In re Platinum-Beechwood Litigation, No. 1:2018cv06658 - Document 654 (S.D.N.Y. 2019)

Court Description: OPINION AND ORDER re: [387 in 18-CV-12018] NOTICE OF MOTION: In sum, this Opinion and Order set forth the reasons for the Court's "bottom-line" Order issued on August 18, 2019, which is hereby reaffirmed. In addition, it grants Steinbe rg's motion to dismiss the unjust enrichment claim and the civil conspiracy claim in the SHIP TPC against him, while denying Steinberg's motion in all other respects. The Clerk is directed to close the entry with the docket number 387 on the Cyganowski docket, 18-cv-12018. (Signed by Judge Jed S. Rakoff on 10/7/2019) Filed In Associated Cases: 1:18-cv-06658-JSR, 1:18-cv-12018-JSR(jwh) (Main Document 654 replaced on 10/7/2019) (jwh).

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In re Platinum-Beechwood Litigation Doc. 654 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------- X In re PLATINUM-BEECHWOOD LITIGATION ----------------------------------- 18-cv-6658 (JSR) X MELANIE L. CYGANOWSKI, as Equity Receiver for PLATINUM PARTNERS CREDIT OPPORTUNITIES MASTER FUND LP, PLATINUM PARTNERS CREDIT OPPORTUNITIES FUND (TE) LLC, PLATINUM PARTNERS CREDIT OPPORTUNITIES FUND LLC, PLATINUM PARTNERS CREDIT OPPORTUNITIES FUND INTERNATIONAL LTD., PLATINUM PARTNERS CREDIT OPPORTUNITIES FUND INTERNATIONAL (A) LTD., and PLATINUM PARTNERS CREDIT OPPORTUNITIES FUND (BL) LLC, 1s-c1-1201s (JSR) OPINlON AND ORDER Plaintiff, usnc:svi\ ·: ooClJNENT -vBEECHWOOD RE LTD. et ·---, ii ELECI)lONICALLY FILED DOC#: DATE l-IL-ED_:_.-i~-\--4--- fl.' Defendants. ----------------------------------- ,,i. ,I i. X I JED S. RAKOFF, U.S.D.J. On December 19, ko1s, plaintiff Melanie L. Cyganowski filed I I I a multi-count Complaiht against numerous defendajts. ECF No. 1. On March 27, 2019, defendants Washington Nationat Insurance Company ("WNIC") and kankers Conseco Life Insurance Company ! j ("BCLIC") filed an An~wer, Cross-Claims, and Thitd-Party l I I 1 Complaint ("WNIC TPC"~. ECF No. 75. On March 29, 2019, plaintiff filed a First Amended! Complaint ("FAC"). ECF No. 81. And on May I 15, 2019, defendant Senior Health Insurance Compfny of Pennsylvania ("SHIP"): and Fuzion Analytics, Inc.· ("Fuzion") 1 ' Dockets.Justia.com II filed an Answer, Cross-Claims, and Third-Party C~mplaint ("SHIP 1 TPC"). ECF No. 195. With respect to the FAC, five motions to dismiss have been filed. They are the motions of: (1) Beechwood Rel Ltd. I ("Beechwood Re"), Beechwood Re Investments, LLC ~"BRILLC"), B I Asset Manager LP ("BAM I"), B Asset Manager II Lt=' ("BAM II"), Beechwood RE Holdings~ Inc. ("Beechwood Holdings~), Beechwood Bermuda International:' Ltd. ( "BBIL") , Beechwood ~ermuda Ltd. ("BBL"), BAM Administrative Services LLC ("BAM Arministrative"), Mark Feuer, and Scott Taylor, ECF No. 183; Group, Inc. ECF No. 17 3; 205; (41 (2) CrO Financial ("CNO") and 40186 Advisors, Inc. ( 3) ("40186 Advisors"), PB Investment Holdings, Ltd. (+BIHL") , ECF No. SHIP and Fuzion, ECF No. 156; and (5) TIC and BCLIC, ECF No. 168. 1 With respect to the WNIC TPC, ten motions t!o dismiss have been filed. They are the motions of: (1) BAM Ad1inistrative, BAM I, BBL, BBIL, Beechwood Capital Group LLC ("Bee~hwood Capital"), Beechwood Holdings, Beechwood Re, Feuer Family ~rust, Taylor-Lau Family Trust, Feuer, Dhruv Narain, and Taylor, JcF No. 209; (2) I Beechwood Trust Nos. 7-14, ECF No. 189; (3) Dav.ild Bodner, ECF ! I No. 186; (4) Murray Huberfeld, ECF No. 153; (Stewart) Kim, ECF No. 191; ("Lincoln"), ECF No. 181; (5) IHokyong (6) Lincoln InternaJional LLC (7) David Ottensoser, IECF No. 193; 1 2 ( 8) PBIHL, ECF No. 200; (9) Daniel Saks, ECF No. 177 1 and (10) Will Slota, ECF No. 231. Beechwood Re has also moved !o compel WNIC I I and BCLIC to arbitrate their claims against Beeciwood Re. ECF No. 209. With respect to the SHIP TPC, fourteen motibns to dismiss I I were filed prior to the Court's issuing its "bottom-line" ruling on that date. They are the motions of: (1) BAM Il BAM II, BAM I I Administrative, Beechwood Re, Beechwood Holdings[ BBL, BBIL, Feuer Family Trust, Taylor-Lau-Family Trust, B Apset Manager GP I j LLC ("BAM GP I"), B Asset Manager II GP LLC ("BAr GP II"), MSD Administrative Services LLC ("MSD Administrative!'), N Management LLC ("N Management"), Beechwood Global Distribut~on Trust, Feuer Family 2016 Acq Trust, Taylor-Lau Family 2016 AcR Trust, and Beechwood Capital, ECF No. 284; (2) Beechwood Trlst Nos. 7-14, I I Monsey Equities, LLC, and Beechwood Re Investmen~s, LLC Series C ("BRILLC Series C"), ECF No. 280; (3) Bodner, EdF No. 278; Kevin Cassidy and Michael Nordlicht, ECF No. 282; Feit, ECF No. 344; ( 6) Bernard Fuchs, ECF No. 282 I I· Huberfeld, ECF No. 451 in 18-cv-6658; Lawrence Partners, LLC, ECF No. 356; 276; (11) PBIHL, ECF No. 348; ( 8) (4) (5) Elliot ( 7) Kim, JcF No. 291; ( 9) ( 10) OttenJoser, ECF No. (12) Saks, ECF No. 271; (13) Slota, ECF No. 286; and (14) Whitestar LLC, Whi estar LLC II, 3 j I and Whitestar LLC III, ECF No. 350. (As noted be ow, a fifteenth motion has now been filed.) After receiving full briefing from all rele ant parties, I I the Court held oral argument on August 15, 2019. I In a "bottom- ! line" Order issued on August 18, 2019, ECF No. 3f0, the Court granted the FAC defendants' motions in the folloting respects: • I BAM Administrative: Counts 1-3 (RICO and !RICO conspiracy), Count 4 (Section l0(b) of t~e Exchange Act I and Rule l0b-5), and Count 18 (Unjust En~ichment) were j I dismissed. • BAM I, BAM II, Beechwood Holdings, BRILL, CNO, 40186 Advisors, Fuzion, Feuer, and Taylor: All claims were dismissed. • Beechwood Re, BBIL, BBL, and PBIHL: Coun s 1-3 (RICO and I RICO conspiracy) and Count 4 (Section l0(b) of the Exchange Act and Rule l0b-5) were disrnisfed. • nd RICO SHIP, BCLIC, and WNIC: Counts 1-3 (RICO conspiracy), Count 4 (Section l0(b) oft e Exchange Act and Rule l0b-5), Count 6 (aiding and abe ting breach of fiduciary duty), and Count 7 (aiding andlabetting fraud) I were dismissed. 4 All of the above dismissals with respect to ithe FAC were with prejudice. In all other respects, the motio{s were denied. In the same "bottom-line" Order, the Court ~ranted WNIC TPC defendants' motions in the following respects: I I Bodner, Huberfeld, Kim, Ottensoser, Feue~ Family Trust, • I I Taylor-Lau Family Trust, Beechwood Holdirigs, BAM I, BAM I Administrative, BBL, BBIL, and PBIHL: Co4nts 1 and 2 (RICO and RICO conspiracy), Count 18 (co1tribution and indemnity), and Count 19 (unjust enrichm~nt) were I dismissed. I I Feuer, Taylor, Beechwood Capital, and Berchwood Trust • Nos. 7-14: All claims were dismissed. I I • Lincoln: Counts 1 and 2 (RICO and RICO conspiracy), Count I 6 (negligent misrepresentation), Count li. (contribution and indemnity), and Count 19 (unjust enrjichment) were dismissed. • Narain: Counts 1 and 2 (RICO and RICO c9nspiracy), part I of Count 3 (fraudulent inducement part qnly), Count 18 I (contribution and indemnity), and Count :19 enrichment) were dismissed. (unjust j I I • Saks: Counts 1 and 2 (RICO and RICO conspiracy), part of Count 3 (fraudulent inducement part onl~), part of Count 5 7 (aiding and abetting fraudulent inducem~nt part only), Count 18 (contribution and indemnity), and Count 19 I (unjust enrichment) were dismissed. j Slota: Counts 1 and 2 (RICO and RICO conspiracy), Count 3 • I I (fraudulent inducement and fraud), Count 118 (contribution and indemnity), and Count 19 (unjust enrJchment) were j dismissed. I I All of the above dismissals with respect tol the WNIC TPC were with prejudice. In all other respects, the totions were denied, except that, with respect to Beechwood Re's motion to I dismiss and to compel arbitration, the Court, i1 light of the Court's Memorandum Order dated July 10, 2019, slated it would hold off decision of that motion until the arbi~ration panel I resolves the dispute as to whether WNIC and BCL1·c are precluded from bringing their motion to strike Beechwood dismiss and to compel arbitration. ECF No. 333. 1 I I e's motion to J I In the same "bottom-line" Order, the Courtlgranted SHIP TPC defendants' motions in the following respects: • 1 l Beechwood Global Distribution Trust, Feier Family 2016 Acq Trust, and Taylor-Lau Family 2016 A~q Trust: Count 1 (aiding and abetting fraud), Count 2 (atding and abetting breach of fiduciary duty), Count 5 (civil conspiracy), I and Count 7 . h ment ) were d'ismisse I . d. (unjust enric I j 6 • Bodner, Feit; Huberf eld, Kim, Saks, Slota,, BAM I I, I Beechwood Trust Nos. 7-14, BRILLC Series C, Lawrence Partners, LLC, Monsey Equities, LLC, Whit~star LLC, I Whitestar LLC II, and Whitestar LLC III: ,Count 5 (civil conspiracy) and Count 7 (unjust enrichment) were dismissed. Iismissed. • Cassidy: Count 5 (civil conspiracy) was • Fuchs, Michael Nordlicht, Beechwood Hold'ngs, BBL, PBIHL, BAM Administrative, Beechwood Capital, BM GP I, BAM GP II, MSD Administrative, N Management, Feuer Family Trust, I I and Taylor-Lau Family Trust: All claims ~ere dismissed. . • ) Ottensoser: Count 7 (unjust enrichment) ras dismissed. All of the above dismissals with respect tJ the SHIP TPC were with prejudice. In all other respects, the/motions were denied. In addition, after third-party defendant D~vid Steinberg I was belatedly served with the SHIP TPC, he was given permission l to file his motion to dismiss after the Court issued the bottomline Order on August 18, 2019. ECF No. 387. The/ Court hereby l grants Steinberg's motion to dismiss Count 5 (qivil conspiracy) and Count 7 (unjust enrichment) but denies his :motion in all other respects. 7 This Opinion and Order sets forth the reaso s for the Court's rulings in the ·"bottom-line" Order issue on August 18, 2019 and for the Court's rulings regarding Stein erg's motion to dismiss the SHIP TPC. Background I. I FAC The following allegations are taken from th~ FAC and are I 1 assumed true for the purposes of assessing the mf t'ions to dismiss the FAC. Parties I Melanie L. Cyganowski is the receiver ("Re,eiver") for the "PPCO Funds" consisting of the following plaint,ff entities: (i) Platinum Partners Credit Opportunities Master Fjnd LP ("PPCO Master Fund"), (ii) Platinum Partners Credit Op~ortunities Fund 1 (BL) LLC ("PPCO Blocker Fund"), and (iii) the P CO Feeder Funds (consisting of Platinum Partners Credit Opportu ities Fund (TE) LLC, Platinum Partners Credit Opportunities Fun I LLC, Platinum Partners Credit Opportunities Fund International Ltd., and Platinum Partners Credit Opportunities Fund Intrrnational (A) Ltd.). FAC !! 25-31, 68-70, 76. Each PPCO Feede~ Fund was, I through PPCO Blocker Fund, a creditor of PPCO Master Fund. Id. ! 75. 8 Defendants in the FAC consist of the FAC Be chwood Defendants (as defined below), SHIP, Fuzion, BCL C, WNIC, CNO, l 40[86 Advisors, and John Does 1-100. Id. i~ 46-5,. Fuzion is affiliated with SHIP and was formed in 2012 to pfovide administrative and management services to long-ttrm care insurance companies, including SHIP. Id. 1 121. fNO is a holding company that owns WNIC, BCLIC, and 40186 Advisorb. i Id. 130-31. WNIC and BCLIC operate CNO's legacy long-term care business lines and are advised by 4 0 I 8 6 Advisors. Id. 1,27. The FAC Beechwood Defendants include the F~C Beechwood I Entities (as defined below), Feuer, and Taylor. IId. 47-49. The FAC Beechwood Entities include (i) Beechwood Re,l~i) BRILLC, (iii) BAM I, (iv) BAM II, (vii) BBIHL, (viii) BBL, (v) Beechwood Holding1, (ix) (vi) BBIL, BAM Administrativ4, and (x) WNIC and BCLIC Reinsurance Trusts (consisting o the BRe BCLIC Primary, BRe BCLIC Sub, BRe WNIC 2013 LTC Prima y, and BRe WNIC 2013 LTC Sub). Id. 1 46. PPCO Master Fund, Platinum Partners Liquid Opportunity Master Fund, L.P. ("PPLO") and Platinum Partners Value Arbitrage I Fund, LP ("PPVA") were New York City-based hedg~e funds founded I between 2003 and 2005. Id. 65. The PPCO, PPL9, and PPVA family 1 of funds are referred to as the "Platinum Fundd." Id. I 1 9 j The following non-defendants are relevant t the FAC. Mark Nordlicht, the Platinum Funds' Chief Investment fficer, the Platinum Funds with Huberfeld and Bodner. Id founded 57, 59-60. Levy was Beechwood's Chief Investment Officer inl2014, and in 2015, he rejoined the Platinum Funds as co-Chief/ Investment I I Officer with Nordlicht. Id. - 58. The FAC allege6 that both I Nordlicht and Levy were jointly and solely resporsible for the investment decisions of PPCO Master Fund. Id. 180. Platinum Credit Management LP ("PPCO Portfolio Manager") /served as portfolio manager for PPCO Master Fund and the ~PCO Feeder Funds. Id. 76. The FAC alleges that Nordlicht 1and the PPCO Portfolio Manager breached their fiduciary duty to PPCO Master Fund and the PPCO Feeder Funds. Id. 78. the End of Financial Conditions of PPVA and PPCO 2013 In 2012, the PPVA Funds faced a severe liq idity crisis, because (1) investors were increasingly seeking redemption, (2) most of their investments (e.g., Black Elk, Gol 1den Gate) were illiquid, high-risk, and overvalued, and (3) mJny of the PPVA Funds' portfolio companies needed capital. Id. I~ 91. Like the PPVA Funds, PPCO Master Fund als~ faced a liquidity crisis, because the PPCO Funds' assetls were mostly illiquid, high-risk, and overvalued. Id. 10 ! 101, 103. At the end of 2013, PPCO Master Fund had just $5.7 million ~f cash on hand and was unable to meet the increased redemption iequests or adequately fund its portfolio companies. Id. 01, 105. ' Creation of Beechwood Re To solve the PPVA and PPCO Funds' liquidity crisis, Huberfeld and Nordlicht conspired with Feuer, Tarlor, and Levy to form a reinsurance company, Beechwood Re. Id.j 59, 108. The goal was to attract investment from insurance cobpanies and to l use the reinsurance trust assets to benefit Pla~inum, thereby I enriching Platinum's and Beechwood' s owners. Id.I -I 108. Nordlicht, Huberfeld, Bodner, and Levy own~d and controlled Beechwood. Id. 1 110. Taylor and Feuer maintain~d ostensible and I nominal management authority as, respectively, jresident and Chief Executive Officer of Beechwood. Id. Many +embers of Beechwood's management team were former Platinu~ Fund employees. Id. I 111. Beechwood made no effort to hide from BCLIC, WNIC, I and SHIP its deep ties to the Platinum Funds. Ih. 112. BCLIC, WNIC, CNO, and SHIP By 2012, long-term care carriers such as B'.CLIC, WNIC, and j SHIP were facing increasing claims payments and increasing capital requirements. Id. I 114. Beechwood tarjeted such long- term care insurers with troubled legacy portfolios. Id. II ! 