Coreth v. Barclays Capital Inc. (In Re Lehman Bros. Holdings Inc.) , 513 F. App'x 75 ( 2013 )

12-3361-bk
Coreth v. Barclays Capital Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
6th day of March, two thousand thirteen.
Present:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
____________________________________________________
IN RE: LEHMAN BROTHERS HOLDINGS INC.,
Debtor.
____________________________________________________
MAXIMILIAN CORETH,
Appellant,
v. 12-3361-bk
BARCLAYS CAPITAL INC.,
Appellee.
____________________________________________________
1
FOR APPELLANT: JONATHAN D. WARNER (George Philip Birnbaum, Law Offices of
George Birnbaum, PLLC, New York, NY, on the brief), Warner &
Scheuerman, New York, NY.
FOR APPELLEE: THEODORE O. ROGERS, JR., Sullivan & Cromwell LLP, New York,
NY.
____________________________________________________
Appeal from a judgment of the United States District Court for the Southern District of
New York (Koeltl, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Maximilian Coreth appeals from an Order of the United States District Court
for the Southern District of New York (Koeltl, J.) entered on July 26, 2012, affirming an Order
of the United States Bankruptcy Court for the Southern District of New York (Peck, J.) entered
on March 8, 2011, dismissing pursuant to Fed. R. Civ. P. 12(b)(6) Coreth’s adversary complaint
asserting a claim for breach of contract. We assume the parties’ familiarity with the facts and
procedural history of this case.
We conduct an “independent and plenary” review of a district court’s affirmation of a
bankruptcy court order. In re Caldor Corp., 303 F.3d 161, 166 (2d Cir. 2002) (internal quotation
marks omitted). Under such review, we accept the bankruptcy court’s factual findings, if any,
unless clearly erroneous, and review its conclusions of law de novo. In re Ades & Berg Grp.
Investors, 550 F.3d 240, 243 n.4 (2d Cir. 2008). We review de novo the court’s dismissal of a
complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Freedom Holdings,
Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004). On reviewing a dismissal pursuant to Rule
12(b)(6), we may consider exhibits to a complaint as a part thereof. Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
2
The district court found that Coreth lacked standing to assert his rights under the Asset
Purchase Agreement (“APA”),1 under which Barclays Capital Inc. (“Barclays”) and Lehman
Brothers Holdings Inc. (“Lehman”) agreed that Barclays would purchase assets and assume
certain liabilities of Lehman following Lehman’s voluntary filing for bankruptcy protection.
Coreth was not a signatory to the APA. Section 13.9 (the “negating clause”) of the APA
precludes third parties from asserting any rights under the APA. This section provides as
follows:
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Nothing in this Agreement shall
create or be deemed to create any third party beneficiary rights in any Person or
entity not a party to this Agreement except as provided below. No assignment of
this Agreement or of any rights or obligations hereunder may be made by either
[Lehman] or [Barclays] . . . without the prior written consent of the other parties
hereto . . . , provided that [Barclays] shall be entitled to assign its rights and
obligations in whole or in part to its Affiliates or to designate its rights to acquire
any assets hereunder to its Affiliates. No assignment of any obligations hereunder
shall relieve the parties hereto of any such obligations. Upon any such permitted
assignment, the references in this Agreement to [Barclays] shall also apply to any
such assignee unless the context otherwise requires.
Joint Appendix, at 69 (emphasis added).
Coreth makes two principal arguments on appeal. First, he contends that the clause
“except as provided below,” which creates an exception to the negating clause, is ambiguous as a
matter of law and therefore the district court erred in dismissing the complaint pursuant to Rule
12(b)(6). See Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d
168, 178 (2d Cir. 2004) (noting that a court generally may not dismiss a claim predicated on an
ambiguous contract term). Insofar as Coreth argues that he falls within the exception to the
negating clause, that argument was not raised below, and we therefore decline to consider it on
appeal. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2004) (noting the “well-
1
The APA was attached to Coreth’s adversary complaint as Exhibit B.
3
established general rule that an appellate court will not consider an issue raised for the first time
on appeal” (internal quotation marks omitted)).
To the extent that Coreth relies on Bayerische Landesbank, New York Branch v. Aladdin
Capital Management LLC, 692 F.3d 42 (2d Cir. 2012), to support his argument that the
exception to the negating clause is ambiguous as a matter of law, we also decline to consider this
argument.2 Even assuming that the clause “except as provided below” is ambiguous and can
reasonably be construed as applying either to the APA in its entirety or to section 13.9 only,
Coreth failed to argue before the bankruptcy court and district court that he falls within that
exception. See Lerner, 416 F.3d at 114. Even if we were to agree with his contention that the
exception is ambiguous, therefore, the fact remains that Coreth cannot claim the benefit of that
exception, and the negating clause precludes his third-party beneficiary status. See India.com,
Inc. v. Dalal, 412 F.3d 315, 321 (2d Cir. 2005) (“Under New York law, the effectiveness of a
negating clause to preclude third-party beneficiary status is well-established . . . .”).
Second, Coreth argues that “triable issues of fact” exist as to whether unpaid bonus
payments totaling $19.6 million constitute “severance payments” such that Barclays is obligated
to pay him pursuant to Article IX of the APA. This argument is wholly dependent on a
determination that Coreth has standing to assert third-party beneficiary rights under the APA.
Given our determination that Coreth lacks such standing, we need not address this argument.
We have considered all of Coreth’s remaining arguments and find them to be without
merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
We recognize that Bayerische Landesbank was decided in August 2012, after the district court issued its July 2012
Order dismissing Coreth’s complaint.
4