. (Docket No. 126) Exs. 18 & 19). On November 30, 2005, Maples incorporated Pinnacle through its affiliate, Mapcal Ltd. ( See McNeela Decl. (Docket No. 126) Ex. 1 (" Gordon Dep." ) at 36:5-7). Pinnacle entered into a Proposals and Advice Agreement with Morgan Stanley Asia (Singapore) Pte. (" MS Singapore" ), under which MS Singapore proposed the terms and conditions of each series of Notes and oversaw the solicitation of investors. (Youngwood Decl. (Docket No. 128) Ex. 3 at 1-3; Gordon Dep. 64:5-10, 94:14-95:18, 98:21-99:25). After Pinnacle's directors approved MS Singapore's proposals, it issued the Notes, which were then sold to Plaintiffs by independent distributors. (Youngwood Decl. Ex. 3 at 2). Pinnacle's " sole business [was] the raising of money by issuing Series of Notes . . . for the purposes of purchasing assets and entering into related derivatives and other contracts." (McNeela Decl. (Docket No. 126) Ex. 3 at SING 618). Pinnacle used the principal raised from the sale of the Notes to purchase the Underlying Assets, namely, single tranche Synthetic Collateralized Debt Obligations (" CDOs" ) that were selected by Defendant Morgan Stanley & Co. International plc (" MS International" ) and issued by Morgan Stanley ACES SPC (" MS ACES" ). ( See Gordon Dep. 118:21-120:2, 122:6-14; Am. Answer ¶ ¶ 4, 104; McNeela Decl. Docket No. 126) Ex. 3 at SING 621; id . Ex. 30 § 2.3).
These CDOs (the " MS ACES CDOs" ) were linked to the performance of a portfolio of approximately 100 CDO reference entities (" CDO REs" ), see Dandong, 2011 WL 5170293, at *2, which Defendant Morgan Stanley Capital Services Inc. (" MS Capital" ) had selected. ( See McNeela Decl. (Docket No. 126) Ex. 13 at 1; id . Ex. 14 at 1; id . Ex. 15 at 1; id . Ex. 16 at 1; id . Ex. 17 at 1). According to Plaintiffs, Defendants marketed the Notes as safe, conservative investments (McNeela Decl. (Docket No. 134) Ex. 1 at SING 162963; id . Ex. 2 at ii; id . Ex. 3 at ii; id . Ex. 4 at ii; id . Ex. 5 at ii; id . Ex. 6 at ii), when in reality MS Capital had selected a highly disproportionate number of CDO REs that were at an elevated risk of default, and it had manipulated the characteristics of the MS ACES CDOs to suffer sudden, swift, and total impairment upon even modest CDO RE defaults (Am. Compl. ¶ ¶ 154, 167-244).
Plaintiffs further allege that, when promoting the Notes, Defendants did not inform investors that they had an inherent conflict of interest because they had " shorted" the MS ACES CDOs. Specifically, the MS ACES CDOs were based on a credit default swap under which Pinnacle -- using the investors' principal -- assumed the CDO's credit risk, taking the " long" position on the risk by selling protection to MS Capital. (Am. Compl. ¶ ¶ 72, 146-48; Gordon Dep. 115:20-116:20, 119:17-120:2; Am. Answer ¶ ¶ 4, 18). Plaintiffs allege that under this arrangement there was an express conflict of interest because MS Capital was the " short" counter-party to -- that is, bet against -- every MS ACES CDO that MS International had selected to serve as an Underlying Asset for the Notes. (Am. Compl. ¶ 72). Under this arrangement, " MS Capital stood to profit in the event that the pool of assets performed poorly, while the investors
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in the Notes suffered losses." Dandong, 2011 WL 5170293, at *2.
Plaintiffs commenced this action on October 25, 2010. (Docket No. 1). By Order dated October 31, 2011, the Court granted in part and denied in part Defendants' motion to dismiss, dismissing Plaintiffs' claims of negligent misrepresentation, breach of fiduciary duty, unjust enrichment, aiding and abetting negligent misrepresentation, and aiding and abetting breach of fiduciary duty. See Dandong, 2011 WL 5170293, at *16. The Court declined to dismiss Plaintiffs' remaining claims for, inter alia, fraud, fraudulent inducement, and breach of the implied covenant of good faith and fair dealing. Id . The Court also denied Defendants' motion to dismiss on the basis of forum selection clauses contained in the Notes' various pricing statements, forum non conveniens, and principles of international comity. See id . Less than a month later, Defendants " took the extraordinary measure of seeking an 'expedited' anti-suit injunction from the High Court" of Singapore to bar Plaintiffs from litigating before this Court, based on arguments " substantially similar" to those Judge Sand had rejected in the October 25, 2010 Order. See Dandong, 2011 WL 6156743, at *1, *4. By Order dated December 12, 2011, the Court granted Plaintiffs' motion for a counter-injunction, and enjoined Defendants from further prosecuting their injunction application in Singapore. See
[WL] at *1, *8.
The Second Circuit affirmed the injunction in a summary order dated April 10, 2012. See Lam Yeen Leng, 474 F. App'x at 813. With respect to Pinnacle, however, the Second Circuit found that the " district court [had] erred in enjoining Pinnacle without first making any findings as to its jurisdiction over that party," and remanded the case with instructions to " make factual findings adequate enough to permit intelligent appellate review" of any judicial determination regarding Pinnacle's personal jurisdiction challenge. Id .