11 115. I . Prior to 2008, SHIP had been owned b y CNO, /hich supported SHIP's liquidity needs and "sought ways to reduce the strain of I supporting SHIP's underwriting losses." Id. SHIP in November 2008. Id. 11 . CNO spun off 118. Even after the spinoff, SHIP's ratio of claims to premiums steadily increased bftween 2009 and 2013, and it faced challenges to satisfying the fegulatory surplus requirements under applicable Indiana in urance law. Id. 123-24. By 2013, SHIP had virtually no option for obtaining reinsurance or other arrangements to off-load it~ long-term care I risk other than through Beechwood. Id. 126. / I BCLIC and WNIC faced similar situations. Id. 127. Furthermore, CNO was "highly incentivized to, a~d did, direct the actions of [CNO's subsidiaries] WNIC and BCJic because its financial health was dependent on BCLIC and WNIJ." Id. 132. The Executive Vice President of BCLIC and WNIC las also the Chief Investment Officer and President of 40\86 Advisors. Id. 134. Consequently, all actions taken by WNIC and BCLIC in the FAC were done in concert with, or at the direct~on of, 40\86 Advisors. Id. Beechwood's Relationship with BCLIC, WNIC, CNO, and SHIP In October 2013, WNIC and BCLIC entered i~to Reinsurance I Agreements with Beechwood by ceding a substantial portion of their legacy, runoff long-term care business ti Beechwood Re. 12 I Id. 1 141. Beechwood Re created the WNIC and BCL~C Reinsurance Trusts, because Beechwood Re was an unauthorized/offshore reinsurer in New York and Indiana where BCLIC an WNIC were domiciled. Id. 1 145. The FAC alleges that CNO w s incentivized to be an "active participant" in the parties' performance of the Reinsurance Agreements, because CNO would be resronsible for any I unsatisfied claims if Beechwood Re was unable to replenish the j WNIC and BCLIC Reinsurance Trusts. Id. i 151. I Between 2014 and 2016, CNO directed WNIC an8 BCLIC to I transfer approximately $592 million to Beechwood pursuant to the j Reinsurance Agreements. Id. i 168. WNIC and BCLIC were "agreeable to the valuation of the assets ascriJed to them by Beechwood because so long as the Reinsurance Trjsts appeared to satisfy the amounts required by Indiana and New!York state law, j they could stay in compliance with their regulations." Id. i 152. j I Similarly, SHIP, acting by and through Fuz~on, 1 entered into I three Investment Management Agreements (collect~vely, "IMAs") I with three Beechwood entities. Id. i 162. All three IMAs I I guaranteed SHIP a 5.85% annual investment return on the net j j 1 Fuzion depended on the continued existence of: SHIP for its financial survival, which is why Fuzion "was h~ghly incentivized to, and did, direct the actions of SHIP in mosti, if not all, investment decisions." FAC i 160. 13 asset value of the assets SHIP contributed; a sh/rtfall would be made up by Beechwood, whereas the surplus would 1e taken by Beechwood as a "Performance Fee." Id. i 163. Alsf, the IMAs provided that Beechwood must invest in a manner bermitted by i SHIP's corporate investment guidelines. Id. i 16{. Over time, SHIP invested approximately $270 million with Be~chwood and its affiliates. Id. i 166. From WNIC, BCLIC, CNO, and SHIP's perspecti~e, the above transactions saved them from their tough financi~l situations. By 2013, over "90% of all long-term care policy /companies exited the industry" and "reinsurance was scarce under ~ery onerous terms." Id. i 221. Reinsurance was "virtually jnavailable for books of legacy long-term care business, such a those of BCLIC and WNIC" except under very onerous terms. Id. 137. Beechwood was their "white knight." Id. ! 115. Furthermor, for WNIC and - I BCLIC, if the fiction of overvalued investments could be maintained by Beechwood, they could maintain a fac;;:ade to their I shareholders, investors and rating agencies thar they had successfully wound down their legacy runoff busiiness. Id. i 221. I I FAC Beechwood Defendants' Assistance to t~e Fraudulent Scheme I Upon receipt of the funds from BCLIC, WNiq, and SHIP, Beechwood, in early 2014, immediately began iniesting into the 14 I I Platinum Funds and their portfolio companies thr loans and purchase of equity in non-arm's length transacti Id. 1 169. The loans to the portfolio companies of the PPCO Funds allowed the PPCO Portfolio Manager to collect millions o dollars in unearned, excessive management and performance f~es based on I overvaluation of the PPCO Funds' assets. Id. 1 1 4. The PPCO Portfolio Manager in turn distributed these fees to various individual Beechwood defendants. Id. The FAC alleges that neither Nordlicht nor ~evy fulfilled j his fiduciary duty to the PPCO Funds in any sue~ non-arm's length transaction, despite their substantial m nagerial role in both Platinum and Beechwood. Id. 11 171-72. The FAC further alleges that Feuer and Taylor substantially ass·sted in each of FAC. Id. 1 173. these problematic transactions identified in th WNIC and BCLIC's Knowled e of the Beechwoo -Platinum Relationship The FAC alleges that CNO, BCLIC, WNIC, and SHIP knew about Beechwood's investments into the Platinum Funds but chose to not ' lose "the white knight" with whom they had offloaded a substantial portion of their future claims ris~. Id. 174-75. For example, Beechwood's quarterly reports to qNo, BCLIC, and WNIC - which were required under the Reinsuran~e Agreements I were full of references to Platinum Fund inves,ments. Id. 1 196. 15 I Other evidence of WNIC and BCLIC's knowledge of /he BeechwoodPlatinum relationship includes, among others, an1email with Levy's biography which described Levy's position as Chief Investment Officer of PPVA and which was circulated among WNIC, BCLIC, CNO, and 40\86 Advisors. Id. 200. Also,] as further I evidence, 40186 Advisors told CNO in February 20/6 that 85% of Beechwood's private loan holdings were associated with the Platinum Funds. Id. I 203. I I The FAC notes that, despite this knowledge,/ WNIC and BCLIC chose not to immediately terminate the Reinsuraqce Agreements. j Only in mid-2016 did WNIC, BCLIC, CNO, and.40\8! Advisors actively seek to separate their Beechwood inves ment from 1 Platinum-related portfolio companies. Id. Furthtrmore, WNIC and BCLIC terminated the Agreements in September 29 2016, only after the public indictment of Huberfeld causedr the Platinum Funds to become a "public relations liability" ~or WNIC and BCLIC. Id. I 205. SHIP's Knowledge of the Beechwood-Platinu Relationship I SHIP also received monthly and quarterly ~eports from Beechwood that "made clear" that the assets bo1ght by Beechwood I had "significant connections to the Platinum F~nds." Id. ! 208. I In February 2015, SHIP entered into a non-arm'¥ length j transaction with Beechwood to satisfy its regu~atory capital 16 requirements, which showed that SHIP was "not a lassive investor being swindled by Beechwood. On the contrary, well aware of the i · I to, SHIP was Wl· 11 1ng Beechwood/Platinum relationship, j9in the scheme." Id. 1 211-19. and did, I The December 2015 Fraudulent Conveyance thJt Harmed PPCO I Later when "Beechwood's investments into tie Platinum Funds were floundering, [WNIC, BCLIC, CNO, 40186 AdviJors,] and SHIP directed Beechwood to consummate several fraudu~ent conveyance transactions with the PPCO Fund[s] between 2015 and 2016, which had but one goal: rid the insurers of bad asset 9 by dumping them into the PPCO Funds and/or securitize the posit+ons they were unable to dispose of by obtaining a lien in sub tantially all of the PPCO Funds' assets." Id. 1 176. In doing so they also "aided and abetted the Platinum/Beechwood fraud and their respective breaches of fiduciary duty." Id. 1 2 2. 1 In December 2015, PPCO Master Fund issued la $15. 5 million note to SHIP ("SHIP Note"). Id. , 225. The SHI~ Note was secured by almost all assets of PPCO Master Fund and c~rtain of its direct and indirect subsidiaries (collectivelyj "MSA PPCO I Subsidiaries"). Id. 1 226. The funds that PPCO!Master Fund I received by issuing the SHIP Note were siphonef from the PPCO I Funds in the following ways: • I I Disbursement by BAM Administrative (as :agent for SHIP) to I I 17 . ... • Beechwood Bermuda and Beechwood Re for PPCO MaJter Fund to purchase the Desert Hawk debt held in SHIP's account. Id. <JI 230. However, "at the time of the transaction, the Desert Hawk debt was not worth the value it was ascribed by Nordlicht and SHIP." Id. • <JI 232. Full repayment by BAM Administrative (as agent for SHIP) of all indebtedness owed by LC Energy, a Platinum Fund affiliate, to the WNIC and BCLIC Reinsurance Trusts. Id. <JI 233. These debts were also worth well below the value that WNIC, BCLIC, and Nordlicht ascribed to it. Id. <JI 234. On January 20, 2016, SHIP loaned an additional $2 million to PPCO Master Fund, which again was secured by the MSA PPCO Subsidiaries. Id. <JI 235. The outstanding amount loaned by SHIP rose to $17.5 million (the "First Amended SHIP Note"). Id. These transactions were "nothing more than a mechanism through which to place the bad loans to Desert Hawk and LC Energy onto the PPCO Funds' books for the benefit of SHIP and BCLIC and WNIC" Id. <JI 238. The FAC alleges that "the PPCO Funds and its creditors, including the PPCO Feeder Funds, and the PPCO Blocker Fund, were the victims of actual fraud which is subject to avoidance under New York State law" and argues that "the 18 liens granted on the assets of PPCO Master Fund Subsidiaries should be avoided." Id. the MSA PPCO 239. The March 2016 Fraudulent Conveyance that H~rmed PPCO On March 21, 2016, PPCO Master Fund, BAM Administrative, as I . I agent, SHIP, and the WNIC and BCLIC Reinsurance ~rusts entered ' into an approximately $69.1 million Note Purcha~e Agreement (the "March NPA"), which amended and restated the Fi+t Amended SHIP Note and authorized the sale of additional notes by PPCO Master Fund. Id. ' 240. These additional notes were sejured by certain other PPCO Fund subsidiaries and affiliates ("NA Guarantors"). I An additional $52.5 million received (on top of j$17.5 million already loaned under the First Amended SHIP NotJ) was channeled back to SHIP, WNIC, and BCLIC in exchange for SJIP and BRe WNIC I 2013 LTC Primary (one of the WNIC and BCLIC Rei~surance Trusts) I assigning debts they held in Northstar Offshore! (the "Northstar I Debt") to PPCO Master Fund, and in the form oft loan to PPVA, the proceeds of which, in turn, was used to purchase the I I remaining Northstar Debt from SHIP. Id. 11 246-48. The purchase of the Northstar Debt amounteb to a fraudulent conveyance, because the valuation of the Northstar Debt was "substantially overstated." Id. 1 250. Essentia·lly, the above . l transactions were consummated to rid SHIP and ,Re WNIC 2013 LTC Primary of the Northstar Debt that had "little ~o no chance of 19 performing." Id. <J1 249. "In the end, the PPCO Furds and their portfolio companies were left with liens on substantially all of I I their assets while being saddled with an interest in a company Northstar Offshore - on the verge of bankruptcy ~nd a receivable I from an equally financially precarious PPVA." !st_ I I The December 2015 and March 2016 transactio'ns were allegedly "structured, negotiated and consummate'.d with the l substantial assistance" of Beechwood, WNIC, BCL]C, CNO, Advisors, SHIP, and Fuzion. Id. II. <J1 40186 j 253. I I WNIC TPC ' The following allegations are taken from t1e WNIC TPC and ' are assume d true f or t h e purposes o f assessing 1 . 4h emotions to dismiss the WNIC TPC. Parties WNIC and BCLIC are insurance companies domiciled in New I York and Indiana, respectively. WNIC TPC both subsidiaries of CNO. Id. <J1 <J[<J[ I 4781 479. They are 470. They allege that each of 1 I the cross-claim and third-party defendants inteftionally took part in the conspiracy in which these defendants made misrepresentations to (1) induce WNIC and BCLrcl to enter into i ' the Reinsurance Agreements with Beechwood Re, through which WNIC l and BCLIC invested $600 million in reinsurance trusts managed by I Beechwood Re, and (2) prevent WNIC and BCLIC frbm terminating 20 j the Reinsurance Agreements and withdrawing theiri investment, whereby such money was used as a "piggybank for flatinum." Id. i 474. The "linchpin of the conspiracy" was to hide from WNIC and BCLIC that Beechwood Re and Beechwood entit~es were I controlled and owned by Platinum and other PlatJnum-affiliated I people such as Nordlicht, Huberfeld, and Bodner ,I because I otherwise WNIC and BCLIC would not invest with Beechwood entities given Platinum individuals' checkered Jast. Id. 533. The injuries to WNIC and BCLIC as a result of tJis conspiracy are claimed to exceed $195 million. Id. l 683. Cross-claim/third-party defendants in the • INIC TPC are: Nordlicht, Huberfeld, and Bodner, co-Fourders of Platinum. Id. i i 480-82. Nordlicht ultiJately controlled - I the assets WNIC and BCLIC entrusted; Hu9erfeld and Bodner conducted the conspiracy's day-to-day bJsiness through a I secretary. Id. • Feuer and Taylor, former Chief ExecutivJ Officer and j President, respectively, of Beechwood RJ. Id. i i 483, I 485. They also were founders of Beechwood Re and the I principals of most Beechwood entities. Ii.:_ • .l t Feuer Family Trust and Taylor-Lau Family Trust, truss 'I with Feuer's and Taylor's families as b neficiaries, I 21 respectively. Id. 484, 488. These tru1ts were asset protection vehicles for siphoning off ga ns from the I 'I fraudulent schemes. Id. Levy, Senior Manager of Platinum and Beelhwood, as well • l as former Chief Investment Officer of Be~chwood Re and 1 BAM I. Id. 489. He directed the investment of WNIC and BCLIC's reinsurance trust assets. Id. • Hodgdon, Slota, Leff, Manela, Saks, Kim,I and Poteat, all senior managers of Platinum. Id. 489,J 493, 498, 500, ' 504, 505, 506. They misrepresented thems~lves (and others misrepresented them) to WNIC and BCLIC ab, respectively, l Managing Director/Chief Underwriting Off~cer, Chief I Operating Officer, Portfolio Manager, Portfolio Manager, Chief Investment Officer, Chief Risk Of icer, and Chief Technology Officer of Beechwood Re and • Small, Managing Director of Platinum. Id. rd. 496. He misrepresented himself (and others misr~presented him) to I I WNIC and BCLIC as a Portfolio Manager off Beechwood Re and j BAM I. Id. • Ottensoser, General Counsel of Platinum~ Beechwood Re, BAM I, and BAM Administrative. Id. • I 502. Narain, Chief Investment Officer of Beelhwood Re and BAM j 22 I starting in January 2016. Id. I 5~8. Hj directed the investment of WNIC's and BCLIC's reinsur nee trust assets in Platinum-controlled funds and entitiel. Id. • Beechwood Re, a Cayman Islands insurer tJat entered into I the Reinsurance Agreements with WNIC andiBCLIC. Id. • 509. Beechwood Holdings, a Delaware corporatifn and the parent of Beechwood Re. Id. I j 511. Beechwood Capital, a Delaware limited paktnership and • I agent for Beechwood Re. Id. 512. I BAM I, a Delaware limited partnership anl agent and • investment manager for Beechwood Re. Id.Ii 513. l BAM Administrative, a Delaware limited lliability company • and agent for Beechwood Re and BAM I in Jadministrating I all aspects of the Reinsurance Agreemenys, along with I Beechwood Re and BAM I. Id.~ 514. • ] BBL, BBIL and BBIHL (predecessor-in-intJrest to PBIHL), Bermuda entities and the transferees oflcertain "capital" I I of Beechwood Re as discussed below. Id.;~ 515-17. • I Beechwood Trusts No.1-20, trusts establ}shed and ! controlled by Nordlicht, Huberfeld, Bodter or Levy. Id. 518. 23 • Beechwood Series A through I, vehicles established and controlled by Nordlicht, Huberfeld or Bodter for funding and controlling Beechwood. Id. 1 520. Also, they were asset protection vehicle for siphoning o~f gains from the I fraudulent schemes. Id. • I Lincoln, a valuation vendor that Platinu0 and Beechwood I I retained from early 2014 to early 2015. Creation of Beechwood Re By 2013, when Platinum's "key investment ald properties, including Black Elk and Golden Gate, were hemor~haging red ink," I Platinum started "relying almost exclusively on/new investments and inter-fund loans to fund investor redemptions." Id. 1 523. I Specifically, Nordlicht, Huberfeld, and Bodner Janted outside funding from institutional investors such as WNiC and BCLIC. Id. 524. However, they knew institutional investo s would not invest in Platinum because of their high-risk i~vestment • I strategy and their "checkered past" of making s eculative investments with unsavory companies, getting in~olved in scandals, and having criminal records. Id. 521s. I To attract capital from WNIC and BCLIC, Ptatinum - through Nordlicht, Huberfeld, Bodner, and Levy - enterJd into a conspiracy with Beechwood Capital through Fe~er and Taylor whereby they agreed to establish and use a reiAsurance company, 24 I Beechwood Re, to induce WNIC and BCLIC to "hand ~ver funds to Beechwood, via reinsurance agreements or otherw~se, so that Beechwood could use those funds to keep PlatinuJ afloat." Id. ':II 532. Misrepresentations Prior to the Entry into the Reinsurance Agreements I To induce WNIC and BCLIC to enter into the]Reinsurance l I Agreements with Beechwood Re, Nordlicht, Huberftld, Bodner, Feuer, Taylor, Levy, Hodgdon, Slota, Small, Leff, Manela, Ottensoser, Kirn, Saks, Poteat, and Lincoln ("coJconspirators•: made representations regarding: "(a) who owned ieechwood Re and I other Beechwood entities, (b) Beechwood Re's caf ital, ( c) how I Beechwood Re would invest the assets that WNIC and BCLIC would transfer to Beechwood Re under reinsurance agre~ments, and (d) 1 who would control and operate Beechwood Re and pther Beechwood entities." Id. ':II 537. First, from the earliest contacts with WNIC and BCLIC in I I . 