By Fanni Koszeg at Bloomberg
In the wake of the financial crisis of 2008, the public became acutely aware
of the existence of collateralized debt obligations (CDOs), bonds backed by
pools of financial assets. While, these transactions had been around for over a
decade, between 2004 and 2007 the volume of highly complex CDOs that repackaged
or referenced mortgage-backed securities grew exponentially.1 These deals arguably amplified the severity of
the financial crisis, and as early as March 2008, lawyers and market
participants expected billions of dollars in write-downs, as well as significant
investor losses.2 Investors in these complex,
privately sold, and illiquid securities filed several lawsuits against the
underwriters and other deal participants, but so far, their success has been
limited. The Securities and Exchange Commission (SEC) also has initiated
numerous investigations, and has filed and settled a number of prominent
lawsuits accusing financial institutions, including Goldman Sachs and Citigroup,
of securities violations.3
Much of the difficulty investors face in CDO litigation stems from the fact
that they are sophisticated market participants who certified that they were
able to assess the risks of the transactions. In reality, however, the
complexity of the deals made it difficult for investors to do their own in-depth
due diligence--in particular in the case of synthetic CDOs--in part because the
underlying mortgage-backed assets were far removed from the primary deal.
Investors often had to rely on marketing materials and verbal presentations by
the banks underwriting the deals. The presence of ostensibly independent
managers who were experts in charge of selecting (and maximizing the value of)
the underlying assets was a significant selling point. It can be argued that, to
the extent CDO managers only acted “as a rubber stamp” for underwriters or deal
sponsors without fulfilling their duty to ensure the CDO performed well for all
investors, the managers were complicit in misleading and possibly even
defrauding investors.4 Holding CDO managers
accountable, however, faces considerable obstacles. The SEC must allocate its
resources carefully due to budget constraints coupled with increased
responsibilities. In addition, lawsuits against third party advisers for federal
securities law violations have become particularly difficult since the Supreme
Court's decision in Janus Capital Group, Inc. v. First Derivative
Traders.5 On the other hand, a recent
Second Circuit decision allowing an investor lawsuit to proceed against a CDO
manager based on contract and tort claims might indicate that courts are willing
to consider the role of these independent advisers and potentially hold them
This article reviews ongoing SEC actions and private litigation involving CDO
managers, highlighting difficulties in trying to assign liability to them given
the complexity of CDO documentation and the previously unregulated nature of the
Broadly defined, a CDO is a financial instrument “backed by portfolios of
assets that may include a combination of bonds, loans, securitized receivables,
asset-backed securities, tranches of other collateralized debt obligations, or
credit derivatives referencing any of the former.”7 The asset portfolios (or derivatives
referencing them) fund payments on notes and equity issued by a CDO special
purpose vehicle to investors.
The CDOs that pooled together mortgage-backed securities came in several
types: (1) pure cash CDOs, where the CDO special purpose vehicle actually owned
a bundle of mortgage-backed securities to service the debt; (2) synthetic CDOs
where cash flows stemmed from various credit derivatives referencing a pool of
mortgage bonds; and (3) hybrid CDOs, which included both cash and synthetic
CDOs could either be static, which meant that the pool of underlying assets
was fixed at the deal's inception and would not change over the life of the
deal; or dynamic, where the CDO manager could buy and sell assets into the CDO
in accordance with certain guidelines. In each CDO, several classes of
securities were issued reflecting varying degrees of risk; the top rated
tranches received less interest but got paid before the lower rated ones.
In the last couple of years before the market for CDOs crashed, synthetic
CDOs became more common because they did not require underwriters or CDO
sponsors to obtain mortgage backed-securities to include in the pool. Instead,
the parties entered into credit default swaps and total return swap contracts
under which payments were made based on what happened to a selected list of
mortgage-backed securities the CDO issuer did not need to own. It was a very
effective way for certain prescient market participants (for example the hedge
funds Paulson & Co. and Magnetar) to short a vast number of specified
mortgage-backed securities.8 Some argue that
this use of synthetic CDOs kept the bubble going beyond the point when real
estate markets began their downward slide towards collapse solely to benefit
short investors and the underwriters and managers charging hefty fees.9 Short investors like Magnetar maintain,
however, that their transactions were hedges and that their “portfolio and
structural preferences were expressed in a manner consistent with general market
practices.”10 In either case, short investors
were not parties to any deal agreements and made no statements or
representations to CDO investors. Thus, they have not done anything illegal that
may lend itself to SEC enforcement or investor litigation. Instead, as discussed
below, SEC investigations and private lawsuits have focused on the underwriters
and, to a lesser extent, CDO managers.