On April 23, 2012, Judge Sand ordered that the parties conduct discovery regarding the Court's jurisdiction over Pinnacle and submit simultaneous briefing on the issue. (Docket No. 72). On October 22, 2012, Plaintiffs filed an Amended Class Action Complaint " on their behalf and on behalf of all other purchasers of Pinnacle Performance Limited Series 1, 2, 3, 6, 7, 9 and 10 notes . . . between August 1, 2006 and December 31, 2007, inclusive (the 'Class Period'), and who have been damaged thereby," asserting claims for fraud, fraudulent inducement, breach of the implied covenant of good faith and fair dealing, and aiding and abetting fraud. (Am. Compl. ¶ 1). As noted, Pinnacle now moves to dismiss the Amended Complaint as to it for lack of personal jurisdiction; Morgan Stanley moves to dismiss the Amended Complaint in its entirety pursuant to Rules 9(b), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Nos. 120, 125-27, 167-69).[2]
A. Pinnacle's Motion to Dismiss
The Court turns first to Pinnacle's motion. A plaintiff bears the burden of establishing a court's personal jurisdiction over a particular defendant. See Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010); accord In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013). " [T]he showing a plaintiff must make to defeat a defendant's claim that the court lacks personal jurisdiction over it 'varies depending on the
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procedural posture of the litigation.'" Dorchester Fin. Secs, Inc. v. Banco BRJ, S.A., No. 12-770-cv, 722 F.3d 81, 2013 WL 3335784, at *3 (2d Cir. July 3, 2013) (per curiam) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). " 'Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff's prima facie showing may be established solely by allegations.'" Id . (quoting Ball, 902 F.2d at 197). After discovery, however, the plaintiff's prima facie showing " 'must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant. At that point, the prima facie showing must be factually supported.'" Id . (quoting Ball, 902 F.2d at 197).
Here, the parties have engaged in jurisdictional discovery. Moreover, Pinnacle's motion comes on remand from the Second Circuit's decision affirming the anti-anti-suit injunction as to all defendants other than Pinnacle and remanding for further proceedings as to Pinnacle. Before entering a preliminary injunction, such as the anti-anti-suit injunction, jurisdiction over a defendant must be " clearly established," Weitzman v. Stein, 897 F.2d 653, 658-59 (2d Cir. 1990), and a " prima facie showing of jurisdiction will not suffice," Visual Scis., Inc. v. Integrated Commc'ns, Inc., 660 F.2d 56, 59 (2d Cir. 1981). Instead, a plaintiff responding to a jurisdictional challenge in that context must " adequately establish that there is at least a reasonable probability of ultimate success upon the question of jurisdiction when the action is tried on the merits." Id . (citation and internal quotation marks omitted); accord Lam Yeen Leng, 474 F. App'x at 813-14 (remanding for application of that standard).
Personal jurisdiction over a non-resident defendant in a federal diversity action is determined by the law of the forum state. See, e.g., D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006). Even if the exercise of jurisdiction is appropriate under state law, however, a court must determine whether the exercise of such jurisdiction satisfies the federal due process requirements of " 'fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); see also Aquiline Capital Partners LLC v. FinArch LLC, 861 F.Supp.2d 378, 391 (S.D.N.Y. 2012).
1. N.Y. C.P.L.R. § 302(a)(1)
Plaintiffs argue that the Court can exercise personal jurisdiction over Pinnacle pursuant to Section 302(a)(1) of New York's long-arm statute, which permits a court to exercise jurisdiction over a person or entity that " in person or through an agent . . . transacts business within the state or contracts anywhere to supply goods and services in the state." N.Y. C.P.L.R. § 302(a). To determine the existence of jurisdiction under Section 302(a)(1), a court must decide " (1) whether the defendant transacts any business in New York and, if so, (2) whether this cause of action arises from such a business transaction." Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (internal quotation marks omitted). " [T]he overriding criterion necessary to establish a transaction of business is some act by which the defendant purposefully avails itself of the privilege of conducting activities within New York." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 61 (2d Cir. 2012) (internal quotation marks omitted). As to Section 302(a)(1)'s second requirement, " a suit will be deemed
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to have arisen out of a party's activities in New York if there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York." Id . at 66 (brackets and internal quotation marks omitted). Section 302(a)(1)'s requirements may be satisfied by a single act within New York, see id . at 62, but " jurisdiction will not extend to cover defendants with nothing more than petty contacts to the state," Tamam v. Fransabank Sal, 677 F.Supp.2d 720, 726 (S.D.N.Y. 2010) (internal quotation marks omitted).
Pinnacle is a Cayman Island corporation and does not solicit business in New York. It does not have an office, a phone listing, or mailing address in New York; it is not registered to do business in New York; and it does not have any securities listed on any United States exchange. (Youngwood Decl. (Docket No. 128) Ex. 1 ¶ ¶ 3-10; id . Ex. 2 at 143:8-146:16). Nevertheless, Plaintiffs argue that Pinnacle is subject to this Court's jurisdiction because it opened bank accounts in New York to deposit the money it raised from investors and to facilitate its purchase of subsidiary investments that were used to " defraud the Pinnacle investors." (Pls.' Supplemental Mem. Law Regarding Personal Jurisdiction 1). Specifically, Plaintiffs allege that for each series of Notes that Pinnacle issued, it (1) established bank accounts in New York with MS Capital to deposit investors' funds; (2) submitted IRS tax documentation related to those accounts to other Defendants in New York to file on its behalf; and (3) used the funds in those accounts to purchase the Underlying Assets that Defendants created (namely, the MS ACES CDOs). ( Id . at 2).