2013 through the signing of the Reinsurance Agr;eements in I 1 February 2014, Beechwood Capital and Beechwood ~e repeatedly misrepresented the ownership structure of BeecJwood by stating that Feuer, Taylor, and Levy owned and control~ed Beechwood Re, Beechwood Holdings, and BAM I. Id. ':II':II 538-41. ]n fact, I Beechwood's internal documents reveal that Nordlicht, Huberfeld, I I 25 I and Bodner controlled and owned a substantial stlke in these entities. Id. ! 542. Second, starting in the summer of 2013, BeeJhwood Capital and Beechwood Re repeatedly misrepresented that ieechwood had I over $100 million in capital when in fact Beechwrod Re and Beechwood Holdings had less than $300,000 in cap~tal. Id. ! 543. l Specifically, Nordlicht, Huberfeld, and Bodner crused BRILLC to issue a demand note in the amount of $100 million (the "Demand Note") to Beechwood Re. Id. ! 545. Based on thiJ,I Beechwood i continued to represent to WNIC and BCLIC that B~echwood had over $100 million in capital, while hiding the true 1ature of the Demand Note from WNIC and BCLIC. Id. ! ! 545-46. 1The collateral that backed the Demand Note "took the form of P atinumcontrolled funds and entities, which . were fraudulently overvalued." Id. ! 548. Third, Beechwood entities and the co-consp~rators misrepresented Beechwood Re's intentions and ab~lities as to how I it would invest $600 million funds that WNIC ana BCLIC placed in I their reinsurance trust accounts, who would ser:ve on the I Beechwood investment committee, and so forth. ~d. ! ! 550-51, 563-64, 566-71. In addition, Beechwood Re reprJsented that it I would grant only WNIC and BCLIC a first prioriiy security interest in those reinsurance trust accounts 26 (as required by insurance laws and regulations), but it simultan~ously granted a f irs · t I · · t y security · . . those accoun~s to Nomura priori interest in Securities in order to get this prime broker to lxtend credit to Beechwood Re and BAM I to make further investmenks in Platinum, controlled funds and entities. Id. i i 556-57. Ndither WNIC and BCLIC nor Nomura knew of this simultaneous grant! of a first I I priority security interest. Id. j Fourth, starting in July 2013, Feuer, Tayl,r, and Levy represented other employees of Beechwood as Beeqhwood employees to WNIC and BCLIC, when in fact they were PlatiJum employees I receiving paychecks from Platinum. Id. i i 572-73. The co- I ' conspirators made conscious efforts throughout 1 any years to maintain this optic of separation between Plati,um and Beechwood I in the eyes of BCLIC, WNIC, and federal and stale regulators. Id. i i 574-91. Misre resentations After the Entr into th~ Reinsurance Agreements I Relying on the above four kinds of misrepr~sentations, WNIC j and BCLIC entered into the Reinsurance Agreeme~ts on February I I 10, 2014. Until the termination of the Reinsur~nce Agreements in September 29, 2016, Nordlicht, Huberfeld, Bodn r, Levy, Feuer, and Taylor directed other cross-claim and thir -party defendants and used the reinsurance trust assets to enric 27 themselves and l j Platinum entities. Id. 1 606. In addition, the atove four types of misrepresentations continued in the following/manner, for the purpose of preventing WNIC and BCLIC from terminfting the 1 Reinsurance Agreements. ! ' First, in 2014 and 2015, when WNIC and BCLIC pressed Feuer, I Taylor and/or Levy about the relationship betweep Platinum and Beechwood - prompted by over $100 million of trust assets invested in Platinum-controlled funds such as P~CO, Black Elk l Energy Offshore Operations LLC ("Black Elk"), G~lden Gate Oil LLC ("Golden Gate"), and ALS Capital Ventures LJC ("ALS") Feuer, Taylor and/or Levy repeatedly denied the/existence of any relationship between Beechwood and Platinum. IdJ 1 611. The coconspirators' ju•stification for putting money il the Platinum entities was because "Levy was familiar with thim and believed I T they were valuable investments based on his forfuer employment with Platinum." Id. 1 612. Second, with respect to Beechwood Re's cap~tal, on or about May 16, 2014, the co-conspirators amended and r)estated the Demand Note downward from $100 million to $25 million without communicating this to WNIC and BCLIC. Id. 1 61~. $75 million in "capital" was diverted to Beechwood Bermuda en~ities to (a) j I satisfy applicable Bermuda insurance law requitements that these Bermuda entities be adequately capitalized and1 (b) purchase 28 II certain assets. Id. !! 618, 625. Meanwhile, from] December 2014 to January 2015, Feuer and Taylor repeatedly tol~ WNIC and BCLIC that Beechwood Re had over $100 million in "capi al." Id. ! 621. In January 2015, Taylor was forced to tell the truth to WNIC and BCLIC, upon which Taylor also falsely claimed t1at the "Beechwood Companies [had] an irrevocable right Ito the assets I within a Delaware Series LLC" and that Beechwoo4 "considers the entirety of Beechwood's capital as available tojsupport any I I liabilities within our companies . first anq foremost being I the WNIC and BCLIC blocks." Id. ! 623. The tranifer of $75 million in the Demand Note from Beechwood Re tojthe Beechwood Bermuda entities left Beechwood Re grossly undefcapitalized. Id. , I 626. Third, the Beechwood management team wore ioth Beechwood and Platinum hats but tried concealing this by, for instance, only using their Beechwood email addresses when communicating with WNIC and BCLIC. Id. ! 629. By the end of 2014, Feuer and Taylor finally admitted that Levy had been usijg his investment I discretion inappropriately, promising to WNIC ~nd BCLIC that 1 Levy would be separated from Beechwood and tha~ Beechwood Re and its agents would "divest the trust assets of Platinum-controlled I funds and entities." Id. ! 631. Levy was formally replaced with Saks, but, behind the scene, Levy continued di 1 ecting Beechwood 29 r Re's investments of trust assets with direction from Nordlicht. Id. 632-34. In addition, during 2015 and 2016j Beechwood Re I and its agents divested only some of Platinum-coftrolled investments and also added additional Platinum-c/ntrolled investments to the WNIC and BCLIC trusts' portfo~ios, not fulfilling the promise. Id. 633. I I I Fourth, misrepresentations continued as to Ihow trust assets would be invested. In 2014 and 2015, the Co-Consbirators sought ) to establish additional prime brokerage arrange1ents, in addition to the arrangement with Nomura discuss~d above, by I granting them a first priority security interesti. Id. 639-40. r Furthermore, Feuer, Taylor, Levy, Kim, Saks, an/ Levy repeatedly assured WNIC and BCLIC of the "prudency of theit investments" whenever WNIC and BCLIC confronted them about p~tting trust I assets into illiquid and speculative Level 3 assets and l ventures, including JF Aircorp, Trilliant, LLC,i Kennedy RH Holdings LLC, and Platinum-controlled funds anl entities such as Agera, LC Energy, PPCO and Golden Gate Oil. Id. 642, 644. Also, they represented that these transactions were at "arm'slength." Id. 644. Breach of the Reinsurance Agreements by Bdechwood Re I Beechwood Re also allegedly breached the 401lowing I provisions of the Reinsurance Agreements: / 30 I • In "each of the primary trust accounts ffr WNIC and BCLIC, Beechwood Re was required to depo it and maintain 1 assets that had an aggregate fair market/value of 102% of the expected future liabilities for the ~olicies that WNIC or BCLIC (as applicable) ceded." Id[ '.I[ 658. This was I I meant to serve as collateral for Beechwo9d Re's ' obligation to pay future claims on the c~ded policies. Id. This requirement was not satisfied, ~n part because ' Beechwood relied on inflated valuations ~f asset and the l fair market values impermissibly includef investments in Platinum-controlled funds. Id. '.I[ 659-60,, 662. I • If the fair market value of the assets ~n the trusts fell below the aforementioned contractual th~esholds, Beechwood Re was required to top up. Bejchwood Re did not top up, as it relied on the inflated va~uations. Id. 661. '.Il I I • If the fair market value of the assets tn the trusts were above the contractual thresholds, Beechfood Re could withdraw "surplus" from the funds and d}stribute as it saw fit. Based on the inflated valuatio~s, Beechwood Re I repeatedly withdrew these unearned "surplus." Id. '.Il I • I Beechwood Re "breached its obligations fo divest the I 31 662. I trust accounts of investments that did n)t comply with the investment guidelines." Id. i • 664. , Upon termination of the Reinsurance Agre1ments on September 29, 2016, Beechwood Re was req~ired to pay WNIC and BCLIC (1) "cash or admitted invested;assets having a I ' fair market value equal to the statutory/reserves attributable to the liability [WNIC and BCLIC] recaptured" and (21 •a proportionate amotnt of the Negative Ceding Commission". Id. i 668-68. According to I these provisions, WNIC and BCLIC were ow~d over $150 I million, which has not been paid. Id. l Exposure of the Fraud / On June 8, 2016, Huberfeld was arrested, a&d news broke out that Huberfeld and Nordlicht had been using Beebhwood Re to attract institutional investors for the Platinu~-controlled I funds and entities. Id. i 677. In reaction, WNI~ and BCLIC began l reviewing and auditing the trusts' investments,1 discovering many issues. Id. Finally, WNIC and BCLIC terminated khe Reinsurance i Agreements on September 29, 2016. Id. i 681. Lincoln's Participation in the Fraud , The remainder of the allegations focus on/Lincoln's participation in the scheme. ' As the Reinsurance Agreements were I getting finalized, Beechwood Re needed "a valuttion firm to 32 ! issue quarterly reports that would show WNIC anJ BCLIC the reinsurance trust assets were being safely and 1rudently invested," which would require "mak[ing] self-dialing look legitimate." Id. ! 691. Lincoln, eager to get n,w and more businesses from Platinum, filled in this role. ~d. 692, 700- 02. Before the engagement, Lincoln "understood Jhat Platinum had I established Beechwood Re as an affiliated reins rer that it 1' controlled for the specific purpose of providing Platinum with 'permanent capital,' including by 'leverag[ing] !reinsurance premiums as a source of capital.'" Id. ! 699. I Lincoln knowingly issued valuation reports)based on incomplete, false, and misleading information.~~ 707. For instance: • I Lincoln accepted without verification ttte inflated, selfj reported and unsupported net asset valu figures in 1 valuating the Platinum fund investments~ Id. • 711. When Lincoln requested investment committee memoranda, financial statements, and offering memo 1 anda of Golden I Gate, PPCO, and Black Elk on February 2[, 2014, Lincoln received only financial statements of these entities (and for Black Elk, the statements were for ?012), and it did I I not press further for necessary supporting documentation. Id. 712. 33 I • Lincoln wrote negative assurance lettersjstating there was "nothing that came to our attention !hat would lead j us to believe that management's fair valles estimates as shown are unreasonable," based on questiinable financial information supplied without any supporttng j documentation. Id. • 714. I I As for positive assurance valuations, Beechwood Re often dictated which methodology Lincoln neede~ to use - or Lincoln changed its methodology on its own - to make sure that the desired valuation falls within ~he ranges produced by a chosen methodology. Id. ~1 726, 745-47. • Lincoln knew that Beechwood Re and Platinum entities were ' related and that, therefore, the transa9tions involving I Beechwood Re, BAM I, and BAM Administra~ive's investments I into Platinum-related entities and funds could not have I I been at arm's length. Id. - 718, 733. Jonetheless, l Lincoln continued to assign a fair valu¢ of 100% as if these transactions were at arm's length) Id. • 733. l Lincoln did not maintain independence, because it "capitulated to Beechwood Re, [BAM I] a~d BAM Administrative's requests to change loan descriptions and I to remove ratings, references to Platinpm, and any I 34 j discussion of 'speculative assets' reports." Id. <JI from lts valuation 737-42. Lincoln's reports, including the negative assur~nce letters and positive assurance valuations, justified Beechw,od Re's withdrawal of "surplus" from the trusts while a~oiding its obligation to top up. these documents - Id. <JI 721. And WNIC and BGLIC relied on of which reliance Lincoln was !aware of - to assume their reinsurance trust assets were "saf~, reliable and valuable." Id. <J[<J[ I 728, 752-53. I By Dece~er 2014, it became "more difficulf for Lincoln to simply ignore the issues with Beechwood Re, [BAI I], and BAM Administrative's investment values, insufficienf collateral, and countless self-dealing investments in Platinum ind Platinumrelated entities." Id. <JI 760. For the first timl, in its 2014 Q4 valuations, Lincoln dropped the positive assura~ce valuations from previous 100% fair value to roughly 70-90% range for various Platinum-related investments. Id. <JI 768r On February 5, I 2015, a Lincoln employee directed other employeies to "go back and cleanse your files on the Beechwood valuati;ons in accordance I I with our record retention policy. Please delet~ any draft models or reports and just hang onto the final models lnd analyses.• Id. 1 774. On February 19, 2015, Lincoln sent 1,i notice of termination to Beechwood. Id. <JI 780. 35 III. SHIP TPC SHIP TPC and The following allegations are taken from are assumed true for the purposes of assessing l motions to 1he j dismiss the SHIP TPC. I Parties j Cross-claim and third-party defendants inciude: I • Beechwood Capital, a New York limited li:abili ty company. SHIP TPC 9. Beechwood Re, a Cayman Island reinsuran~e company and • I party to an IMA, dated June 13, 2014, w~th SHIP. Id. • 11. Beechwood Holdings, a Cayman Islands entjity and the parent of Beechwood Re. Id. • 12. BBIL, a Bermuda reinsurance company and,party to another I IMA, dated May 22, 2014, with SHIP. Id.!