Deutsche Bank AG v. JPMorgan Chase Bank

331 F. App'x 39
CourtCourt of Appeals for the Second Circuit
DecidedMay 29, 2009
DocketNo. 07-4822-cv
StatusPublished

This text of 331 F. App'x 39 (Deutsche Bank AG v. JPMorgan Chase Bank) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deutsche Bank AG v. JPMorgan Chase Bank, 331 F. App'x 39 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Appellant Deutsche Bank AG appeals from an award of summary judgment to JPMorgan Chase Bank (“JPMorgan”) declaring that (1) Deutsche Bank breached the terms of an amended and restated credit agreement, executed on September 24, 2001, (“the Credit Agreement”) by not fulfilling its contractual obligation to fund its share of Genuity, Inc.’s July 2002 borrowing request (“the Revolver Advance”); and (2) JPMorgan’s proposed distribution of approximately $47 million in Genuity repayments, which seeks to distribute funds to the lender banks in a manner that accounts for Deutsche Bank’s breach, is proper under the terms of the Credit Agreement. At the outset, we note that the district court issued an extremely thorough and thoughtful opinion in conjunction with the challenged order. While we review the district court’s summary judgment rulings de novo, see Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009), our independent review leads us to reach the same conclusion as the district court largely for the reasons detailed in that opinion. Thus, we affirm summarily, assuming the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision.

1. Deutsche Bank Breached Its Obligation to Fund the Revolver Advance

Deutsche Bank submits that the district court erred in concluding as a matter of law that it breached its obligation to fund the Revolver Advance. Specifically, it identifies error in the district court’s failure (1) to give res judicata effect to a bankruptcy court order extinguishing creditor rights relating to “claims or issues” arising from Genuity’s lawsuit against Deutsche Bank, and (2) to recognize material issues of fact respecting breach. Both arguments lack merit and [41]*41warrant little discussion beyond that provided in the district court opinion.

a. Res Judicata

Deutsche Bank’s res judicata argument rests on a misconstruction of the relevant bankruptcy order. As the district court correctly observed, the bankruptcy court’s extinguishment of creditor rights was confined to “objections, defenses, counterclaims and other rights” relating to Deutsche Bank’s filing of a $172,000,000 “general unsecured claim” in Genuity’s bankruptcy case. Order Granting Debtors’ Emergency Motion for Order Under 11 U.S.C. § 363 and Fed. R. BankrJP. 9019 Approving a Settlement Agreement with Deutsche Bank AG at 2 ¶ 3, In re: Genuity Inc., No. 02-43558 (Bankr.S.D.N.Y. Jan. 23, 2003). The bankruptcy court did not, however, restrict litigation of Deutsche Bank’s alleged breach outside Genuity’s bankruptcy. To the contrary, the bankruptcy record clearly indicates the court’s expectation that the inter-bank dispute concerning distribution would be litigated elsewhere, prompting it to order the challenged distribution to be made to the agent (JPMorgan) rather than to the lending banks directly. See Bankr.Tr. at 109-10 (“While certainly Deutsche Bank had a right to file a separate claim, this Court can and will direct that the dividend by paid exclusively to the agent; and if Deutsche Bank finds itself aggrieved by that result because it believes the agent will make a distribution in a fashion that it believes is inappropriate, it certainly has a number of court remedies that it may take to deal with that.”).

As a matter of law, this record cannot support Deutsche Bank’s invocation of res judicata.

b. Breach

Nor does the record indicate material issues of fact respecting breach. The undisputed evidence — accurately detailed by the district court — demonstrated that Verizon had not formally canceled its reintegration option at the time that Genuity requested the Revolver Advance. Deutsche Bank concedes as much in its appellate brief. See Appellant’s Br. at 54. Nor does the evidence show that Genuity knew before July 24 of Verizon’s intent to cancel. Even Deutsche Bank’s best evidence on this point — its “smoking gun,” id. at 56 — indicates that Genuity did not “know what Verizon is going to do.” Funding Analysis at 1, attached as exhibit to July 3, 2002 email from Roger Kuebel to Dan O’Brien.

Deutsche Bank suggests that a material issue of fact is presented as to the bona fides of Genuity’s stated reason for seeking the Revolver Advance, i.e., to reassure its customers of its financial stability. Deutsche Bank points to the affidavit of Genuity’s treasurer, which states that the advance was sought as an “ ‘insurance policy’” to protect against the possibility of Verizon exercising its cancellation option. Aff. of Roger A. Kuebel, Mar. 21, 2006, at 3 ¶ 12. Like the district court, we conclude that completeness demands that this statement be read in conjunction with a clarifying one, in which the same treasurer states that Genuity decided to make the July 2002 draw “to demonstrate [its] financial stability and show cash on [its] balance sheet,” noting further that the treasurer “believed at the time, and still believe[s], that was a true and valid reason.” Aff. of Roger A. Kuebel, June 8, 2006, at 3 ¶ 9. The second statement does not contradict the first; rather, it furnishes Genuity’s business reason for seeking an “insurance policy” mindful of the possibility — not the fact — that Verizon could cancel its option. Under New York law, alleged misrepresentations targeting “future expectations” [42]*42of indefinite events are not actionable. 88 Blue Corp. v. Staten Builders Co., 176 A.D.2d 536, 538, 575 N.Y.S.2d 11, 13 (1st Dep’t 1991); accord Transit Mgmt., LLC v. Watson Indus., Inc., 23 A.D.3d 1152, 1155, 803 N.Y.S.2d 860, 863 (4th Dep’t 2005). Thus, because these statements cannot raise a material issue of fact regarding a default by Genuity that would absolve Deutsche Bank of its funding obligations, we conclude, like the district court, that Deutsche Bank’s breach was established as a matter of law.

2. JPMorgan’s Proposed Distribution

Deutsche Bank submits that the plain language of § 2.14 of the Credit Agreement, as read in conjunction with its “sister provision” of § 2.16, yields only one interpretation: that every lender bank— irrespective of the amount it paid in — must be paid out at the same rate. Appellant’s Br. at 32; see also id. at 35. It further contends that JPMorgan’s contractually conferred powers as agent, as embodied in § 7.01 of the agreement, did not authorize it to construe the contract in a different manner. We disagree.

Like the district court, we conclude that (1) § 2.14 requires JPMorgan to distribute Genuity’s repayment of advances “ratably”; (2) because the Credit Agreement does not define “ratably,” the term is properly accorded its common meaning of “proportional,” or “proportionate,” see United States ex rel. White v. Knox, 111 U.S. 784, 786, 4 S.Ct. 686, 28 L.Ed. 603 (1884); Black’s Law Dictionary 1289 (8th ed.2004); and, to the extent judgment is called for in determining what constitutes a proportionate share, § 7.01 of the Credit Agreement confers broad discretion on JPMorgan to decide that issue. Nothing in § 2.14 specifically indicates how the parties intended proportionate shares to be calculated in circumstances where some lenders satisfied advance obligations in full and others did so only in part.

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Related

White v. Knox
111 U.S. 784 (Supreme Court, 1884)
Sledge v. Kooi
564 F.3d 105 (Second Circuit, 2009)
Transit Management, LLC v. Watson Industries, Inc.
23 A.D.3d 1152 (Appellate Division of the Supreme Court of New York, 2005)
88 Blue Corp. v. Staten Builders Co.
176 A.D.2d 536 (Appellate Division of the Supreme Court of New York, 1991)

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Bluebook (online)
331 F. App'x 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deutsche-bank-ag-v-jpmorgan-chase-bank-ca2-2009.