The New York Court of Appeals recently held that a defendant transacts business with New York through its " 'use of a correspondent bank account in New York, even if no other contacts between the defendant and New York can be established, if the defendant's use of that account was purposeful.'" Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327, 984 N.E.2d 893, 899, 960 N.Y.S.2d 695 (N.Y. 2012) (quoting Licci, 673 F.3d at 66).[3] In Licci, the Court found that a foreign bank that " did not operate branches or offices, or maintain employees, in the United States" and whose " sole point of contact with the United States was a correspondent banking account" transacted business with New York where it made " repeated use" of a correspondent account. Id. at 896, 899. That repeated use, the Court explained, " show[s] purposeful availment of New York's dependable and transparent banking system, the dollar as a stable and fungible currency, and the predictable jurisdictional and commercial laws of New York and the United States." Id . at 900.
Applying that standard here, Pinnacle's use of New York bank accounts to shelter significant and repeated transfers of funds related to the Notes plainly constitutes the " transaction of business" necessary to satisfy the first requirement of Section 302(a)(1). See, e.g., Jain v. T & C Holding Inc., No. 10 Civ. 1006 (RMB), 2011 WL 814659, at *5 (S.D.N.Y. Mar. 3, 2011) (internal
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quotation marks omitted). In arguing otherwise, Pinnacle asserts that the accounts were " not even bank accounts to begin with," but rather " in house 'accounts' on MS Capital's books" that were opened for " administrative ease." (Pinnacle Mem. in Supp. Mot. to Dismiss 2, 14). That assertion, however, is easily rejected. The evidence in the record indicates that Pinnacle established several accounts with MS Capital in New York to deposit the funds it raised through the issuance of the Notes. ( See, e.g., McNeela Decl. (Docket No. 126) Ex. 38 (Series 2), Ex. 39 (Series 3), Ex. 40 (Series 9) Ex. 41 (Series 10)). For example, Richard Gordon, one of Pinnacle's directors, testified that Pinnacle had certain bank accounts in New York " in relation to the swap" (Youngwood Decl. (Docket No. 128) Ex. 2 at 125:2-13), and although he testified that these accounts would have been opened by one of Pinnacle's " counterparties," rather than Pinnacle itself ( see id . at 125:2-13, 127:2-128:11), the account opening letters are addressed to Pinnacle and direct Pinnacle to file certain forms with the IRS as the beneficial owner of those accounts (McNeela Decl. (Docket No. 126) Ex. 42).
Plaintiffs also satisfy the second prong of the Section 302(a)(1) inquiry, requiring " an articulable nexus or substantial relationship between the business transaction and the claim asserted." Licci, 984 N.E.2d at 900 (internal quotation marks and citations omitted). As Plaintiffs allege, Pinnacle opened accounts specific to Series 9 and 10 on the very same day that the Notes were issued. (McNeela Decl. (Docket No. 126) Ex. 42 (account opening letters dated December 14, 2007); Am. Answer ¶ 132 (Series 9 and 10 " issued on or about December 14, 2007" )). Additionally, the funds Pinnacle deposited matched the $17.9 million investment raised by the issuance of those Series ( see Am. Compl. ¶ 132(a); McNeela Decl. (Docket No. 126) Ex. 40 at PINNACLE 1215; id . Ex. 41 (Docket No. 126), at PINNACLE 1221), which were then used to purchase $17.9 million of MS ACES CDOs ( see McNeela Decl. (Docket No. 126) Ex. 31 at SING 49318). Further, because " Pinnacle did not engage in any business other than the raising of money through the issuance of Notes" ( id . Ex. 3 at SING 618), Plaintiffs argue that the $17.9 million in Pinnacle's Series 9 and 10 New York accounts must " represent[ ] either: (i) the funds Pinnacle used to purchase the MS ACES CDOs; or (ii) the dollar value of the MS ACES CDOs that Pinnacle purchased." (Pls.' Supplemental Mem. Law Regarding Personal Jurisdiction 19). Pinnacle offers no other explanation to rebut this conclusion.