~ 13. • BBL and BBIHL (predecessor-in-interest to PBIHL), Bermuda reinsurance entities. Id. • 14-15. BAM I, a Delaware limited partnership a•d party to the third IMA, dated January 15, 2015, with'.SHIP. Id. I • 16. BAM II, a Delaware limited partnership ind investment j advisor for other Beechwood entities. -Id. , - 17. ' • Beechwood Asset Management Trust I and Beechwood Asset 36 Management Trust II, entities through whlch Nordlicht, Huberfeld, Bodner, Levy, Feuer, and Tayl r owned BAM I. I ' Id. 1 18. • BAM GP I and BAM GP II, Delaware limitedlliability companies. Id. 1 19. BAM Administrative and MSD Administrativ~, Delaware • limited liability companies. Id. 1 20. I Nordlicht, Huberfeld, and Bodner, Co-Fourders of • Platinum. Id. ~1 21-24. They exerted sig~ificant control l over the entire Platinum-Beechwood enter~rise's affairs I I and orchestrated investment decisions. I:d. • Platinum Management (NY) LLC ("Platinum ~anagement"), a Delaware limited liability company and ~he general partner of PPVA. Id. 1 25. Its investmerlt, risk, and I valuation committees set valuations of IPVA's investments, which permitted them to ov1rcharge I performance fees. Id. • j Beechwood Trusts Nos. 1-20, trusts esta*lished and I I controlled by Nordlicht, Huberfeld, Bodner or Levy. Id. I 1 518. Each held ownership interests iniBeechwood Holdings and BBL. Id. • 26. Feuer Family Trust and Taylor-Lau Famill/ Trust, trusts I 37 I organized for Feuer's and Taylor's familtes as beneficiaries, respectively. Id. 27, 1s. BRILLC Series A through I, vehicles esta+lished and • indirectly controlled by Nordlicht, Hubeffeld and/or Bodner. Id. • 30. Dahlia Kalter, the wife of Nordlicht and1 an absolute j guarantor, along with Nordlicht, of the ~ontsant Note Purchase Agreement dated January 30, 201~, on behalf of Montsant Partners LLC in favor of SHIP. Jd. 32. I N Management LLC ("N Managementu), a Delaware limited • liability company and agent to the BRIL~C Series A-I. Id. I 33. Beechwood Global Distribution Trust, Feuer Family 2016 I • ACQ Trust, and Taylor-Lau Family 2016 A1Q Trust, trusts created by Feuer, Taylor, Levy, Nordlicqt, Huberfeld, and Bodner for the August 5, 2016 transacti1ns to conceal I Nordlicht, Huberfeld, and Bodner's econJmic interest in Beechwood entities. Id. o 34. Feit, Chief Financial Officer of BAM I, ;responsible for i calculating any performance fees that t~e Beechwood parties to the IMAs took. Id. • 35. I Saks, a portfolio manager at Platinum Mpnagement until I 38 j 2014 and Chief Investment Officer of BAMI I starting at the end of 2014. Id. 1 37. I • Estate of Uri Landesman, representing thf interests of the late Uri Landesman, who passed away fn September 14, ' 2018 and who was former President and ma~aging partner of l Platinum Management. Id. 1 38. J Small, managing director of Platinum Man~gement. Id . • j 1 39. Ottensoser, General Counsel of Platinum panagement, PPVA, • and, during early stages, certain Beech~ood entities. Id. ' • j 41. Naftali Manela, Chief Operating Officer of PPVA, employee of certain Beechwood entities, and membdr of the Platinum Management valuation committee. Id. • 4,. Kim, a senior manager of Platinum Manag,ment and Chief Risk Officer of Beechwood Re and BAM I. Id. 1 44. • Slota, a senior manager of Platinum and Chief Operating Officer of Beechwood Re and BAM I. Id. • Fuchs, an indi victual with no official 45. tL tle but had "day- 1 i to-day involvement in the management ano operations of I Platinum Management and PPVA." Id. 1 46L • I Michael Nordlicht, a nephew of Nordlich~ who participated 39 in the Agera transactions. Id. • 48. Cassidy. Soon after finishing his senten e for securities frauds, he was appointed as managing dir ctor of Agera Energy by Nordlicht in 2014. Id. 58. The Development of the Platinum-Beechwood ~cheme By 2012, several of Platinum's flagship in estments were not performing well - and "it was imperative that Nordlicht, Huberfeld, and Bodner find fresh sources of invJstment dollars. I Their options were limited, however, by their oJn checkered I reputations [involving their prior criminal hisJory and SEC I investigations]." Id. 55. For this reason, "iA early 2013, I I Nordlicht, Huberfeld, Bodner, and Levy. entered into a conspiracy with Feuer, Taylor, and Beechwood Ca~ital . to establish a reinsurance company, Beechwood Re, lnd to use it as I a vehicle to fraudulently induce insurers to entrust funds to I Beechwood through reinsurance agreements or other contractual arrangements." Id. 63. i Beechwood and Platinum had shared management and control, and were in fact integrated: Beechwood initial~y operated out of Platinum's offices, various individuals mainta{ned email I accounts with both Beechwood and Platinum Part1ers, Platinum employees with no actual role at Beechwood partlicipated in I I Beechwood transactions, and many Beechwood emp~oyees were former 40 I or concurrent employees of, or deeply connected to, Platinum ( ~ , Nordlicht, Levy, Slota, Ottensoser, Smalll Manela, Saks, Beren, and Kim). Id. j 103-09, 120-24. All of this occurred while Nordlicht, Huberfeld, and Bodner maintain~d control over Beechwood investments regardless of their titles. Id. 110-17. I Such tie between Platinum and Beechwood "w~s not disclosed I to SHIP or other insurers. 11 Id. 75. This scheme was furthered through "Beechwood's intentionally complex strudture to avoid j revealing 11 Nordlicht, Bodner, and Huberfeld's c9ntrol over the investments to SHIP and other clients. Id. 79i For instance, ownership of common shares in Beechwood Holding~ and BBL was I split among 22 trusts - most of which had nonde cript names such as Beechwood Trust Nos. 1-20 - 1 and one individual, in order to "deceive investors 11 and claim that Beechwood "wls a new and l independent venture owned by Feuer, Taylor and jevy. 11 Id. 85- 86. Also, the Platinum-Beechwood co-conspirator~ "constantly and consistently lied about and hid the Platinum-Be/echwood connection, including to the SEC, state regula~ory bodies, clients, potential clients, and business partnJrs. l 11 Id. 100. Beechwood's Misrepresentations to Induce SHIP to Enter into the IMAs I Starting with an email on April 10, 2014, I SHIP started j receiving "sales pitch 11 from Taylor, Feuer, an, other Beechwood 41 individuals in oral and written forms. Id. i 137l46. The April 10, 2014 document included statements such as "Blsis of Beechwood's Investment Strategy is Superior Risl Management Capabilities," which includes "[d]etailed analy is of underlying I forms of collateral," a "[f] ocus on appropriate ,deal controls," "active monitoring and due diligence," and "thiJd party I controls, independent valuation, compliance pro ram." Id. 1 <Ji 139. Furthermore, in various presentations, Levy "retterated I Beechwood's consistent themes of strong security and collateralization, conservative approach, and aiguaranteed I return for SHIP," and Beechwood "represented tolsHIP that the investments were over-secured by collateral that Beechwood could seize in the event that a loan or other investm~nt was not repaid, which would enable Beechwood to recover the value of any investment." Id. <J[<J[ 147, 151. During the course of these sales pitches, Platinum's controlling role was conce led. Id. <J[<J[ 144- 49. The Investment Management Agreements On May 22, 2014, June 13, 2014, and Janua • y 15, 2015, SHIP entered into three IMAs with BBIL, Bermuda Re, /and BAM I, all of which contained a similar set of provisions. IJ. <Ji 162. Each IMA contractually guaranteed to SHIP an annual invlstment return of ' I 5.85% of the net asset value of the assets in fhe relevant I 42 account, and in the event that there was a short~all, the Beechwood counterparty was required to make up t~e difference (with a slight modification for the IMA with BAM I). Id. 11 1681 69; 188-89; 207-08. On the other hand, the Beec~wood counterparty could retain investment returns ab1ve the 5.85% return as a performance fee. Id. 11 170, 181, 2q7-08. The IMAs obligated the Beechwood counterparties to compl~ with (1) Investment Policies and (2) SHIP's (except for the IMA!with BAM I) the 1 Beechwood counterparties' investment guidelines~ all of which I had certain collateralization and risk profile requirements for l investments using SHIP's funds. I Id. 11 176-77, :)_96-97, 214. The Beechwood counterparties failed to com~ly with their I own investment guidelines and SHIP's Investment/ Policies. Id. 1 178, 198, 215. For instance, prior to June 2014l Platinum caused j I BBIL to acquire the Black Elk notes at their fahe value, even though they were only worth a fraction of that ~mount. Id. i 180. Beechwood never "disclosed to SHIP the Pla'.tinum connection I I to other assets in which SHIP was invested, thjt Platinum was directing SHIP's investments, that Platinum an4 Beechwood insiders were personally benefiting from fees ~nd charges related to those investments, or the relatect-pJrty nature of I such transactions and the inherent conflicts o~ interest that such ties reflect." Id. 1 181. 43 Furthermore, to the extent the Receiver is ~eeking to hold SHIP liable for acts or omission taken in connec~ion with SHIP's status as a "Client Indemnified Party" as def ine;d in the IMAs, SHIP is entitled to indemnification under ParagJaph 18 of the IMAs. Id. I I 217-31. Numerous Related-Party Transactions Between May 2014 and June 2016, SHIP entruJted $270 million I in total to Beechwood pursuant to the IMAs, andlanother $50 million outside of the IMAs. Id. 138. These f,nds were placed into "investments that were highly speculative, /not adequately I secured, opaque, and not appropriately discloset to SHIP" and/or investments tied to Platinum that were "high-ri)k, complex, inadequately collateralized, and often distressrd." Id. 237. 233, Also, the investments in the Platinum fun~s and entities were not made at arm's length, involved "intentlonally inflated I and unsupportable valuations," and were not in ~he interests of SHIP. Id. LLC., id. id.; (3) 234. The examples include: 240; (2) Milberg Hamilton Capital dredit Facility, I Lumens Energy Group LLC, id.; -- Investment Group, id.; 257-67; (4) Chirla Horizon I (5) Kennedy Sobli Consultants, id.; Montsant Partners, LLC, id. id. (1) Go14en Gate Oil, 240, 249-256; (8) Agera Energy, id. I (?) (6) PEDEVCO Corp., 268-32J. Many loans made to these entities using SHIP's funds "carried irtificially high 44 I interest rates and were subject to fees and upfiont payments I that were not reasonably supported by the finan~ial condition or outlook of the obligors." Id. ! 244. I The SHIP TPC further describes the last thtlee transactions I above, as follows: j Montsant Partners, LLC. Two weeks after thJ IMA was signed, j BAM I purchased, on SHIP's behalf, an unsecured1term note issued ' 1 by Montsant - a wholly-owned subsidiary of PPVAI- in the principal amount of $35,500,000, pursuant to a Jote Purchase 1 Agreement ("Montsant NPA") dated January 30, 2015. Id. !! 249, j I 50. The Montsant NPA, which was not provided tojSHIP, specifies that Montsant "shall use the proceeds of the sate of the Notes to disburse to its parent company, PPVA." Id. Tfe note was never properly secured; after nine amendments to the r 1 ost-closing collateralization deadline, it was collateraliz, d by assets that also served as collateral for debt to be colleched under two other defaulted investments in which Beechwood had invested SHIP's policy reserves. Id. !! 252-53. SHIP hasl "not been paid back its principal and has not received any payment of interest II j on this note." Id. ! 255. Furthermore, in conjunction with the - - j Montsant NPA, Nordlicht and Kalter "jointly an~ severally guarantee[d] that the Obligations [of the Mont,ant NPA] will be I I I 45 j I paid strictly in accordance with the terms oft e Documents," none of which was paid. Id. <JI 256. PEDEVCO Corp. Funds deposited in the BAM I IMA account were used to acquire, on SHIP's behalf, debt interes sin PEDEVCO, a ' I highly speculative oil business, from other Beeqhwood entities. Id. <JI<JI 257-58. Not only was an investment of th~s type "entirely unsuitable" for SHIP given the speculative natu~e, but also this I investment occurred after the prices of oil andjnatural gas had declined by 50% between March 2014 and April 20~5, which meant PEDEVCO was financially struggling. Id. <JI<JI 258-11. In 2016, through a series of transactions, the PEDEVCO d~bt interests were restructured to subordinate SHIP's rights under Beechwood's rights for repayment. Id. <JI<JI or repayment 262-64. Eventually, PEDEVCO and SHIP collected only pennies on the dollar becau$e of the subordination of their rights for repayment. Id.1 ':II':II 266-67. ---i A~era Energy, LLC. In May and June 2014, A,era Energy issued a secured convertible note to Principal Jrowth Strategies LLC ("PSG"), an entity owned 55% by PPVA and 45%1 by PPCO. Id. I I 270-71. This note was shortly after amended to ~ecome 1 convertible to 95.01% of the equity interests i1 Agera Energy ("Convertible Note"). Id. <JI 271. In June 18, 20~4, Beechwood I entities, including Beechwood Re, acquired $51 9 million of .I 46 I <JI<JI senior secured debt issued by Agera Energy, whe{e $30 million came from SHIP's accounts. Id. 274. Agera Ene gy used these 1 proceeds to purchase the assets of Gla6ial Eneriy Holdings Inc., an electricity and natural gas retailer. Id. Ev~n though SHIP's money was used to finance this purchase and the transaction report on SHIP's account stated that SHIP's loa7 would receive 14% interest, SHIP was not paid any interest on jit. Id. 75. 274- In April 2015, Beechwood and Platinum enginjered a few similar asset acquisitions by Agera Energy, usi~g $14 million I I from SHIP's account without any interest paymenl to SHIP. Id. 277. In 2016 and 2017, "Platin=, Narain and Be,chwood orchestrated the sale and resale of [PGS's] Con7ertible Note to investors, including SHIP, in a series of trans,ctions that ultimately resulted in the transfer of $65 mill~on in cash and $105 million in other assets to PGS in order to 6rop up PPCO and PPVA." Id. 2 8 0. This was accomplished through Ja series of j complex transactions, one of which was Beechwood's "formation of AGH Parent to acquire the Convertible Note from PGS for $170 million" in June 2016. Id. 281-301. The $170 illion that AGH Parent paid came from Beechwood investors, including SHIP who invested $50 million outside of the IMAs into AdH Parent. Id. This $170 million valuation of the Convertible i t e ! 