CDO managers selected and obtained the mortgage-backed securities to be
included in a CDO from asset originators--financial institutions that warehoused
pools of these securities. In dynamic CDOs, managers were responsible for
selling assets, replacing collateral, or reinvesting principal in accordance
with investment guidelines. Managers received fees for their services, typically
paid near the top of the “waterfall,” ahead of many investors in the CDOs. In
some cases, however, managers owned a piece of the lowest rated (also called
equity) tranche of the CDO that usually made up about 5 percent of the deal and
was paid last.11 This low priority payment was
supposed to provide the manager with extra incentive to manage the CDO in a way
that was beneficial to all investors. CDO managers were presented to investors
as independent, experienced real estate finance professionals. They also were
represented by their own counsel in deal negotiations with underwriters.
However, according to some commentators, often the managers were “small free
standing firms (the industry joke was 'a couple of guys with a Bloomberg
terminal') who depended on investment bank warehouse lines (lines of credit) to
stay in business.”12
In its CDO-related enforcement actions, the SEC has focused primarily on the
banks that packaged and sold the deals. The SEC has brought actions for
securities law violations for fraud and negligence under Section 17(a) of the
Securities Act of 1933 (Securities Act), as well as certain individuals involved
in the transactions.13 Many of the cases, in
particular against executives, have progressed to the trial stage, requiring the
SEC to expend significant resources.14 As
Robert Khuzami, Director of the SEC's Division of Enforcement put it, these
cases “involve highly complex financial products, market practices, and
transactions where the investor harm is great, the investigatory hurdles are
significant, and the perpetrators most elusive.”15 The combination of labor intensive cases and
limited resources is forcing the SEC to make difficult choices on what cases to
pursue.16 Following Janus, it also has
become more burdensome for the SEC to make a securities fraud claim against any
third parties who are not “ultimately responsible” for the content of offering
documents.17 Nonetheless, in a few prominent
cases, the SEC has taken action against CDO managers.
SEC Settlement with CDO Manager in High-Profile Citigroup Case
Many investigations of CDO managers were in connection with, and ancillary
to, investigations of underwriters.18 For
example, the SEC investigated Citigroup because it failed to disclose that it
was simultaneously marketing the CDO and betting against it through credit
default swaps. The SEC also simultaneously instituted administrative proceedings
against the CDO manager.
Citigroup presented its CDO manager as an independent party and, according to
the SEC, both the pitch book and the offering circular included disclosures that
the manager had selected the collateral for the CDO portfolio.19 The SEC investigation, however, revealed that
Citigroup had influenced significantly the portfolio's composition, a fact that
remained undisclosed to investors.20 The SEC
uncovered several emails and other communications, including “comments by an
experienced collateral manager” that derided the quality of the CDO.21 Given the CDO manager's role in preparing
disclosures, the SEC charged the manager in the administrative proceeding with
violations of Section 206(2) of the Investment Advisers Act of 1940 and Section
17(a)(2) of the Securities Act.22 Ultimately,
the CDO managers and their representative consented to an order directing them
to permanently restrain from the violations and pay disgorgement and penalties
without admitting or denying the SEC's findings.23
But will the settlement of an administrative proceeding have any effect on
any private litigation? Judge Rakoff's analysis that “private investors cannot
derive any collateral estoppel assistance from Citigroup's
non-admission/non-denial of the SEC's allegations” seems applicable.24 Accordingly, private investors are unlikely to
benefit much from the SEC's extensive investigations or findings against
collateral managers to bolster their own lawsuits.
SEC Settlement of Fraud Claims with ICP
A fairly serious case of alleged fraud by a CDO manager was that of ICP Asset
Management LLC (ICP) and its owner, Thomas Priore. ICP was in charge of managing
several CDOs called Triaxx that launched in 2006 and 2007, at the height of CDO
activity. ICP was also an investment adviser to several hedge funds.