In short, Pinnacle's " repeated use" of the New York account " shows not only transaction of business, but an articulable nexus or substantial relationship between the transaction" and Plaintiffs' claims in this case. Licci, 984 N.E.2d at 901. Pinnacle " did not route a transfer" relating to the Notes " once or twice by mistake." Id . Instead, Plaintiffs allege and the record demonstrates that Pinnacle " deliberately used" the New York account " again and again" in connection with the design and issuance of the Notes at issue in this case. Id . Indeed, it was the very transfers into New York that allowed Pinnacle to purchase the Underlying Assets central to the allegedly fraudulent transactions at issue here. See HSH Nordbank AG N.Y. Branch v. Street, No. 11 Civ. 9405 (DLC), 2012 WL 2921875, at *5 (S.D.N.Y. July 18, 2012) (" Regardless of whether the mere maintenance of a New York bank account is not standing alone, a sufficient basis to subject a foreign defendant to personal jurisdiction under § 302(a)(1), § 302(a)(1) is satisfied where, as here, the plaintiff's cause of action
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arises directly from the use of New York accounts." (internal quotation marks and citation omitted)). Thus, Section 302(a)(1) provides for personal jurisdiction over Pinnacle.[4]
2. Due Process
The exercise of personal jurisdiction over Pinnacle also satisfies due process. The due process analysis " consists of two separate components: the 'minimum contacts' inquiry and the 'reasonableness' inquiry." Licci, 673 F.3d at 60. The minimum contacts test asks whether a defendant has engaged in " purposeful availment" -- i.e., whether the contacts indicate the defendant's intent to invoke the benefits and privileges of New York law. See Burger King, 471 U.S. at 472; Deutsche Bank Sec. Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 72, 850 N.E.2d 1140, 818 N.Y.S.2d 164 (2006). The second part of the due process analysis asks " whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice -- that is, whether it is reasonable under the circumstances of the particular case." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 129 (2d Cir 2002) (internal quotation marks omitted).
Here, Pinnacle has sufficient contacts with New York for this Court to exercise jurisdiction. By using New York bank accounts to deposit funds it raised through the issuance of the Notes, which were then used to purchase the MS ACES CDOs, Pinnacle has " purposefully avail[ed] [it]self of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws." Burger King, 471 U.S. at 475 (internal quotation marks omitted); see also Peterson v. Islamic Rep. of Iran, No. 10 Civ. 4518 (KBF), 2013 WL 1155576, at *15 (S.D.N.Y. Mar. 13, 2013) (" The minimum contacts necessary to comport with the New York jurisdictional statutes, C.P.L.R. § § 301 and 302, necessarily comport with the Due Process Clause since New York law requires a greater showing of minimum contacts than would be required by the Due Process Clause alone." (citing Licci, 673 F.3d at 60-61)).
Further, the Court's exercise of jurisdiction over Pinnacle is " reasonable." See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 165 (2d Cir. 2010) (explaining that " the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts," and the defendant must " present[] 'a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (quoting Burger King, 471 U.S. at 477)). The reasonableness inquiry focuses on five factors: " (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." Id . at 164. None of these factors weighs against the exercise of personal jurisdiction over Pinnacle.
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First, the burden on Pinnacle of defending this suit is minimal in comparison to New York's interests in providing a forum to adjudicate disputes over financial instruments created with money funneled through New York bank accounts. See Bank Brussels, 305 F.3d at 129-30. Second, Plaintiffs have brought their claims in New York and exercising jurisdiction over Pinnacle will enable the " efficient resolution of plaintiffs' claims . . . in a single proceeding." Peterson, 2013 WL 1155576, at *18; see also Lawson v. Full Tilt Poker Ltd., 930 F.Supp.2d 476, 2013 WL 950871, at *8 (S.D.N.Y. Mar. 7, 2013) (holding that the exercise of jurisdiction was reasonable in part because of the interstate judicial system's interest in favor of resolving related disputes in a single forum). Accordingly, the Court finds that the exercise of personal jurisdiction over Pinnacle comports with due process.
B. Morgan Stanley's Motion to Dismiss
Having established the Court's jurisdiction over Pinnacle, the Court now turns to Defendant Morgan Stanley's motion to dismiss pursuant to Rules 9(b), 12(b)(3), and 12(b)(6).
Morgan Stanley moves to dismiss the Amended Complaint on three grounds, which it contends were not reached by Judge Sand in his October 31, 2011 Opinion dismissing the original complaint. First, arguing that the law of the case does not apply, Morgan Stanley asserts that the Amended Complaint should be dismissed based on the forum selection clause in the Pinnacle Notes offering documents (i.e., the Base Prospectus and Pricing Statements), as well as forum non conveniens and principles of international comity. (Morgan Stanley Mem. in Supp. Mot. to Dismiss 1). Second, Morgan Stanley argues that " subsequent developments render the Amended Complaint's core fraud allegation implausible as a matter of law," as Plaintiffs' allegation that the Pinnacle Notes were " built to fail . . . is contradicted by the subsequent fact that one Series of Pinnacle Notes did not fail." ( Id .). Third, Morgan Stanley argues that because certain named Plaintiffs testified that they did not read or could not remember reading the Pinnacle Notes Base Prospectus and Pricing Statements, Plaintiffs cannot plead reasonable reliance, which is an essential element of their common law fraud claims. ( Id .). These arguments are easily rejected.
1. Forum Selection, Forum Non Conveniens, and International Comity
Morgan Stanley's first argument is barred by the law of the case. " The law of the case doctrine, while not binding, counsels a court against revisiting its prior rulings in subsequent stages of the same case absent 'cogent' and 'compelling' reasons such as 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)). Even when cases are reassigned to a different judge, the law of the case " dictates a general practice of refusing to reopen what has been decided." Wright v. Cayan, 817 F.2d 999, 1002 n.3 (2d Cir. 1987).