47 ' a result of negotiation between Narain and another Platijum entity - was grossly overvalued, because this Convertible Noe had been I valued at $15 million two months prior. Id. 2 4. These transactions were motivated by Platinum's need or cash to "satisfy demands for investor withdrawals, to s pport distressed investments, and to provide the appearance of tuable assets in Platinum funds." Id. I j Finally, around June 2017, Beechwood sold ~ts interests in various Beechwood assets for over $1 billion to aff iliates of 1 Eli Global. Id. 318. Beechwood's interests in ~GH Parent were I I included in the sale, but SHIP's were not, "the1eby allowing Beechwood, its insiders, and certain Platinum i1siders to cash out interests in the Agera enterprise for which ~hey had I I invested no funds and had taken no risk, while l~aving SHIP with nearly $70 million of funds tied up in illiquid interests of questionable worth in an entity now controlled b Eli Global." Id. Excessive Performance Fees Based on Overval ation I The co-conspirators also "grossly overvalue~ the investments in SHIP's portfolio, and intentional~y fed the independent valuation firms misleading information, tailored to achieve the desired result: inflated values." Id. 321. The goal was to create an overall annual return over the 5.85% 48 Id. 1 322. Over time, tens threshold to take performance fees. of millions in performance fees were collected Jased on its consistently false representations to SHIP, and !Beechwood never made any true-up payments to SHIP's account. Id.] 11 341-44. Beechwood often delegated valuation to Pla~inum's valuations, as the Golden Gate overvaluation exJmple shows. Id. I 11 333-35. Both the Platinum valuation committe1, in charge of "reviewing the values of all of PPVA's signific~nt investments," and the Platinum risk committee, in charge of "sJetting investment strategy for Platinum Management and !analyzing new ' investment opportunities," had a significant asset values reported by PPVA. on the net Id. 1 326. Continued Concealment Beechwood also prevented SHIP and other in~estors from l finding out about Beechwood's scheme and from ex~ricating their I funds from the "irresponsible and conflicted in~estments" at an earlier time. Id. 1 367. For instance, during tde SEC investigation that started on July 10, 2014, Norjdlicht "lied and told his attorneys that the companies had differ1ent General Counsels," which was false as Ottensoser was the General Counsel to both Platinum and Beechwood. Id. 368. Furt~ermore, numerous asset-protection schemes, including the use of ~rusts, were 49 I employed to "put their pilfered profits beyond tlhe reach of creditors like SHIP and enrich themselves." Id. 1 379-83. When CNO started confronting Beechwood aboit the relationship between Beechwood and Platinum and asked to divest : CNO's investments from "Platinum-controlled fun4s and entities," Beechwood feared that "CNO would catch onto the JPlatinum1 Beechwood Scheme." Id. 11 373-77. Then, Beechwo~d "diverted most if not all of those investments into SHIP's accdunt, saddling SHIP with all of the inappropriate Platinum-rel~ted I investments," as evidenced by an email sent on 4u1y 23, 2015. Id. 1 376. I I After Huberfeld was arrested in June 2016 and the media started exposing the Beechwood-Platinum connect~on, Beechwood sent an email letter to SHIP on July 26, 2016, Jalsely ' representing that, inter alia, (1) it was in thi process of severing all ties with Platinum; (2) "Beechwood :is currently owned 99% through family trusts of Messrs. FeueJ and Taylor; and (3) "no fund or institution of any kind has eve, had any ownership of Beechwood." Id. 11 386-87. Ten day~ after, Feuer and Taylor, through Feuer Family 2016 ACQ Trust land Taylor-Lau j Family 2016 ACQ Trust, acquired the equity ownedship interests I I of Nordlicht, Huberfeld, Bodner, and Levy in Be~chwood entities in exchange for secured promissory notes totali1g more than $20C 50 j million (the "August 5, 2016 Transactions"), whfch kept the economic interests of Nordlicht, Huberfeld, BodJer, and Levy intact. Id. <JI 389. Afterwards, Beechwood sold a portion of its assets to an affiliate of Eli Global, which tri~gered a change of control provision under the promissory notes agreement that made a material portion of the proceeds of the !ale of those assets to "flow[] directly into the hands of Noldlicht, Huberfeld, Bodner, and Levy." Id. <JI 396. Into the fall of 2016, SHIP continued to r~ceive assurances that its investments were "sound, secured by ap~ropriate collateral, and appropriately valued." Id. <JI 39{ By the time SHIP discovered the scheme and took mitigating ieasures in November 2016, "much of the damage already was done." Id. <JI 405- 07. IV. Overview of the Counts ] The FAC contains 19 counts, including, as lrelevant here: i • Claims against Beechwood Re, BRILLC, BAMj I, BAM II, Beechwood Holdings, BBIL, PBIHL, Beechwo~d Bermuda, I Fuzion, CNO, 40186 Advisors and John Doef 1-100 for RICO and RICO conspiracy (Counts 1-3), Sectio~ lO(b) of the Exchange Act and Rule l0b-5 (Count 4), a~ding and ' abetting breach of fiduciary duty (Count! 6), and aiding and abetting fraud (Count 7); 51 1 I l • I Claims against Feuer and Taylor for RICO1 and RICO I j conspiracy (Counts 1-3), Section l0(b) o~ the Exchange I Act and Rule l0b-5 (Count 4), Section 201 of the Exchange Act (Count 5), aiding and abetting breacr of fiduciary duty (Count 6), and aiding and abetting fraud (Count 7); • Claims against BAM Administrative and SH~P for RICO and I RICO conspiracy (Counts 1-3), Section 101(b) of the Exchange Act and Rule lOb-5 (Count 4), alding and abetting breach of fiduciary duty (Countl6), aiding and abetting fraud (Count 7), fraudulent con eyance (Counts I I 8-17), unjust enrichment (Count 18), an~ declaratory II I relief (Count 19); and I • Claims against BCLIC and WNIC for RICO a~d RICO 1 conspiracy (Counts 1-3), Section l0(b) of the Exchange I Act and Rule l0b-5 (Count 4), aiding an1 abetting breach of fiduciary duty (Count 6), aiding and ~betting fraud I (Count 7), fraudulent conveyance (Count~ 13-17), unjust I j enrichment (Count 18), and declaratory jelief (Count 19). The WNIC TPC contains 19 counts, includingi as relevant here: • 1 Claims against Huberfeld, Bodner, Feuer Family Trust, I I Taylor-Lau Family Trust, Beechwood Holdings, and 52 l Beechwood Trust Nos. 1-20 for RICO and R~CO conspiracy (Counts 1 and 2), aiding and abetting frlud (Count 7), I I aiding and abetting breach of fiduciary ctuty (Count 12), I contribution and indemnity (Count 18), ahd unjust I enrichment (Count 19); I I I • Claims against Slota and Ottensoser for rICO and RICO I conspiracy (Counts 1 and 2), fraudulent Qnducement and !I fraud (Count 3), aiding and abetting frafd (Count 7), aiding and abetting breach of fiduciary buty (Count 12), contribution and indemnity (Count 18), ahd unjust enrichment (Count 19); L I 1 • Claims against Kim, Saks, Narain, BAM I, 1 and BAM I I Administrative for RICO and RICO conspirrcy (Counts 1 and 2), fraudulent inducement and fraud (Coupt 3), aiding and abetting fraud (Count 7), breach of fid+iary duty (Count 11), aiding and abetting breach of fiduc~ary duty (Count i 12), contribution and indemnity (Count ~8), and unjust I j enrichment (Count 19); : • Claims against BBL, BBIL, and PBIHL for ~ICO and RICO conspiracy ( Counts 1 and 2) , fraudulent linducement and j fraud (Count 4), aiding and abetting fraud (Count 7), aiding and abetting breach of fiduciary lduty (Count 12), 1 I 53 I fraudulent conveyance (Counts 14-17), contribution and indemnity (Count 18), and unjust enrichmlnt (Count 19) ; • Claims against Lincoln for RICO and RICO conspiracy (Counts 1 and 2), fraudulent misrepresen ation (Count 5), negligent misrepresentation (Count 6), a~ding and I abetting fraud (Count 8), conspiracy to tommit fraud I (Count 9) , aiding and abetting breach ofj fiduciary duty I (Count 13), contribution and indemnity (fount 18), and unjust enrichment (Count 19); i I • Claims against Beechwood Re for breach I ot contract (Count I 10) and contribution and indemnity (Count 18); and I I • A claim against Feuer, Taylor, and Beechrood Capital for contribution and indemnity (Count 18) I The SHIP TPC contains 8 counts, including, Ias relevant here: • Claims against BAM II, Beechwood Holdingls, BBL, PBIHL, I BAM Administrative, Beechwood Capital, B~M GP I, BAM GP II, MSD Administrative, N Management, Bofner, Cassidy, Feit, Fuchs, Huberfeld, Kim, Michael Nor~licht, I Ottensoser, Saks, Slota, and Steinberg f!or aiding and I abetting fraud (Count 1), aiding and abeitting breach of fiduciary duty (Count 2), civil conspirJcy (Count 5), and 54 unjust enrichment • (Count 7); Claims against Feuer Family Trust, Taylo,-Lau Family Trust, Beechwood Trust Nos. 1-20, BRILLC Series A-I, Lawrence Partners, LLC, Monsey Equities, LLC, Whitestar LLC, Whitestar LLC II, and Whitestar LLCj III for aiding and abetting fraud I (Count 3), aiding and; abetting breach of fiduciary duty (Count 4), civil conspkracy (Count 5), and unjust enrichment • (Count 7); j Claims against Beechwood Global Distribu~ion Trust, Feuer Family 2016 ACQ Trust, and Taylor-Lau Fa6ily 2016 ACQ Trust for aiding and abetting fraud I (Counts 1 and 3), aiding and abetting breach of fiduciary ~uty (Counts 2 and 4), civil conspiracy (Count 5), and ~njust enrichment ' i (Count 7); and • A claim against Beechwood Re, BAM I, an1 BBIL for declaratory judgment for contract indemn~fication (Count 8) • Legal Standards I. Standard of Review In order to survive a motion to dismiss, plaintiff must I "state a claim to relief that is plausible on iis face." ' II I 55 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) . 2 claim has facial "~ plausibility when the plaintiff pleads factual ontent that allows the court to draw the reasonable inferen,e that the 'f defendant is liable for the misconduct alleged. Id. When adjudicating a motion to dismiss, the Court "acaept[s] all l factual allegations in the complaint and draw[s1 all reasonable inferences in the plaintiff's favor." ATSI Commq:'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 I (2d Cir. 20071. "Although Fed.R.Civ.P. 8 does not demand t,at a complaint be a model of clarity or exhaustively present tte facts alleged, it requires, at a minimum, that a complaint givj each defendant fair notice of what the plaintiff's claim is anf the ground upon to which it rests." Atuahene v. City of Hartford, 34 (2d Cir. 2001) F. App'x 33, (summary order). Where a comptaint "lump[s] all the defendants together in each claim and pfovid[es] no factual basis to distinguish their conduct, [it 1 fail [s] to satisfy this minimum standard." Id. However, "[t]he group pleading doctrine is an exception to the requirement that the fraudulent acts of eac defendant be I identified separately in the complaint." Elliott Assocs., L.P. I 111 internal Unless otherwise indicated, in quoting cases quotation marks, alterations, emphases, footnot!es, and citations are omitted. 2 56 I v. Hayes, 141 F. Supp. 2d 344, 354 (S.D.N.Y. 20~0). "The group pleading doctrine allows particular statements 6r omissions to be attributed to individual defendants even whed the exact source of those statements is unknown." Anwar vj Fairfield Greenwich Ltd., 728 F. Supp. 2d 372, 405 (S.D.N~Y. 2010). "Group I pleading allows plaintiffs only to connect defe~dants to statements - I scienter." Id. it does not also transitively conv~y I I at 406. ! "In order to invoke the group pleading doctrine against a particular defendant the complaint must allege lacts indicating I that the defendant was a corporate insider, witJ. direct involvement in day-to-day affairs, at the entity issuing the I I statement." In re Alstom SA, 406 F. Supp. 2d 433, 449 (S.D.N.Y. I 2005); cf. Luce v. Edelstein, 802 F.2d 49, 55 (¼ct Cir. 1986) ("[N]o specific connection between fraudulent rlpresentations in I the Offering Memorandum and particular defendanls is necessary I I where, as here, defendants are insiders or affiliates participating in the offer of the securities in, question."). Furthermore, "[w]hile it is settled that tre group pleading doctrine is an exception to the requirement that the fraudulent : acts of each defendant be identified separatel1 in the complaint, this does not imply that the group preading doctrine applies only to fraud claims; rather, it applie~ whenever Rule 57 9(b) applies, which is whenever the alleged con uct of defendants is fraudulent in nature." Schwartzco Enter rises LLC v. TMH Mgmt., LLC, 60 F. Supp. 3d 331, 350 (E.D~N.Y. 2014). For example, "[t]he group pleading doctrine applies ]to breach of fiduciary duty claims that are rooted in fraud.j Id. at 352-53. I II. I I Claim-Specific Legal Standards I A. Civil RICO Under 18 U.S.C. § 1962(c) Section 1962(c) of the Racketeering Influe,ced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 etlseq., makes it "unlawful for any person employed by or associa~ed with any enterprise engaged in, or the activities of whidh affect, f interstate or foreign commerce, to conduct or p~rticipate, directly or indirectly, in the conduct of such tnterprise's affairs through a pattern of racketeering activity." To plead I I any RICO violation, moreover, a plaintiff must allege that l I defendant engaged in at least two predicate act!' of "racketeering activity," where "racketeering ac ivity" is I defined to include a host of state and federal bffenses. See 18 1 U.S.C. §§ 1961(1), (5). In the present case, th~ FAC and the 1 WNIC TPC allege that relevant defendants engage~ in the predicate acts of mail and wire fraud under 18 1343. 58 b.s.c. §§ 1341, I In addition to alleging two predicate acts, 1 a RICO plaintiff must plead continuity and relationshiJ to establish i' that the racketeering activity constitutes a "p,ttern." Continuity, in turn, "is both a closed- and ope~-ended concept, referring either to a closed period of repeated]conduct, or to past conduct that by its nature projects into t~e future with a threat of repetition." H.J. Inc. v. Nw. Bell Tei. Co., 492 U.S. I 229, 241 (1989). Where, as here, the pattern is ]closed-ended, the Second Circuit has held that "predicate act1' occurring over less than a two-year period may not be deemed a pattern." First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 3t5 F.3d 159, 168 (2d Cir. 2004). I I B. Civil RICO Under 18 U.S.C. § 1962{a) I The RICO provision under 18 U.S.C. § 1962(~) makes it "unlawful for any person who has received any iicome derived, I directly or indirectly, from a pattern of rackefeering activity . to use or invest, directly or indirectly,:any part of such I income, or the proceeds of such income, in acqu~sition of any I interest in, or the establishment or operation of, any I enterprise which is engaged in, or the activitiks of which II affect, interstate or foreign commerce." C. Civil RICO Conspiracy Under 18 U.S. C. § 19 62 {d) 1 I l 59 I The RICO conspiracy provision under 18 u.sic. § 1962(d) makes it "unlawful for any person to conspire td violate any of the provisions of [18 U.S.C. § 1962(a)-(c)] ." I~ order to state a Section 1962(d) claim, "a plaintiff must plea~ as to each alleged co-conspirator: i (1) an agreement to joi1 the conspiracy; ' (2) the acts of [that] co-conspirator in furtheJance of the conspiracy; (3) that the co-conspirator knowing~y participated in the same." Odyssey Re (London) Ltd. v. StirlJng Cooke Brown Holdings Ltd., 85 F. Supp. 2d 282, 303 (S.D.N.Y.j 2000) (summarizing Hecht v. Commerce Clearing House, ~nc., 897 F.2d 21, 25 (2d Cir. 1990)). "[M]ere knowledge of a Jcheme, even coupled with personal benefit, is not enough to !impose liability for a RICO conspiracy." Nasik Breedin & Researdh Farm Ltd. v. Merck & Co., 165 F. Supp. 2d 514, 541 (S.D.N.Y. 2001). I D. Section lO(b) of the Exchange Act and Rule jlOb-5 Section l0(b) of the Securities Exchange Act, 15 U.S.C. § I 78a et seq., makes it "unlawful for any person, !directly or indirectly, by the use of any means or instrume9tality of interstate commerce or of the mails, or of any ,acility of any I national securities exchange [t]o use or ~mploy, in I connection with the purchase or sale of any secqrity . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission lmay prescribe as 60 l necessary or appropriate in the public interest ;or for the protection of investors." 15 U.S.C. § 78j. Impl~menting this I statutory provision, Rule l0b-5 states that "it jshall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate comm~rce, or of the mails or of any facility of any national securitjies exchange, (a) to employ any device, scheme, or artifice tli defraud, (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the Jtatements made, in the light of the circumstances under which tdey were made, not misleading, or (c) to engage in any act, pr1ctice or course of business which operates or would operate as~ fraud or deceit upon any person, in connection with the purchas~ or sale of any I security." 17 U.S.C. § 240.l0b-5. I To state a private civil claim under Sectidn l0(b) of the I I Exchange Act or Rule l0b-5, "plaintiff must proie (1) a material l misrepresentation (or omission); state of mind; security; ( 4) (2) scienter, ,-----jJ. e., a wrong (3) a connection with the purchaie or sale of a reliance . . ; ( 5) economic losq; and (6) loss I causation, i.e., a causal connection between thJ material misrepresentation and the loss." Dura Pharmaceu{icals, Inc. v. Broudo, 544 U.S. 336, 341-42 (2005). 