The SEC filed a civil action in the U.S. District Court for the Southern
District of New York, accusing ICP of directing “more than a billion dollars of
trades for the Triaxx CDOs at what they knew were inflated prices.”25 The complaint further alleged that ICP was
protecting its other clients from realizing losses by overinflating the value of
the CDO assets.26 The SEC alleged, inter
alia, that defendants violated Section 17(a) of the Securities Act and
directly violated and aided and abetted violations of Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder.27 The strongly worded complaint also referred to
an extensive list of abuses of fiduciary responsibilities to clients, including
“improper practices, such as entering into prohibited investments, failing to
obtain required approvals for trades, misrepresenting the value of holdings, and
deceiving clients, investors, and other parties about the CDOs' investments.”28
Despite extensive investigations and substantial evidence against the
defendants to support the serious allegations, in the end, the SEC deemed it in
the public interest to settle the case. The SEC obtained a consent judgment
where ICP and Priore neither admitted nor denied any of the allegations in the
complaint, but were permanently enjoined from further violations and agreed to
pay $23 million in disgorgement and civil penalties (44 SRLR 1703, 9/17/12).
SEC and Private Actions against Merrill Lynch for Role in Magnetar
Merrill Lynch was one of several banks, including JPMorgan Chase and UBS,
which put together CDOs for Magnetar, a hedge fund investor that wanted to short
the overinflated U.S. housing market starting in 2006.29 Magnetar purchased the lowest rated and
smallest tranche of these CDOs and bet against a much larger portion of higher
rated tranches.30 As owners of the lowest
rated piece of the deal, the hedge fund qualified as a deal sponsor and had
significant influence on how to devise the portfolios, including what parameters
to use to select the collateral.
One of the collateral managers for Magnetar's CDOs, State Street Global
Advisors, paid $5 million to settle the SEC's allegations that it failed to
disclose the hedge fund's role to investors. In contrast, the CDO in question
ultimately resulted in about $450 million in losses to investors (44 SRLR 480,
03/05/2012). According to other reports on State Street's involvement with
Magnetar, State Street apparently had recoiled from managing further CDOs for
Merrill because they were concerned about the quality of the collateral and
considered the deals a potential reputational risk.31
The SEC also investigated Merrill Lynch's role in connection with a Magnetar
CDO called Norma managed by NIR Capital Management, a small firm held out as an
independent manager with the qualifications to manage a $1.5 billion CDO.32 According to a complaint filed by Rabobank, an
investor, against Merrill in New York Supreme Court, a pitchbook for the deal
“extolled NIR's principals as having a 'depth of investment expertise [that]
spans all major sectors of structured finance’” and “promised that NIR would
select assets for Norma's portfolio based upon an independent and rigorous
evaluation that sought to identify ’products that offer superior risk adjusted
returns’.”33 Contrary to these
representations, Rabobank alleged, ”the relationship with NIR fell far short of
the arm's length business relationship that Merrill Lynch had suggested. In
fact, NIR's entire CDO management business had arisen from efforts by Merrill
Lynch to assemble a stable of captive small firms to manage its CDOs that would
be beholden to Merrill Lynch on account of the business it funneled to them.“34 Merrill Lynch ultimately settled the Rabobank
suit. To date, the SEC has not charged Merrill Lynch in connection with the
Unrelated to its role in the Norma CDO, NIR and its principal, Corey Ribotsky
became the subject of an SEC investigation which resulted in a civil lawsuit
against NIR accusing it of defrauding investors (43 SRLR 2003, 10/3/11).35 The SEC complaint sheds light on NIR's dubious
practices as an unregistered investment adviser and accuses NIR of
misappropriating client assets and making materially false and misleading
statements to investors.36
The Magnetar CDO actions exemplify the often incestuous and
conflicts-of-interest-ridden relationships between underwriters and less than
fully qualified CDO managers. However, whether or not these issues amount to
securities laws violations or can serve as a basis for successful private
investor claims will depend on the facts of each case. An ongoing Magnetar
CDO-related case to be watched is the investor lawsuit by Intesa Sanpaolo SpA
alleging securities laws violations and fraud against both the underwriter and
the CDO manager.37
Court Dismisses Claims against Notorious CDO Manager
Perhaps the most well-known CDO manager was Wing Chau, principal of Harding
Advisory LLC (Harding), who was featured prominently in Michael Lewis's book,
The Big Short.38 Chau's activities have
been the subject of investigative journalism pieces uncovering major conflicts
of interest issues and persuasively arguing that Harding was anything but an
independent manager looking out for the interests of CDO investors.39 However, an investor lawsuit that charged
Harding, the underwriter, and the trustee, with failure to pay certain amounts
under the indenture and mismanagement of the collateral, was dismissed against
all but the indenture trustee. According to the court, the non-payment claim was
barred by a no-action clause in the indenture, and the plaintiff failed to
properly allege facts to substantiate the mismanagement claim.