Here, Judge Sand previously considered and rejected Morgan Stanley's arguments that the Singapore forum selection clauses preclude suit in New York and that the case should be dismissed on the grounds of forum non conveniens or international comity. See Dandong, 2011 WL 5170293, at *4-9. Specifically, Judge Sand found that " [t]he inevitable conclusion is that the Base Prospectus and Pricing Statements -- which contain the omissions
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and misstatements that underlie Plaintiffs' claims -- are governed by no forum selection clause." [WL] at *4. Next, applying the three-part test outlined in Norex Petroleum Ltd. v. Access Industry Inc., 416 F.3d 146, 154 (2d Cir. 2005), Judge Sand found that Plaintiffs' original complaint " asserts causes of action that appear to be connected more strongly to New York than to Singapore," and that Defendants had not put forth any other compelling reasons to dismiss the complaint on ground of forum non conveniens. See Dandong, 2011 WL 5170293, at *5-6 (explaining that forum non conveniens is a " 'discretionary device permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim." (quoting Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000)). Finally, Judge Sand rejected Defendants' arguments that " (i) that international comity is warranted because of the existence of parallel actions in Singapore and (ii) that this court should defer to the specially-created Singapore Monetary Authority's dispute resolution system," finding that " Defendants' appeal to international comity is without merit." [WL] at *8-9.
Morgan Stanley has not offered a reason -- let alone a " cogent or compelling" reason -- to reconsider these holdings. Instead, Morgan Stanley's argument boils down to a contention that Judge Sand got it wrong. ( See Morgan Stanley Mem. in Supp. Mot. to Dismiss 16 (" The Court's previous decision failed to recognize that the exclusive Singapore forum selection clause is the only forum selection clause that applies to investors like Plaintiffs . . . ." ); id . at 16-17 (" The Court's decision on the original Defendants' motion held incorrectly that this language restricted the Singapore forum selection clause to the Notes Application Form only." ); id . at 17 (" [T]he Court erred when it concluded earlier that Plaintiffs' claims were 'governed by no forum selection clause' . . . ." )). These are not grounds to revisit the Court's prior determination. See Boyd v. J.E. Robert Co., No. 05 Civ. 2455 (KAM) (RER), 2010 WL 5772892, at *16 (E.D.N.Y. Mar. 31, 2010) (holding that because defendants " appear merely to reprise arguments offered in support of prior motions to dismiss that were ultimately rejected by this Court, the doctrine of the law of the case mandates that these arguments be rejected" ).
At most, Morgan Stanley asserts that " [n]umerous new facts justify reevaluating both the forum selection clause and forum non conveniens " rulings. (Morgan Stanley Mem. in Supp. Mot. to Dismiss 15). These facts include that (1) Plaintiffs disclaimed reliance on the Pinnacle Notes. offering documents; (2) Plaintiffs testified that they had relied on non-party Distributors' oral representations in Singapore; and (3) Plaintiffs " fail[ed] to supplement the Complaint with any concrete evidence of fraud despite having access to over 100,000 pages of Defendants' documents to date." ( Id .). Yet these new allegations have little bearing on Judge Sand's previous holding, and certainly do not present a compelling reason to depart from it. Morgan Stanley further argues that " Judge Scheindlin's recent decision in In re Optimal shows that a court may -- and indeed, should -- dismiss actions like this one on forum non conveniens grounds." ( Id . at 2 (citing In re Optimal U.S. Litig., 886 F.Supp.2d 298, 2012 WL 3264372 (S.D.N.Y. 2012)). But In re Optimal does not constitute an " intervening change of controlling case law," as it does not bind this Court. See Ali, 529 F.3d at 490 (internal quotation marks omitted). Further, considering the " highly fact-specific" nature of forum non conveniens analyses, see Online Payment Solutions Inc. v. Svenska, 638 F.Supp.2d 375, 380
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(S.D.N.Y. 2009), the Court sees no reason to rely on the holding of In re Optimal .
Finally, Morgan Stanley argues that the United States Supreme Court's decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) " dictates" the dismissal of this action on grounds of international comity. (Morgan Stanley Mem. in Supp. Mot. to Dismiss 24). As Morgan Stanley admits ( id .), however, Morrison predated Defendants' earlier motion to dismiss and was even cited by Defendants in support of their motion; plainly, therefore, it is not an " intervening change" in the law. Moreover, nothing in Morrison -- which held, as a matter of statutory construction, that Section 10(b) of the Securities Exchange Act of 1934 does not extend to extraterritorial conduct, see Morrison, 130 S.Ct. at 2884 -- supports Morgan Stanley's argument that " New York state law [cannot] . . . regulat[e] entirely foreign securities transactions like the Pinnacle Notes." (Morgan Stanley Reply Mem. 10). Indeed, courts have been careful to limit Morrison 's application to the narrow issue before the Court. Loginovskaya v. Batratchenko, 936 F.Supp.2d 357, 2013 WL 1285421, at *10 (S.D.N.Y. Mar. 29, 2013); S.E.C. v. Gruss, 859 F.Supp.2d 653, 661 (S.D.N.Y. 2012); United States v. Singhal, 876 F.Supp.2d 82, 97 (D.D.C. 2012).
In sum, Defendants have provided no reason for the Court to revisit Judge Sand's previous determination -- made in a careful and detailed opinion -- that Plaintiffs' claims survive challenges based on the forum selection clause in the Pinnacle offering documents, the doctrine of forum non conveniens, and principles of international comity. Accordingly, the Court adheres to the law of the case and denies Morgan Stanley's motion to dismiss on these grounds.