61 In addition to the Rule 9(b) requirement a~plicable to all claims sounding in fraud, the heightened pleadi1g standards of I the Private Securities Litigation Reform Act ("~SLRA") require that plaintiff (1) "specify each statement alleJed to have been I misleading [and] the reason or reasons why the statement is misleading" and (2) "state with particularity £Jets giving rise to a strong inference that the defendant acted ~ith the requisite state of mind." Tellabs, Inc. v. MakoJ Issues & I Rights, Ltd., 551 U.S. 308, 321 (2007). Absent a fiduciary duty to speak, silence cannot support a claim of fraud. Rather, for '' liability to attach, there must be "an actual sJatement, one I ' that is either untrue outright or misleading by virtue of what I I it omits to state." In re Vivendi, S.A. Sec. Li~ig., 838 F.3d 223, 239 (2d Cir. 2016). E. Section 20(a) of the Securities Exchange Adt Section 20(a) of the Securities Exchange Adt states that "every person who, directly or indirectly, contJols any person I liable under any provision of this chapter or oi any rule or regulation thereunder shall also be liable joinily and severally with and to the same extent as such controlled ierson to any I person to whom such controlled person is liable]. unless the controlling person acted in good faith and did ~ot directly or II 62 I I indirectly induce the act or acts constituting 1he violation or cause of action." 15 U.S.C. § 78t. To state a claim under Section 20(a) of th Exchange Act, plaintiff must show (1) "a primary violation by the controlled person," (2) "control of the primary violator b~ the targeted defendant," and (3) "that the controlling perso~ was in some meaningful sense a culpable participant in the ~raud perpetrated I by the controlled person." SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1472 (2d Cir. 1996). F. Common Law Fraud Under here applicable New York law, "[t]o ,tate a cause of action for fraud, a plaintiff must allege a rep esentation of material fact, the falsity of the representatio, knowledge by the party making the representation that it was false when made, justifiable reliance by the plaintiff and resul ing injury." Kaufman v. Cohen, 760 N.Y.S.2d 157, 165 (1st De~'t 2003). Under Rule 9(b), furthermore, plaintiff must "(1) spedify the statements that the plaintiff contends were fra dulent, identify the speaker, (3) state where and when (2) he statements ' fraudulent." were made, and (4) explain why the statements w1re Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (id Cir. 2006). I "In cases where the alleged fraud consists of a4 omission and the plaintiff is unable to specify the time and place because no 63 act occurred, the complaint must still allege: 1) what the omissions were; he failure to disclose; (2) the person responsible for (3) the context of the omissions and he manner in which they misled the plaintiff, and (4) what d~fendant obtained through the fraud." Odyssey Re Brown Holdings Ltd., I ' (London) Ltd. v. Stir l'ing Coo k e 85 F. Supp. 2d 282, 293 I (S.ID.N. Y. 2000). I I In addition, pure omissions (as opposed to misleading statements) are actionable when defendant had a9 affirmative duty to disclose that information to plaintiff, Jsuch as when l defendant owes fiduciary duty to plaintiff. SNS jBank, N. V. v. Citibank, N.A., 777 N.Y.S. 2d 62, 66 (1st Dep't l2004). And even I in the absence of fiduciary duty, a duty to disdlose arises if i "one party possesses superior knowledge, not re,dily available to the other, and knows that the other is actinl on the basis of mistaken knowledge." Aetna Cas. & Sur. Co. v. Arliero Concrete Co., 404 F. 3d 566, 582 (2d Cir. 2005). G. Fraudulent Inducement i To state a claim for fraudulent inducement,; a plaintiff II "must allege a misrepresentation or material om~ssion on which I [it] relied that induced [it] to enter into an Jgreement." Barron Partners, LP v. LAB123, Inc., 593 F. Sup~. 2d 667, (S.D.N.Y. 2009). A fraudulent inducement claim is to the heightened pleading standard of Rule 9(b~. 64 670 also subject H. Aiding and Abetting Fraud "To establish liability for aiding and abe~ting fraud under New York law, the plaintiffs must show (1) the Jlxistence of a fraud; (2) the defendant's knowledge of the fra d; and (3) that l the defendant provided substantial assistance t advance the fraud's commission." Krys v. Pigott, 7 4 9 F. 3d 1 7, 12 7 ( 2d Cir. 2014). "Actual knowledge is required to impose l:iability on an aider and abettor under New York law," although "a complaint adequately alleges the knowledge element of an 1iding and I abetting claim when it pleads not constructive Jnowledge, but actual knowledge of the fraud as discerned from the surrounding circumstances." Id. I. Breach of Fiduciary Duty I Under here applicable New York law, the elements of a l breach of fiduciary duty claim are "(1) that a uiduciary duty I existed between plaintiff and defendant, (2) thJt defendant I breached that duty, and (3) damages as a result iof the breach." Meisel v. Grunberg, 651 F. Supp. 2d 98, 114 I (S.D.N.Y. 2009). "In I determining whether a fiduciary duty exists, th~ focus is on whether one person has reposed 'trust or confid nee in another' and whether the second person accepts the trust and confidence and 'thereby gains a resulting superiority or influence over the ' first.'" Indep. Asset Mgmt. LLC v. Zanger, 538 ~Supp. 2d 704, 65 709 (S.D.N.Y. 2008). In particular, where "defeldant had discretionary authority to manage [plaintiff's] investment accounts, it owed [plaintiff] a fiduciary duty good faith and fair dealing." Assured Guar. f the highest (UK) Ltd. v. J.P. I Morgan Inv. Mgmt. Inc., 915 N.Y.S.2d 7, 16 (1st ·Dep't 2010), aff'd, 962 N.E.2d 765 (N.Y. 2011). I ' J. Aiding and Abetting Breach of Fiduciary Duty "A claim for aiding and abetting a breach ff fiduciary duty requires, inter alia, that the defendant knowingly induced or I participated in the breach." Krys v. Butt, 486 ~- App'x 153, 157 (2d Cir. 2012) (summary order). "Although a plaintiff is not required to allege that the aider and abettor htd an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty." Id. I Generally "the same activity is alleged to constitute the primary violation underlying both claims" (i.e. claims of fraud and claims of aiding and abetting breach). Id.; see also Fraternit Fund Ltd. v. Beacon Hill Asset M mt. LLC, 479 F. Supp. 2d 349, 360 (S.D.N.Y. 2007). For this rea on, unless otherwise stated, these two claims are analyzed] together in this Opinion and Order for efficiency's sake. K. Fraudulent Misrepresentation 66 j To succeed on a theory of fraudulent misreJresentation under New York law, plaintiff must show that"(~) the defendant made a material false representation, to defraud the plaintiff thereby, I . (2) the djfendant intended (3) the plain~iff reasonably relied upon the representation, and (4) I the plaintiff suffered damage as a result of such reliance." II I I ' Bridgestone/Firestone, Inc. v. Recovery Credit Services, Inc., 98 F.3d 13, 19 (2d Cir. 1996). L. Negligent Misrepresentation Under New York law, "the elements of negli~ent misrepresentation are: ( 1) carelessness in impa~ting words; upon which others were expected to rely; ( 2) (3) and upon which they I I did act or failed to act; (4) to their damage. Most relevant, I I the action requires that (5) the declarant must !express the words directly, with knowledge or notice that tjey will be acted upon, to one to whom the declarant is bound by Jome relation or I duty of care." Dallas Aerospace, Inc. v. CIS Ai~ Corp., 352 F.3d 775, 788 1 (2d Cir. 2003). I j M. Civil. Conspiracy I Under New York law, civil conspiracy is no, an independent tort. Instead, "[a]ll that an allegation of conspiracy can accomplish is to connect nonactors, who otherwi,e might escape liability, with the acts of their co-conspirato,s." Burns 67 I 1 l Jackson Miller Summit & Spitzer v. Lindner, 94 (2nd Dep't 1982), aff'd, 451 N.E.2d 459 452 IN.Y.S.2d 80, 93- (N.Y~ 1983). "Where there is an underlying tort, the elements of ciiil conspiracy are: ( 1) the corrupt agreement between two or mqre persons, ( 2) I an overt act, (3) their intentional participati4n in the j furtherance of a plan or purpose, and (4) Pope v. Rice, 04-cv-4171 (DLC), the r~sulting damage." 2005 WL 613085, lat *13 (S.D.N.Y. j Mar. 14, 2005). Where a claim of civil conspira{y "involves a conspiracy to breach a fiduciary duty, all memb4rs of the I alleged conspiracy must independently owe a fidtciary duty to the plaintiff." Id. r l N. Actual Fraudulent Conveyance in Violation Debtor and Creditor Law§ 275 or 276 1 f New York Actual or constructive fraudulent conveyanre claims must satisfy Rule 9(b). ' Section 275 of the New York Debtor and Creuitor Law I ("NYDCL"), titled "Conveyances by a person aboul to incur I debts," states: "Every conveyance made and ever~ obligation I incurred without fair consideration when the petson making the I I conveyance or entering into the obligation inte~ds or believes j that he will incur debts beyond his ability to ray as they 1 mature, is fraudulent as to both present and fu ture creditors." NYDCL § 275. 68 Section 276 of the NYDCL, titled "Conveyan4e made with intent to defraud," states: "Every conveyance m~de and every obligation incurred with actual intent, as dist~nguished from intent presumed in law, to hinder, delay, or de~raud either present or future creditors, is fraudulent as t~ both present and future creditors." NYDCL § 276. The party a~serting an j intentional fraudulent transfer must "specify ttje property that was allegedly conveyed, the timing and frequenc~ of those allegedly fraudulent conveyances, [and] the conJideration paid." I United Feature Syndicate, Inc. v. Miller Featur,s Syndicate, Inc., 216 F. Supp. 2d 198, 221 (S.D.N.Y. 2002). Section 278 of the NYDCL, entitled "Rights of creditors whose claims have matured," states: 1. Where a conveyance or obligation i~ fraudulent as to a creditor, such creditor, when hi claim has matured, may, as against any person e~cept a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from s1ch a purchaser, 9 a. have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or b. disregard the conveyance and ttach or levy execution upon the property conv yed. 2. A purchaser who without actual fra dulent intent has given less than a fair considerat on for the conveyance or obligation, may retain the property or obligation as security for repayment. j 69 NYDCL § 278. I 0. Constructive Fraudulent Conveyance in Violjtion of New York Debtor and Creditor Law§ 273, 274, or 277 j Under New York law, certain transactions aJe deemed to operate as if they were fraudulent conveyances. lrn such circumstances, there is no requirement to show an intent to defraud. Englander Capital Corp v. Zises, 20131,Y. Misc. LEXIS 5282, *8 I (1st Dep't 2013). I Thus, Section 273 of the NYDCL, titled "Conveyances by insolvent," states: "Every conveyance made and ~very obligation incurred by a person who is or will be thereby tendered I insolvent is fraudulent as to creditors withoutjregard to his actual intent if the conveyance is made or the dbligation is I I incurred without a fair consideration." NYDCL §1273. Similarly, Section 274 of the NYDCL, tit1e4 "Conveyances by I persons in business," states: "Every conveyance made without fair consideration when the person making it is engaged or is about to engage in a business or transaction fof which the property remaining in his hands after the conve~ance is an I unreasonably small capital, is fraudulent as to 1creditors and as to other persons who become creditors during thi continuance of ' I such business or transaction without regard to his actual I intent." NYDCL § 274. 70 Finally, Section 277 of the NYDCL, titled !''Conveyance of partnership property," states: "Every conveyanc of partnership property and every partnership obligation incur I ed when the partnership is or will be thereby rendered insofvent, is fraudulent as to partnership creditors, if the ionveyance is made or obligation is incurred, b. To a p!rson not a partner without fair consideration to the partn rship as distinguished from consideration to the individJa1 partners." NYDCL § 277. P. Contribution and Indemnify "As a matter of law, there is no right to ¢ontribution under RICO." Dep't of Econ. Dev. v. Arthur Ande!sen & Co., 747 F. Supp. 922, 932 (S.D.N.Y. 1990); see also Fri~dman v. I Hartmann, 787 F. Supp. 411, 415, 417 (S.D.N.Y. i992). In the Second Circuit, indemnification is tot ordinarily available in a case where "the party seeking in~emnification has knowingly and willfully violated the federal seturities laws." I In re Residential Capital, LLC, 524 B.R 563, 591 (Bankr. : S.D.N.Y. 2015). However, contribution for violations of federal securities law is allowed among joint tortfeasoks. Stratton I Group, Ltd. v. Sprayregen, 466 F. Supp. 1180, lf85 197 9) . 71 (S.D.N.Y. 1 Under New York law, a party cannot "indemnl' fy itself against its own intentional torts," which inclu es intentional acts of fraud claims. Barbagallo v. Marcum, 11-Jv-1358 (JBW), 2012 WL 1664238, at *4 (E.D.N.Y. May 11, 2012); ]Austro v. Niagara Mohawk Power Corp., 487 NE. 2d 267, 267 (N.Y. 1985). However, a claim for contribution allows a tort jdefendant to seek apportionment of liability among joint tor~feasors equal to l the relative fault of each tortfeasor. D'Ambros·o v. City of New j York, 435 N.E.2d 366, 369 (N.Y. 1982); see also Dole v. Dow Chemical Company, 30 N.Y.2d 143, 143 (1972) (re~ognizing common I law contribution among all joint tortfeasors injNew York). Under Article 10 of the New York Debtor anl Creditor Law, "there is neither an express nor implied right ,f indemnification or contribution." Edward M. Fox & James Gadsden, Rights of Indemnification and Contribution Amon Persons Liable for Fraudulent Conveyances, 23 Seton Hall L. Re . 1600, 1605 ( 1993) . I Q. Unjust Enrichment To state a claim for unjust enrichment und~r New York law, I plaintiff must allege that "(1) defendant was ebriched, (2) at 'I I plaintiff's expense, and (3) equity and good cofscience militate against permitting defendant to retain what plaintiff is seeking I to recover." Briar atch Ltd., L.P v. Phoenix Pi tures, Inc., 373 72 F.3d 296, 306 (2d Cir. 2004). Relief for unjustienrichment is "available only in unusual situations when, thoJgh the defendant I has not breached a contract nor committed a rec4gnized tort, circumstances create an equitable obligation ruAning from the defendant to the plaintiff." Corsello v. VerizoJ New York, Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). Accordingly, i"[a]n unjust enrichment claim is not available where it simpiy duplicates, or I replaces, a conventional contract or tort claim~" Id. I R. The Wagoner Rule and the Doctrine of In Pa*i Delicto The Wagoner rule stands for the "well-settled proposition that a bankrupt corporation, and by extension, an entity that I stands in the corporation's shoes, lacks standing to assert I claims against third parties for defrauding the corporation I where the third parties assisted corporate mana}ers in committing the alleged fraud." Cobalt Multifamily Inv'rs I, LLC i v. Shapiro, 857 F. Supp. 2d 419, 425 (S.D.N.Y. ~012). The . I Wagoner rule applies not only to bankruptcy trustees, but also I to liquidators and court-appointed receivers. S1e Bullmore v. Ernst & Young Cayman Islands, 861 N.Y.S.2d 578, 1 586-87 (N.Y. Sup. Ct. 2008); Cobalt, 857 F. Supp. 2d at 425. The doctrine of in pari delicto is similar to the Wagoner rule. Instead of functioning as a prudential ru+e of standing, I however, the doctrine of in pari delicto is an ~ffirmative 73 l defense under New York law that "generally precludes a wrongdoer . from recovering from another wrongdoer." Jicard v. HSBC Bank PLC, 454 B.R. 25, 29 (S.D.N.Y. 2011), amen$ed sub nom. In re Bernard L. Madoff Inv. Sec. LLC, 11 Civ. 7631 (JSR), 2011 WL 3477177 (S.D.N.Y. Aug. 8, 2011), aff'd sub nom. I In re Bernard L. Madoff Inv. Sec. LLC, 721 F.3d 54 (2d Cir. 2013j , and aff'd sub nom. In re Bernard L. Madoff Inv. Sec. LLC, 721 1 F.3d 54 (2d Cir. 2013); see Kirschner v. KPMG LLP, 938 N.E.2d 941, 950 (N.Y. I 2010) ("The doctrine of in pari delicto mandate! that the courts will not intercede to resolve a dispute between two wrongdoers.") . 