What Will the Second Coming of Aladdin Mean for Investors and
The Second Circuit recently revived an investor suit against Aladdin Capital
Management LLC (Aladdin) in connection with its management of a synthetic CDO
underwritten by Goldman Sachs (44 SRLR 1537, 8/13/12).40 Goldman Sachs also acted as credit default
counterparty to the CDO, which meant that it essentially was buying insurance
from the CDO on the list of mortgage-backed assets included in the CDO
portfolio. The investor, a German bank, asserted that (1) Aladdin breached its
obligations under the portfolio management agreement (PMA) it entered into with
the CDO issuer to the investors' detriment; and, in the alternative, that (2)
Aladdin had been grossly negligent in managing the portfolio.
The district court dismissed the complaint.41 Upon analyzing the deal documentation, the
Second Circuit found that the “plaintiffs have plausibly alleged that the
parties to the [PMA] intended the contract to benefit the investors in the CDO
directly and create obligations running from Aladdin to the investors.”42 The Second Circuit discussed various
provisions of the PMA in conjunction with the indenture and other agreements and
concluded that the PMA was “plausibly intended to inure to the benefit of the
Noteholders.” Otherwise, the Second Circuit held, Aladdin's obligations would
only be enforceable “by the shell Issuer and the swap counterparty … that, as
the counterparty, had interests that were directly opposed to those of the
The Second Circuit also held that the plaintiff “plausibly alleged that the
relationship between Aladdin and the plaintiffs was sufficiently close to create
a duty in tort for Aladdin to manage the investment on behalf of the
plaintiffs.” The plaintiff alleged that it had been induced to enter into the
investment by marketing pitches from the underwriter and Aladdin indicating that
the portfolio would be managed conservatively and Aladdin's interests would be
aligned with the Noteholders’.
Finally, the Second Circuit held that the plaintiff alleged facts that
plausibly show Aladdin's conduct amounted to gross negligence. According to the
court, the complaint included specific allegations regarding certain actions
undertaken by Aladdin in managing the portfolio that suggest that Aladdin failed
to protect the Noteholders' interests by minimizing their investments' risk. In
fact, some of Aladdin's actions could be perceived as benefitting the credit
default swap counterparty to the detriment of the Noteholders.
The Second Circuit remanded the case to the district court. It is possible
that as a result of further proceedings the case against Aladdin will
nevertheless be dismissed. Aladdin may be able to counter the allegations
regarding its questionable actions with further specificity to demonstrate that,
in the context of the transaction, it reasonably exercised its discretion. On
the other hand, if Aladdin is held responsible for mismanaging the portfolio
based on contract or tort claims then investors in many similar CDOs could be
encouraged to go after managers themselves.
CDO managers were instrumental in the creation and fueling of the CDO markets
during the boom years leading up to the financial crisis. They were third party
advisers in charge of looking out for the CDOs' and, accordingly, CDO investors'
interests. Investors lost billions of dollars and still are looking to recoup
some of their investments from whomever they can, including collateral
So far, private investors have mostly alleged common law claims, instead of
violations of the federal securities laws, and the SEC's administrative actions
and civil settlements do not help investors in building these cases. Moreover,
CDOs were done in an unregulated and opaque market and most deal documentation
was exceedingly complex and full of disclaimers by underwriters and managers
However, the Rabobank and Aladdin cases may indicate that courts might be
receptive to carefully crafted, specific complaints regarding CDO managers'
alleged misconduct if they demonstrate that investors were misled about the CDO
managers' role and managers violated their duties to investors.
1 See e.g., SIFMA Global CDO Issuance and
Outstanding tables, available at http://www.sifma.org/research/statistics.aspx.
2 See e.g., Recent Trends and in CDO and
Derivative Litigation, Presentation by Jones Day at NYSBA Derivatives and
Structured Products Law Committee meeting (Mar. 18, 2008), available at http://www.jonesday.com/files/upload/Tambe_NYSBA_Presentation.pdf.