2. Allegations of Fraud
The law of the case also applies to much of Morgan Stanley's argument that Plaintiffs' allegations of fraud are insufficient as a matter of law. Morgan Stanley argues that Plaintiffs cannot show that there were misstatements or omissions in the Pinnacle offering documents. In doing so, however, it merely restates the exact arguments that were rejected by Judge Sand in his October 31, 2011 Order, including that investors were properly warned that the Underlying Assets would be synthetic CDOs ( compare Defs.' Feb. 2, 2011 Mem. 34 (Docket No. 19)), with Morgan Stanley Mem. in Supp. Mot. to Dismiss 8); that the risks of the underlying transactions were " repeatedly disclosed in the Pinnacle Notes offering documents," ( compare Defs.' Feb. 2, 2011 Mem. 33, with Morgan Stanley Mem. in Supp. Mot. to Dismiss 9); and that MS Capital was clearly identified as the swap counterparty in the Underlying Assets' offering documents ( compare Defs.' Feb. 2, 2011 Mem. 33-34, with Morgan Stanley Mem. in Supp. Mot. to Dismiss 9). Judge Sand held that " while there is little doubt that the cautionary language warned Plaintiffs that the Notes carried some risk, it [was] inadequate to have put the reasonable investor on notice of the alleged fraud." Dandong, 2011 WL 5170293, at *13. Morgan Stanley has presented no basis to revisit that ruling.
Morgan Stanley also argues that Plaintiffs' fraud allegations are implausible as a matter of law because one series of Notes identified in the original complaint (Series 5) did not default, but instead matured and paid out one hundred percent of principal with interest. Morgan Stanley contends that this " undisputed fact highlights the legal inadequacy of Plaintiffs' total reliance on the structure of the
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Notes from which to infer a fraudulent state of mind." (Morgan Stanley Reply Mem. 1). It is well-established that when deciding a motion to dismiss, however, a court's " review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). " [W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material." Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (alteration in original) (internal quotations marks omitted); accord Quick Cash of Westchester Ave. LLC v. Vill. of Port Chester, 11 Civ. 5608 (CS), 2013 WL 135216, at *3 (S.D.N.Y. Jan. 10, 2013).
Here, as Morgan Stanley correctly notes, the Amended Complaint makes no reference to Series 5 (Morgan Stanley Mem. in Supp. Mot. to Dismiss 1); as such, Morgan Stanley's argument that Series 5 " matured and paid out one hundred percent of principal with interest" ( id . at 7), is plainly a matter outside the four corners of the Amended Complaint. Accordingly, and because the Court declines to convert Morgan Stanley's motion into one for summary judgment, the Court will not consider the evidence Morgan Stanley submitted to support its assertion that Series 5 " was a good investment" -- namely, excerpts of the June 21, 2012 deposition of the Singapore Government Staff Credit Cooperative Society (McNeela Decl. (Docket No. 134) Ex. 13). It follows that the alleged success of Series 5 does not provide a basis to dismiss.[5]
3. Reasonable Reliance
Morgan Stanley next argues that Plaintiffs cannot establish reasonable reliance because every named Plaintiff has been deposed and has testified that he or she did not read or could not remember reading the Pinnacle Notes Base Prospectus and Pricing Statements. (Morgan Stanley Mem. in Supp. Mot. to Dismiss 11-13). Morgan Stanley contends that this testimony contradicts the original Complaint's allegations of reliance on the Base Prospectus and Pricing Statements and that Plaintiffs' new allegation in the Amended Complaint that Plaintiffs relied on sales brochures fails as a matter of law. As discussed above, however, Defendant cannot introduce testimonial evidence from depositions on a motion to dismiss pursuant to Rule 12(b)(6), as the Court is limited to reviewing the allegations in the complaint and documents attached to it or incorporated by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-54 (2d Cir. 2002);
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Kregler v. City of New York, 770 F.Supp.2d 602, 607 (S.D.N.Y. 2011). Thus, the Court excludes the deposition testimony introduced by Morgan Stanley.[6]
Morgan Stanley also argues that " [a]s a matter of law, Plaintiffs cannot plead reasonable reliance on the sales brochures, especially because each directs potential investors to read the Prospectus before investing." (Morgan Stanley Mem. in Supp. Mot. to Dismiss 13). But Judge Sand previously held that neither the Base Prospectus nor the Pricing Statements sufficiently warned Plaintiffs of the risks of the transactions and do not insulate defendants from allegations of fraud. See Dandong, 2011 WL 5170293, at *13-14 (holding that the " cautionary language" in the offering documents " [did] not embrace the alleged fraud" ). Thus, the brochures' instruction that investors should review the Base Prospectus and the Pricing Statements (Youngwood Decl. (Docket No. 128) Ex. 3 at ii), is irrelevant to the issue of Plaintiffs' reliance. See Fed. Hous. Fin. Agency v. Deutsche Bank AG, 903 F.Supp.2d 285, 2012 WL 5471864, at *2-3 (S.D.N.Y. 2012) (holding that reliance on offering materials was sufficient to state a claim for fraud despite the materials' instruction to read the final prospectus because the plaintiff's " complaint is not that the information in the Preliminary Materials was inconsistent with that in the final Prospectus . . . but that both sets of materials contained the same, inaccurate, information" ).