3 j S. Alter Ego During the oral argument held on August 15, 2 19 regarding the instant motions to dismiss, the Receiver submitted for the Court's consideration the decision in In re E.s~ Bankest, L.C., 04-17602, 2010 WL 2926023, at *3 (Bankr. S.D. Fa. July 23, 2010), which held that "[t]here is substantial' aw that imputation and in pari delicto do not apply to aI Court-appointed receiver." The Court declines to follow that ho~ding for two reasons. First, a holding by a bankruptcy courtlfor the Southern District of Florida applying Florida law has no precedential value for this Court in the present case. Secon, that holding I is inconsistent with the case law in this CircuQt. See, e.g., Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.~d 114, 118 (2d Cir. 1991) (holding that the doctrine of in parQ delicto applies to court-appointed bankruptcy trustees, noting that "a bankruptcy trustee . . . may only assert claims! held by the bankrupt corporation itself."); Cobalt Multifa~ily Inv'rs I, LLC v. Arden, 857 F. Supp. 2d 349, 362 (S.D.N.Y. 20[1) ("[T]he Wagoner rule applies to [an SEC] receiver becau~e he fulfills a role sufficiently analogous to that of a bankru~tcy trustee."). 3 I I 74 .Under New York law, "piercing the corpora~e veil requires a showing that: (1) the owners exercised completl domination of the corporation in respect to the transaction 6ttacked; and (2) that such domination was used to commit a frauJ or wrong I against the plaintiff which resulted in plaintlff's injury." I Morris v. New York State Dep't of Taxation & rln., 623 N.E.2d 1157, 1160-61 (N.Y. 1993). "While complete domi ation of the corporation is the key to piercing the corporat veil, especially when the owners use the corporation as a mere device to further their personal rather than 1he corporate business, such domination, standing alone, showing is t t enough; some of a wrongful or unjust act toward plaintiff is required." Id. at 1161. "Typically, piercing a~alysis is used I to hold individuals liable for the actions of a;corporation they control. However, New York law recognizes 'revJrse' piercing, j which . of . seeks to hold a corporation account~ble for actions its shareholders." Am. 122 F.3d 130, 134 (2d Cir. Fuel Corp. v. I Utah Energy Dev. Co., 1997). Legal Analysis - FAC I. Common Argument - Whether the Receiver's C aims Are Barred by the Wagoner Rule and the Doctrine of In Pari Delicto Various FAC defendants argue that the Wa o er rule and the doctrine of in pari delicto bar the Receiver's 75 laims generally, because the PPCO entities were involved in muchjof the misconduct of which the FAC accuses these defen ants. See ECF No. 184, at 9; ECF No. 157, at 9-11; ECF No. 16, at 18; ECF No. 207, at 10. I According to the FAC, there are two types ?f events that I 1 affected the PPCO entities: (1) the ones that both harmed and benefited the PPCO entities, such as the overvaiuation of PPCO I assets starting from before 2013, which helped the PPCO entities sustain their business but also harmed the PPcolentities by causing excessive management fees, FAC l 101-0~, 186-87; and I (2) the ones that harmed but did not benefit PPtO, such as the 2015 and 2016 fraudulent conveyance transactions or the Black l Elk transaction that was for the "sole benefit bf the PPVA I Funds," id. 180, 225-58, 324(iii), 335(iii). I I As to the latter type of events, there is ~o wrongdoing on I ' the PPCO entities' part, so the Wagoner rule an? the doctrine of in pari delicto are not applicable. 4 Each and eJ,ery one of the Receiver's claims against the FAC defendants ha$ some basis in the 2015 and 2016 fraudulent conveyance transaclions, so none of • If, for some reason, the allegedly fraudulentlconduct by the are officers and controllers of the PPCO entities imputed to the PPCO entities, the adverse interest exception wpuld apply. See Kirschner v. KPMG LLP, 938 N.E.2d 941, 952 (N.Y~ 2010). 76 these claims should be categorically barred by the Wagoner rule and the doctrine of in pari delicto. As to the former type of event, the Wagone rule and the doctrine of in pari delicto may be applicable, o the Court looks to see if any exceptions apply. Under the adverse interest exception, the Wagoner rule and in pari delicto·doctrine will ' not apply where a corporate officer "totally abtndoned the corporation's interests and [is] acting entirelr for his own or another's purposes." Kirschner v. KPMG LLP, 938 N.E.2d 941, 947 1 I (N.Y. 2010). The adverse interest exception "cannot be invoked I merely because [the officer] has a conflict of interest or because he is not acting primarily for his printipal." Center v. Hampton Affiliates, Inc., 488 N.E.2d 828, 830 (t.Y- 1985). Indeed, New York law "reserves this most narrowlof exceptions I for those cases - outright theft or looting or $mbezzlement I where the insider's misconduct benefits only hiiself or a third l party; i.e., where the fraud is committed again?t a corporation rather than on its behalf." Kirschner, 938 N.E.1d, at 952. The 1 PPCO Funds benefited somewhat from the alleged tvervaluations, I 1 which helped maintain the fa9ade of financial v ability in the eyes of their creditors and investors and there y attracted additional capital from investors such as WNIC, BCLIC, and SHIP to solve the liquidity crisis the PPCO Funds faced at or before I 77 the end of 2013. See, e.g., FAC 100-07. Ther~fore, the adverse interest exception does not apply with espect to the former type of events. Nor does the insider exception apply with espect to the former type of events. Under the insider exception, "in pari delicto/Wagoner does not apply to the actions of fiduciaries who are insiders in the sense that they either are tn the board or in management, or in some other way control thelcorporation." In re Refco Inc. Sec. Litig., 07-md-1902 (JSR), OBtcv-3065 (JSR),08-cv-3086 (JSR), 08-cv-7416 (JSR), 08-cv-8267 1 (JSR), 2010 WL 6549830, at *16 (S.D.N.Y. Dec. 6, 2010), report and recommendation adopted in art, rejected in ar on other grounds sub nom. In re Refco Sec. Litig., 779 F. Supp. 2d 372 j (S.D.N.Y. 2011), aff'd sub nom. Krys v. Butt, 486 F. App'x 153 I I . (2d Cir. 2012); see also Glob. Crossing Estate representative v. Winnick, 04-cv-2558 Aug. 3, 2006) (GEL), 2006 WL 2212776, at f15 (S.D.N.Y. ("Courts have held that the Wagon~r and 'in pari I delicto' rules do not apply to claims against corporate insiders I I for breach of their fiduciary duties."). Nordlicht, Levy, and I the PPCO Portfolio Manager - who allegedly controlled, or owed fiduciary duties to, the PPCO entities- would qlalify as I I "insiders," but they are not defendants in the present FAC action. None of the FAC Beechwood Defendants 78 ven Taylor and l Feuer - are alleged to control or owe fiduciaryjduti~s to the I PPCO entities, and do not fit within the definition of "insiders" for the purpose of the insider exception. See In re I Madoff Sec., 987 F. Supp. 2d 311, 321 (S.D.N.Y.12013) (holding that insider exception is used "narrowly to all~w only for suit j [] against a fiduciary of the []corporation, not against third I parties who are alleged to have aided and abett$d the [] fraud, I short of control by the third party" over the ctrporation). In sum, to the extent that a portion of a ~iven claim is premised on the overvaluation of the PPCO asseti, the Wagoner rule and the doctrine of in pari delicto preclu~e such portion of the claim. However, no FAC claim is complete{y barred by the I Wagoner rule or the doctrine of in pari delicto1 5 II. Common Argument - Whether Receiver's RICO llaims Are Barred by the PSLRA l Section 107 of the PSLRA - also referred jo as the "RICO Amendment" - provides that "no person may reli upon any conduct ' that would have been actionable as fraud in thelpurchase or sale I of securities to establish a violation of sectibn 1962." 18 ! U.S.C. § 1964(c). The Receiver claims that her ~ICO claims may ' I In addition, "in pari delicto is not a defensd to a fraudulent conveyance suit." FIA Leveraged Fund Ltd. v. Gr1nt Thornton LLP, 150 A.D.3d 492, 497 (N.Y. App. Div. 2017) (citi~g In re Verestar, Inc., 343 B.R. 444, 480 n. 19 (Bankr. ;s.D.N.Y. 2006)). 5 79 not be dismissed because of the PSLRA "[u]nlessj and until this Court rules that the Receiver has alleged an actionable I securities fraud claim against at least one deffndant in connection with her RICO claim," ECF No. 256, al 17; but this I I argument is incorrect as a matter of law. In £aft, the RICO Amendment "bars any claim that is actionable a~ fraud in the • 1,' purchase or sale of securities, even in situat~ons where a i plaintiff lacks standing or is otherwise preclufed from asserting a valid claim under the securities l~ws." Zohar COO I 2003-1, Ltd. v. Patriarch Partners, LLC, 286 F.I Supp. 3d 643 (S.D.N.Y. 2017) 634, (emphasis in original); see also MLSMK Inv. 1 I Co. v. JP Morgan Chase & Co., 651 F.3d 268, 2771(2d Cir. 2011). l Further, the Receiver claims that the predtcate offenses of her RICO claims are not securities frauds, but father (1) "actions constituting aiding and abetting [Nordticht and others'] breach of fiduciary duty and fraud" an1 (2) l "participating in the structuring and consummat:]-ng of the I fraudulent I [December 2015 and March 2016 transaftions] ." Id. at l 18. The Court disagrees with this characterization. As the FAC I I Beechwood Defendants note, ECF No. 184, at 15, the FAC itself I alleges the following as predicate acts for thel Receiver's RICO claims: 1 transmit communications and documents which assisted 80 I I Nordlicht and his cohorts duty to the Platinum Fund [and] in perpetuating a creditors of the Platinum in their br~ach of fiduciary investors ahd creditors . . fraud on thb investors and Funds; [andl] actively participate in the structuri[g and consummation of [and transmit communi~ations and documents that facilitated] the fraudhlent conveyance transactions in or about December 2016 and March 2016 which saddled the PPCO Fund with lien~ on substantially all of its assets, and ~hat of its subsidiaries, without receiving fair consideration in return I l FAC i 283. The latter category consists entirelr of securities transactions: (1) the December 2015 transactionr consisted of "PPCO Master Fund issu[ing] a $15.5 million note," secured by substantially all of the assets of the MSA PPCO: Subsidiaries, to I I SHIP, where the money received from the note issuance was used to purchase Desert Hawk debt, id. i i 221-35; anr (2) the March 2016 transactions consisted of a sale of "addit~onal notes" by PPCO Master Fund in the amount of $52.5 million!, where the money received was either exchanged with Northstar de~ts or loaned out to PPVA which then purchased additional Northstar debt from SHIP, id. I <_![<JI 240-48. In addition, a large porti'on of the former l I category of predicate acts is based on the Dece~ber 2015 and I March 2016 transactions, as well as other secu~ities transactions involving the Black Elk interest. I I Once those securities transactions are ex9luded, the only remaining candidate for predicate acts for the kicO claims is I 81 I the "misrepresentation and overvaluation of the PPCO Funds' net I I asset value," which allowed Nordlicht and the PfCO Portfolio Manager to charge "millions of dollars of exceskive management and incentive fees" and left the PPCO Funds "calh poor." Id. ; -- ' 191, 324(i), 335(i). These actions also fail to1 qualify as predicate acts for the same reasons discussed ip' Trott. In an j almost identical scenario in Trott, this Court concluded that I I misstatements concerning the funds' net asset v~lue, which led I to "the attendant withdrawal of unearned fees,"j may be "less obviously integral to the purchase and sale of becurities," but when they were made "in substantial part to sus~ain defendants' Ponzi scheme," they are not "merely incidental ~r tangentially related to the sale of securities." Trott et all. v. Platinum Management (NY) LLC et al., 18-cv-10936 (JSR), ko19 WL 2569653, at *5 (S.D.N.Y. June 21, 2019); see also Picar4 v. Koh, Supp. 2d 392, 398 907 F. (S.D.N.Y. 2012). And, as the ~econd Circuit explained, "conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connecti~n with the I I purchase and sale of securities." MLSMK Inv. Co. v. JP Morgan Chase & Co., 651 F.3d 268, 277 n.1 (2d Cir. 201~) . 6 1 l 6 Alternatively, if and to the extent that the fICO claims are based on such predicate acts, they would be ba~red by the I 82 In sum, all predicate acts of the Receiverf s RICO claims are related to the purchase or sale of securities, and so the PSLRA bars the Receiver's RICO claims. Thereforr, the Court, in its "bottom-line" Order, dismissed all of the R~ceiver's RICO j claims. 7 III. ·t·ies Frau d I Common Argument - Whether the Receiver's Securi Claims Should Be Dismissed I I Wagoner rule and the doctrine of in pari delictf, as discussed above. 1 7 When the Court dismissed a claim in the FAC, jhe WNIC TPC, or the SHIP TPC in its "bottom-line" Order issued ~ugust 18, 2019, such dismissal was with prejudice, for the following reasons. I First, the parties had been on notice for many months - since the Court's Opinion and Order issued on Decembef 6, 2018 disposing of the motion to dismiss the complaint in the SHIP action - as to how this Court analyzed these mo~ions. Indeed, on and after December 6, 2018, the Court had issueti no less than four Opinions and Orders disposing close to 30 ~otions to dismiss in the SHIP and Trott actions. SHIP, obyiously, was a party to that process in the SHIP action; and most of the claims in the FAC, the WNIC TPC, and the SHIP TPC are ~imilar to those claims in the relevant complaints in the SHIP apd Trott actions. Second, the Receiver, WNIC, and SHIP have been ~n possession of relevant underlying documents for a substantial! period of time. The fact that they cannot put forth particulari~ed, specific allegations against respective defendants makeshit highly doubtful that granting them leave to replead wo 1 ld result in new versions of complaints that would cure the pleading failures discussed in this Opinion and Order. Third, because on March 8, 2019 WNIC, BCLIC, CNO, and 40186 Advisors had f~led the motions to dismiss the Receiver's original complaint, t~e Receiver had been on notice before filing the FAC on April 11, 2019 as to what kind of arguments the defendants would raise in'. attempting to 1 dismiss the FAC. ECF Nos. 58, 63. 83 Various defendants moved to dismiss the Receiver's Rule l0b-5 and Section 20(a) claims. See, e.g., ECF ko. 184, at 1719; ECF No. 157, at 14-19; ECF No. 207, at 17-1~; ECF No. 169, at 13-14. In its "bottom-line" Order, the Courtrgranted those motions, as the FAC fails to adequately plead t~e misrepresentation element in compliance with th~ Rule 9(b) and PSLRA heightened pleading standards. See also ECF No. 184, at I I I 17-19. 