3 For a current overview of the SEC's
financial crisis-related enforcement actions, see http://www.sec.gov/spotlight/enf-actions-fc.shtml.
4 See Tom Adams and Yves Smith, SEC/CDO
Litigation: Why Aren't the Collateral Managers Being Sued too? (Apr. 20, 2010),
available at http://www.nakedcapitalism.com/2010/04/seccdo-litigation-why-arent-the-collateral-managers-being-sued-too.html.
5 131 S. Ct. 2296 (2011). Janus is
particularly relevant because CDO managers do not typically make representations
or other statements to investors in the offering documents or
6 See Bayerische Landesbank v. Aladdin
Capital Mgmt., LLC, No. 11-4306-CV (2d. Cir. Aug. 6, 2012).
7 For a basic summary description of CDOs,
see e.g., Janet Tavakoli, Introduction to Collateralized Debts Obligations,
available at http://tavakolistructuredfinance.com/cdo.pdf.
Many forms of CDOs exist and the collateralized loan obligation (CLO) market
where the portfolio consists exclusively of leveraged loans is still active. See
e.g., Milbank, Tweed, Hadley & McCloy, Client Alert: From Collateral Damage
to Cautious Optimism: the U.S. CLO Market Forges Ahead in 2012 (Mar. 12, 2012),
available at http://www.milbank.com/images/content/7/6/7686/AIP-Alert-From-Collateral-Damage-to-Cautious-Optimism-03-12-201.pdf.
8 See e.g., Jesse Eisinger and Jake
Bernstein, The Magnetar Trade: How One Hedge Fund Helped Keep the Bubble Going,
Pro Publica (Apr. 9, 2010), available at http://www.propublica.org/article/all-the-magnetar-trade-how-one-hedge-fund-helped-keep-the-housing-bubble.
9 Id., see also Yalman Onaran, Buffett,
Tavakoli Flag Scheme Bigger Than Madoff's, Bloomberg News (Mar. 5, 2009),
available at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a.OzozJQwrjQ.
10 Joe Weisenthal and Courtney Comstock,
Magnetar Responds to ProPublica: Goldman and Bear Stearns Did it Too, Business
Insider (Apr/ 20, 2010), available at http://articles.businessinsider.com/2010-04-20/wall_street/29973870_1_cdo-collateral-manager-magnetar#ixzz27UtN6UAT.
11 See e.g., Jay Tambe, Glenn S. Arden,
James K. Goldfarb and John R. White, United States: Commercial Real Estate CDO
Litigation: The Credit Crisis' Next Wave? (Apr. 28, 2009), available at http://www.mondaq.com/unitedstates/article.asp?articleid=78610.
12 Yves Smith, Mirabile Dictu! SEC Probes
Relationship Among Toxic CDO Sponsor Magnetar, Merrill, and CDO Manager (June
15, 2011), available at http://www.nakedcapitalism.com/2011/06/mirabile-dictu-sec-probes-relationship-between-toxic-cdo-sponsor-magnetar-merrill-and-cdo-manager.html#VG6Lrhzl4vvDqqpV.99.
13 See e.g., SEC v. Citigroup Global
Markets Inc., 827 F. Supp. 2d 328 (S.D.N.Y. 2011). For a comparative
analysis of three SEC actions against Goldman Sachs, Citigroup, and JP Morgan,
see Tatiana Rodriguez, Apples to Apples? A Comparison of Recent SEC Enforcement
Actions Involving CDOs, Bloomberg Law Reports®--Securities Law (Nov. 17,
14 See e.g., Joshua Gallu, SEC Trials
Increase 50 Percent as Execs Fight Lawsuits, Bloomberg News (May 22, 2012),
available at http://www.bloomberg.com/news/2012-05-22/sec-trials-increase-50-percent-as-execs-fight-lawsuits.html.
15 Examining the Settlement Practices of
U.S. Financial Regulators, Hearing before the H. Comm. on Financial Services,
112th Congress (May 17, 2012) (statement of Robert Khuzami, Director of the
Division of Enforcement U.S. Securities and Exchange Commission).