4. Morgan Stanley's Remaining Arguments
Morgan Stanley also argues that Plaintiffs' fraudulent inducement claim and claim for breach of the implied covenant of good faith and fair dealing should be dismissed because they are duplicative of their fraud claim. (Morgan Stanley Mem. in Supp. Mot. to Dismiss 13-14). " At the pleadings stage, however, the Plaintiffs are entitled to pursue alternative theories." Apple v. Atlantic Yards Dev. Co., LLC, No. 11 Civ. 5550 (JG) (JMA), 2012 WL 2309028, at *6 (E.D.N.Y. June 18, 2012) (collecting cases); see also Willman v. Zelman & Assocs., LLC, No. 11 Civ. 1216 (KBF), 2012 WL 811512, at *5 (S.D.N.Y. Mar. 12, 2012) (" Dismissal of plaintiff's alternative theories at this stage would violate the liberal policy of rule 8(e)(2) which allows plaintiffs wide latitude in framing their right to recover." (internal quotation marks omitted)); China Dev. Indus. Bank v. Morgan Stanley & Co., Inc., 86 A.D.3d 435, 927 N.Y.S.2d 52 (App.Div. 1st Dep't 2011) (sustaining claims of fraud and fraudulent inducement arising out of the same series of events); Citi Mgmt. Grp., Ltd. v. Highbridge House Ogden, LLC, 45 A.D.3d 487, 847 N.Y.S.2d 33, 34 (App.Div. 1st Dep't 2007) (" [T]he claims for breach of the implied covenant of good faith and fair dealing, and for fraud, should not be dismissed as duplicative of the breach-of-contract cause of action at this juncture." ); cf. Dandong, 2011 WL 5170293, at *16 (declining to dismiss Plaintiffs' fraudulent inducement
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and fraud claims and noting that the elements of the two are the same). To be sure, Plaintiffs cannot obtain double recovery for the same injury; but that prospect can be addressed at a later stage of the case, if necessary.
Next, Morgan Stanley contends that Plaintiffs' claims for aiding and abetting fraud and fraudulent inducement fail because Plaintiffs have not alleged any underlying torts. (Morgan Stanley Mem. in Supp. Mot. to Dismiss 14). A plaintiff asserting a claim of aiding and abetting fraud must allege (1) existence of the underlying fraud; (2) the defendant's actual knowledge of the fraud; and (3) the defendant's substantial assistance in perpetrating the fraud. See Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006). " Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the [fraud or breach of fiduciary duty] to occur." Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt., LLC, 479 F.Supp.2d 349, 370 (S.D.N.Y. 2007) (alteration in original) (internal quotation marks omitted). Here, Plaintiffs have sufficiently alleged the existence of the underlying fraud, and the Amended Complaint alleges that Morgan Stanley substantially assisted the fraud by, inter alia, inducing Plaintiffs to invest in the Pinnacle Notes by concealing material information about the Notes, including that they were " designed to fail." (Am. Compl. ¶ ¶ 303-05, 317-21). Consequently, Plaintiffs have sufficiently alleged claims for aiding and abetting fraud and fraudulent inducement.
Finally, as Plaintiffs concede (Pls.' Mem. in Opp'n Morgan Stanley's Mot. to Dismiss 25 n.23), Morgan Stanley is correct in arguing that New York law does not recognize a cause of action for aiding and abetting breach of the implied covenant of good faith and fair dealing. See Fisch v. New Heights Acad. Charter Sch., No. 12 Civ. 2033 (DLC), 2012 WL 4049959, at *7 (S.D.N.Y. Sept. 13, 2012). Accordingly, that claim -- and that claim alone -- is dismissed.
For the foregoing reasons, Pinnacle's motion to dismiss for lack of personal jurisdiction is DENIED. Morgan Stanley's motion to dismiss is GRANTED with respect to Plaintiffs' claim of aiding and abetting breach of the implied covenant of good faith and fair dealing, but is DENIED as to Plaintiffs' remaining claims. The Clerk of Court is directed to terminate Docket Number 120.
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In a celebrity-obsessed world we're all feeling the pressure to look fantastic. Women in particular hanker after the peaches and cream complexion of Anne Hathaway (pictured above) or the luminous glow of Kate Winslet's skin. It is rumoured that celebrities are willing to go to extreme lengths to achieve their flawless features. Costly facials using the venom of snakes and bees are favoured by Gwyneth Paltrow, J-Lo is a fan of face masks using the human placenta, whilst Halle Berry opts for fruit-based exfoliants. Many celebrities, including Nicole Kidman, have also admitted to using botox to work away fine lines.
In the UK alone, £600million a year is spent on skin care, with three-quarters of women saying that they worry about the state of their skin over and above their weight or hair. With so many lotions and potions on offer and with the popularity of cosmetic procedures going through the roof, it can be hard to pin down what the best route to take is.
Back to basics
Recently though, there has been a big shift in opinion on what the best way of achieving healthy skin is. Medicinal chef and author of the best-selling The Clear Skin Cookbook
He has also had fantastic result using diet to fight aging, as well as many other common skin conditions. Below is a brief guide to his philosophy on getting the results you want for your skin, whether it is as part of an ongoing routine or for the treatment of a specific problem.