17 See e.g., Susan M. Greenwood, Supreme
Court Narrows Securities Fraud Liability to Persons with “Ultimate Authority”
over a Statement, Bloomberg Law Reports®--Securities Law (June 13,
18 See SEC Litigation Release No. 22134
(Oct. 19, 2011), available at: http://www.sec.gov/litigation/litreleases/2011/lr22134.htm.
While the SEC settled the Citigroup action, the Honorable Jed Rakoff forcefully
rejected the settlement. The U.S. Court of Appeals for the Second Circuit
currently is reviewing the order based on a joint request by the SEC and
Citigroup (44 SRLR 1018, 5/21/12).
19 In the Matter of Credit Suisse
Alternative Capital, LLC (f/k/a Credit Suisse Alternative Capital, Inc.), Credit
Suisse Asset Management, LLC, and Samir H. Bhatt, File No. 3-14494 (Oct. 19,
2011), available at http://www.sec.gov/litigation/admin/2011/33-9268.pdf.
21 See SEC Press Release, Citigroup to Pay
$285 Million to Settle SEC Charges for Misleading Investors About CDO Tied to
Housing Market (Oct. 19, 2011) (“One experienced CDO trader characterized the
Class V III portfolio in an e-mail as 'dogsh!t’ and ’possibly the best short
EVER!’ An experienced collateral manager commented that ’the portfolio is
horrible.’”), available at http://www.sec.gov/news/press/2011/2011-214.htm.
22 See supra note 19.
24 Supra note 13.
25 See SEC Litigation Release No. 21563
(June 22, 2010), available at http://www.sec.gov/litigation/litreleases/2010/lr21563.htm.
26 See SEC v. ICP Asset Management, LLC,
No. 10-CV-04791 (S.D.N.Y. filed June 21, 2010) (Complaint), available at http://www.sec.gov/litigation/complaints/2010/comp21563.pdf.
29 See supra note 8.
30 Id. See also Jody Shenn and Joshua
Gallu, Goldman SEC Case May Hinge on Meaning of ’Selected’, Bloomberg News (Apr.
19, 2010), available at http://www.bloomberg.com/news/2010-04-19/goldman-sachs-fraud-suit-hinges-on-meaning-of-selected-in-paulson-abacus.html.
32 See Kara Scannell, SEC Probes Merrill
CDO Sale (June 15, 2011), available at http://www.ft.com/intl/cms/s/0/cf0d5360-96c9-11e0-aed7-00144feab49a.html#axzz1P7gmSwZn;
see also William McQuillen, Merrill Lynch Used Same Alleged CDO Fraud as
Goldman, a Dutch Bank Claims, Bloomberg News (Apr. 16, 2010), available at http://www.bloomberg.com/news/2010-04-16/merrill-lynch-used-same-alleged-cdo-fraud-as-goldman-a-dutch-bank-claims.html.
33 Cooperative Centrale
Raiffeisen-Boerenleenbank, B.A. v. Merrill Lynch & Co., Inc., No. 09-601832,
(N.Y. State Supreme Court, New York County, filed Jun. 12, 2009)
35 SEC v. NIR Group, LLC, No. 11-04723
(E.D.N.Y. filed Oct. 2, 2012) (Complaint), available at http://www.sec.gov/litigation/complaints/2011/comp22106.pdf.
37 Intesa SanPaolo, S.P.A. v. Credit
Agricole Corporate and Investment Bank, No. 12-02683 (S.D.N.Y. filed Apr. 6,
2012). Defendants have filed motions to dismiss, which have yet to be
38 Tyler Durden, A Look At The Lawsuit
Against Michael Lewis, In Which We Find That Brad Pitt Has Bought The Movie
Right To “The Big Short,” zerohedge blog (Feb. 28, 2011), available at http://www.zerohedge.com/article/look-lawsuit-against-michael-lewis-which-we-find-brad-pitt-has-bought-movie-right-big-short.
39 See Jody Shenn, How Wing Chau Helped Neo
Default in Merrill CDOs Under SEC View, Bloomberg News (May 9, 2010), available
40 Bayerische Landesbank v. Aladdin Capital
Management LLC, No. 11-4306, (2d Cir. Aug. 6, 2012), available at http://op.bna.com/srlr.nsf/id/pdid-8wwq4u/$File/aladdin.pdf.
41 Bayerische Landesbank, v. Aladdin
Capital Management LLC, No. 11-00673 (S.D.N.Y. July 8, 2011).
42 Supra note 39.