Keep you skin plump and hydrated
There are some delicious and easy to incorporate foods that plump up the skin and encourage rehydration into your daily diet.
- A natural source of fat soluble antioxidants and high in Beta-carotene, sweet potatoes help to protect the collagen in the skin.
- Avocados are rich in Vitamin E which is vital in helping the skin to retain moisture.
- Vitamin C again encourages the production of collagen which makes the skin look firm and smooth, and is found in berries and citrus fruits.
Give your skin a healthy glow
Any non-processed foods that are high in B Vitamins will give your skin luminosity and brightness. The best of the bunch include multi-grain bread, mushrooms, brown rice and asparagus.
Keep the skin tight and line-free
Onions, leeks, eggs and garlic are a great source of the mineral Sulphur. This acts as a strengthening agent for the skin, forming strong bonds in all the skin cells and making it much more supple.
Specific skin conditions that can be treated with changes in diet
Oily Skin and acne
If your skin is shiny and you are prone to break outs, it is usually because too much sebum is being released from the skin's sebaceous glands. This is most often caused by higher-than-normal androgen hormone levels, for example high testosterone. In turn, high levels of insulin in the body cause a release in those hormones.
The key to controlling this condition is to move towards a low GI diet. This means choosing foods that release energy very slowly to avoid blood-sugar spikes.
The best foods to include in your diet for acne prone or oily skin include good quality protein sources such as tuna, foods that contain high levels of zinc like prawns and pumpkin seeds, plus plenty of fresh vegetables (especially red peppers) and whole-grain brown rice.
It is possible to combine these dietary changes with the use of zinc supplements, but always try to get the necessary nutrients and minerals through food first.
Eczema, and dry patches
To combat eczema and dry patches try including plenty of oily fish like salmon or mackerel in your diet. These are extremely high in Omega 3 which helps the body to create its own natural anti-inflammatory compounds. Tomatoes and beetroot are also great for controlling dry skin as they are rich in fat soluble antioxidants. It is also important to avoid too much Omega 6 which is found in vegetable oil.
Healthy skin food checklist
Fill your diet with foods that are high in:
- Vitamin A: will improve skin tone and regulate sebaceous secretions.
- Vitamin C: will help acne heal faster and in the formation of scar tissue. Vitamin C will also give the immune system a boost.
- Zinc: controls androgen hormones and their influence on the sebaceous glands, thus reducing sebum production. Zinc is also an aid to healing wounds.
- Omega 3 fatty acids: these are the number one nutrients for oily skin. They'll speed up healing times on acne and reduce the appearance.
- Fat-soluble antioxidants: are great for managing inflammation in active acne.
More hints and tips for healthy skin
- Drink at least 2 litres of water every day.
- Get a Fruit Juicer and make fruit and vegetable smoothies for a convenient way of getting lots of nutrients in one boost.
- Pomegranates, kale, flaxseed oil, and soy are great for nourishing the skin on your face.
Mangoes are wonderful for a clear complexion; rich in antioxidants are also great for anti-aging.
- Biotin found in wheat germ is essential for skin health; try wheat germ on yoghurt or in a smoothie.
- Avoid fried foods which will make your skin greasy and more prone to break outs.
- Food can also be used to make a great natural face mask. The best ingredients for hydration include banana, oatmeal, honey, and yogurt.
Finding and including foods for healthy skin in your diet is not impossible or even that difficult; it may take some planning, preparation and discipline, but the results are bound to be worth it.


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text: Call Center Representative in Copperas Cove posted: Wednesday, October 05, 2016 Location Copperas Cove, Texas Industry Customer Service & Call Center Job Type Temp to Perm Salary US$ 10.00 - US$ 11.00 per hour Reference Number S_6111 Contact Spring, Danielle, Spherion Apply Now Job Description English Speaking Customer Service Representatives needed ASAP!Find your ideal customer service job now! Spherion-, a recognized leader in the recruiting and staffing industry, is seeking energetic customer service representatives with a desire work in a fast-paced call center environment for a leading business that is opening a new call center in Copperas Cove, TX area. Job Description:Provide superlative service and support to customers via the phone, including: Assisting customers with various inquiries in a timely manner and with a high degree of professionalism; researching and resolving customer issues; inputting customer information into client systems; managing transactions and changes to accounts; and, offering solutions that optimize the customer experience and retain their business. Spherion offers a competitive compensation and benefits package.Working hours: Flexible ScheduleSkills:Requirements:--Customer service skills--Bilingual (English/Spanish) --Strong communication and problem-solving skills--Ability to thrive in a high-energy, fast-paced call center environment--Capable of resolving issues expeditiously and professionally--Ability to multi-task and work well under pressure--Team player with a positive, can-do attitude--Experience or specialized knowledge preferred (not required)--High school diploma (or equivalent) requiredSpherion is a world leader in matching great people with great companies. Our experienced agents will listen carefully to your employment needs and then work diligently to match your skills and qualifications to the right job and company. Whether you're looking for temporary, temporary-to-permanent or permanent opportunities, no one works harder for you than Spherion. EEO Employer: Race, Religion, Color, National Origin, Citizenship, Sex, Age, Disability, Ancestry, Veteran Status, Genetic Information, Service in the Uniformed Services or any other classification protected by law. Qualification High School Apply Now Share icon cancel share Facebook LinkedIn Twitter Google+