8 Basically, the FAC describes the relevar,it I misrepresentations in the following words: I II • In fact, it was clear at the time of Fhe transaction that the Desert Hawk debt was not wor~h the value it was ascribed by Nordlicht and SHIP. Whether the parties used a discounted cash flow a~proach, a comparable companies analysis or a pr~cedent transactions analysis, they knew the besert Hawk debt had an estimated fair market value th twas well below the value misrepresented by them i n t e SHIP Note transaction. [ FAC ':I[ 232] • The June 3, 2014 Secured Term Note wap also known to be worth well below the value ascribed to it by CNO Defendants and Nordlicht. Using a dis~ounted cash flow approach with proper adjustments mad~ to LC Energy's financial projections to reflect morej reasonable operating assumptions and a discount fate (cost of capital) more reflective of a development stage mining company, the LC Energy loan was not w:orth even close to par. . Thus, at the execution bf these 'Movants put forth other, independent grounds ~o dismiss the securities fraud claims in the FAC. See, e.g., ECF No. 157, at 18-20; ECF No. 184, at 17-19; ECF No. 157, at ~6-17; ECF No. 301, at 2. The Receiver argues against each of ~hese points. ECF No. 256, at 25-35; ECF No. 310. The Court does ~ot reach these issues, because it is sufficient to ground the ~ismissal on the FAC' s failure to adequately plead the misrepreslentation element. I j 84 l ' I securities purchases, BCLIC and WNIC kisrepresented that the purchase price was fair. [Idr 234] -l • The remaining $21.35 million received~' under the March NPA Notes was "loaned" by PPCO Master Fund to PPVA to allow it to purchase the remaining No thstar Indenture Debt from SHIP. However, no cash changed hands as the cash "loaned" to PPVA was directed tol SHIP. As before, at the execution of these securities purchases, SHIP and CNO Defendants misrepresented that the purchase price was fair. [Id. 238] j • [T]he Beechwood, CNO and SHIP Defendaµts were able to, and in fact, did engage in and employ, a plan, scheme and conspiracy to defraud PPCO Funds fn connection with the purchase and sale of the Purchased Securities, and did materially misrep~esent to the PPCO Funds that the true value of thel Purchased Securities was their par value as set forth in the 1 transaction documents for the PPCO Lofn Transactions and Securities Purchases, and knowingiy omitted or concealed that the true value of the Purchased Securities was only a fraction of par]' value. [Id. 311] I Generally, to meet the Rule 9(b) and PSLRA pleading standards, more specificity is required than th~ broad and I group-pled allegations quoted above. 9 Other tha1 the fourth j 9 In addition, the first excerpted paragraph su{fers from the fact that it is unclear who "them" is. One poss~ble reading is that "them" refer to Nordlicht and SHIP. Anothe~ possible reading is that "them" is referring to the parties to the Desk Hawk debt purchase. A third reading is that "th~m" refers to those present at the earlier note issuance. Thel fact that the Court has to speculate on what "them" refers toj underscore a problem with this type of broad and group-pled Fllegations. The second excerpted paragraph also suffer~ from ambiguity and raises a plausibility issue. The paragraph starts with the discussion of the knowledge of "CNO Defendants ~nd Nordlicht" but at the end concludes, "Thus, . BCLIC anti WNIC I 85 excerpt above (which is a conclusory statement relying on impermissible group pleading), the FAC needs to1make clear if each of the above misrepresentations is an affilmative, explicit statement or a silent omission. If the former, bach of the above excerpts fails to "specify the statements it cl~ims were false or misleading, give particulars as to the respect in which I I plaintiff contends the statements were frauduleht, state when and where the statements were made, and identify those responsible for the statements." Cosmas v. Hassett, 886 F.2d 8, 'I 11 (2d Cir. 1989). If the latter, the FAC fails! to explain why l there was a duty to disclose held by most of the defendants, who were not even parties to the transactions. Also~ if grounded on i omission, the above allegations fail to plead with I particularity, for instance, "the [entity] respbnsible for the j failure to disclose" and "the context of the om~ssions and the manner in which they misled the plaintiffs" Adl~r v. Berg Harmon l misrepresented that the purchase price was fair'.." FAC CJ{ 234. Putting aside the fact that the usage of "CNO D~fendants" relies on impermissible group pleading, the paragraph ~aises some plausibility issue as to why the knowledge of C~O Defendants and Nordlicht is suddenly attributed to BCLIC and W~IC without any additional explanation. Furthermore, there is~ gap in the allegations as to how WNIC and BCLIC misrepresert the price at the "execution of these securities purchases," Iwhen they were not even parties to the transaction. I The third excerpted paragraph relies on impermissible group pleading, lumping together six entities and failling the particularity requirement. I 86 Assocs., 816 F. Supp. 919, 924 (S.D.N.Y. 1993). To avoid dismissal for failing to plead th~ misrepresentation element, the Receiver argues ~n her opposition brief that the Second Circuit has found "decept~ve conduct in connection with the sale of securities to be im~lied misrepresentations under Section l0(b) and Rule! l0b-5 without the uttering of words." ECF No. 256, at 26. The! Receiver is referring to securities fraud claims based on sµbsections (a) and (c) of Rule l0b-5, but to rely on those sub ections rather than subsection (b) of Rule l0b-5, plaintiff mu t prove that defendant committed an inherently deceptive or manipulative act that is independent from any alleged misstatemebt or omission. l See, e.g., Lentell v. Merrill Lynch & Co., 396 F.3d 161, 177 (2d Cir. 2005) I (rejecting liability based on subsections (a) and (c) of Rule l0b-5, where the only basis for such cl~ims is alleged misrepresentations or omissions); see also In r~ Parmalat Sec. Litig., 376 F. Supp. 2d 472, 503 (S.D.N.Y. 2005) ("Subsections (a) and (c) are not a backdoor into liability for those who help I others make a false statement or omission in vi~lation of subsection (b) of Rule l0b-5."). For this reason, the Receiver cannot rely on subsections (a) and (c) of Rule hob-5, when the gravamen of her securities claims are misstateJents and I omissions regarding the true price of the asse~s PPCO Master I 87 Fund received, rather than any deceptive or mantpulative act committed by the relevant defendants. / ' I . In its."b~ttom-line" ~rder, the Court alsolgranted the motion to dismiss the Section 20(a) claims agaimst Feuer and Taylor, because no "primary violation by the co!trolled person" under Section l0(b) was found for the reasons siated above. SEC -- ' I v. First Jersey Sec., Inc., 101 F.3d 1450, 1472 (2d Cir. 1996) . 1 0 IV. 1I Common Argument - Whether the Receiver's U just Enrichment Claim Should Be Dismissed Under New York law, unjust enrichment clai~s are "available . unusua 1 situations . . h h j only in wen, tough the def~ndant has not breached a contract nor committed a recognized ort, circumstances create an equitable obligation ru ning from the 10 The Section 20(a) claims against Feuer and Ttlor fail for an independent reason that the FAC does not make a y particularized allegation tying them to the December 2015 and, arch 2016 transactions or any other allegedly fraudulent ~ecurities transactions. See, e.g., FAC 318 ("Beechwood, through Levy, 1 with the substantial assistance of Feuer and Ta~lor, ably assisted the Platinum Funds in perpetrating th~ fraud that the Platinum Funds' assets were worth significantl • more than in reality by entering into the transactions descrlibed above.") . As to the Section 20 (a) claim against CNO,, which is not in the FAC, the Receiver argues in her opposition nrief that the claim was omitted from the FAC because of a "scrivener's error." ECF No. 256, at 35 n.11. However, an oppositio~ brief to a motion to dismiss cannot cure the defect in th, FAC itself. But even if the Court had granted leave to replead and the Section 20(a) claim against CNO was properly stated in 1the FAC, it would have been dismissed for the same reason that tne Section 20(a) claims against Feuer and Taylor were dismissed.' 88 I defendant to the plaintiff." Co~sello v. VerizoA New York, Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). "An unjust elrichment claim is not available where it simply duplicates, or!replaces, a I conventional contract or tort claim." Id. In the present case, unjust enrichment claims are not completely duplicative of the contracts and toris claims, as they are framed as an alternative to the fraudutent conveyance claims. See FAC 418 ("If this Court determine~ that [certain I parts of the December 2015 and March 2016 translctions] are not I voidable under New York law," the Receiver requ sts the Court to 1I hold for the Receiver on the unjust enrichment J1aim.); ECF No. 169, at 25 n.23. Although not binding on this C~urt, various bankruptcy courts have refused to dismiss unjusi enrichment claims on the basis that they were duplicative lf fraudulent transfer claims, noting that "it is conceivablelthat the l plaintiff could recover under one theory but no! the other." In re Operations N.Y. LLC, 490 B.R. 84, 100 (Bankr: S.D.N.Y. 2013); I see also Silverman v. H.I.L. Assocs. Ltd., 387 f.R. 365, 412 I (Bankr. E.D.N.Y. 2008) ("While there can be no aoubt that the I Trustee would not be entitled to duplicative retief, there similarly is no doubt that at the pleadings stare, a plaintiff is not required to elect a single theory upon w ich to 1 I 89 I .1 . 1 proceed."). The Court chooses to follow this prircip e I articulated by bankruptcy courts. I i I However, while the FAC adequately pleads how BCLIC, WNIC, and SHIP may have been enriched through the DecJmber 2015 and I I March 2016 conveyance transactions, the FAC fai]s to adequately allege facts as to how BAM Administrative benefJted from the allegedly fraudulent transactions at issue. The 'efore, the Court dismisses the unjust enrichment claim against BM Administrative only. V. FAC Beechwood Defendants I Certain FAC Beechwood Defendants - Beechwood Re, BRILLC, I I BAM I, BAM II, Beechwood Holdings, BBIL, BBL, B~m Administrative, Feuer, and Taylor - moved to di miss all claims against them, except the fraudulent conveyance nd declaration relief claims. See ECF No. 184, at 3. With resp ct to the claim for aiding and abetting breach of fiduciary dut~, these moving defendants argue that the FAC fails to plead th~ elements of the claim with "sufficient particularity under Rul~ 9(b) ," by failing to allege, I for example, that "Feuer or ,Taylor had I knowledge concerning PPCO's net asset value, t~e [December 2015 and March 2016 transactions], or the Black Elk transaction." Id. at 23. 90 I The Receiver responds that the claims for jiding and abetting breach of fiduciary duty are subject ti the Rule B(a) pleading standard, not Rule 9(b), because those jclaims allege that Nordlicht and the PPCO Portfolio Manager bJeached their I duties of loyalty and good faith to the PPCO Futjds by causing I the PPCO Funds to enter into transactions that Jere detrimental i I to the PPCO Funds, which is not dependent on "a~y party having I committed fraud" or on "allegations of misreprelentations or I omissions." ECF No. 256, at 37. II The Receiver's argument to recharacterize the claims as not I rooted in any fraudulent conduct by Nordlicht afd the PPCO I Portfolio Manager is misplaced. The primary bre~ch by Nordlicht and the PPCO Portfolio Manager on which the aidtng and abetting claims are premised, according to the FAC, are:j (i) Systematically misrepresenting and overvaluing the PPCO Funds' net asset value for the purpose of, inter alia, paying certain select insiders bf the PPCO Funds unearned fees, resulting in the paymeht of, among other amounts, unearned management an~ professional fees believed to be tens, if not hundreds, of millions of unnecessary investments by the PPcb Funds in underwater investments; j (ii) Causing PPCO Master Fund's entr~ into [the 1 December 2015 and March 2016 fraudul1 nt conveyance transactions]; and (iii) Causing PPCO Master Fund to ma ea temporary purchase of an interest in Black Elk for the sole benefit of the PPVA Funds, which sub~equently resulted in a $24 million damages settlement against the 91 1 I I Receivership Estate by the bankruptcy trustee of Black Elk. I I FAC i 324. It is impossible not to read these ajlegations as grounded in fraud. In fact, the Receiver's atte]pt at such recharacterization is, frankly, disingenuous, in that the FAC i almost verbatim restates these three allegation, as the primary fraud upon which the claim for aiding and abett~ng fraud rests. Id. <JI 335. Under Rule 9(b), the aiding and abetting cjaims must be ' pled with particularity for each of the FAC Beedhwood I Defendants. Lumping them together as "BeechwoodiDefendants," I which involves 13 different Beechwood entities, would generally be considered insufficient to meet this standarb. See id. l <][<JI 41, 46, 49. Further, the claims against Beechwood Htldings and BAM II must be dismissed for the independent reason/ that there is not a single, particularized allegation againstj each of them. Similarly, the claims against BAM I and BRILLC ~ust be dismissed I as well, because the former is mentioned only ih one instance as i I a party to the IMA with SHIP, see id. <JI 165, a1d the latter is mentioned only in one instance as part of cert 'in transactions in February 2015, see id. <JI<][ 212-13. Neither a legation is related to the primary fraud and breach of fid ciary duty by I I Nordlicht and the PPCO Portfolio Manager excerpted above. I I 92 j In contrast, the FAC adequately alleges th1t BAM Administrative, Beechwood Re, BBIL, BBIHL, and JBL were involved in the December 2015 and March 2016 transaction, which are closely related to the primary fraud and breach of fiduciary duty by Nordlicht and the PPCO Portfolio Manage See, e.g., id. 230, 246. These entities were an integral patt of those I allegedly fraudulent transactions, and thus sub1tantial j assistance is adequately pled. Although less clear cut, the Court also fitds that the knowledge element of the aiding and abetting cl~ims is I sufficiently pled. Knowledge is attributed to B~M Administrative, Beechwood Re, BBIL, BBIHL, and bBL in the FAC in the following allegations: Knowing full well that a fraud was afpot, and that Nordlicht and Levy were breaching the~r fiduciary duties, the Beechwood Defendants strubtured, negotiated and implemented several trrnsactions to facilitate the fraud. . . . I The Beechwood Defendants, the SHIP Dejfendants and each of the CNO Defendants . . . had actual knowledge . . . that Nordlicht and the PPCO Portfoli~ Manager owed and breached their fiduciary duties to the PPCO Funds [and] breached those duties and . .J conduct by Nordlicht and the PPCO Portfolio Manager was fraudulent . . because (i) Nordlicht was hopelessly conflicted in each and every transac ion he negotiated and consummated with them (through B echwood) because he was both the Chief Investment Off'cer of the Platinum Funds while one of the majo ,ity stakeholders and decision-makers in Beechwood and (ii) the PPCO Portfolio Manager was directing the PCO Funds to 93 I enter into the PPCO Loan Transactions ~nd Securities Purchases, which were not intended to e in their best interests, but rather were structured olely to I benefit the Defendants. 1 Id. <:!!<:!I 179, 328, 337. Although the excerpts abovle rely on group pleading, the fact that these entities actively ~articipated in j I the allegedly fraudulent transactions that are qescribed in detail, combined with the latter excerpts above,! "give [s] rise I to an inference of knowledge" of the primary fr~ud and breach of I fiduciary duty. Krys v. Pigott, 749 F.3d 117, 119 (2d Cir. 2014). Thus, the Court, in its "bottom-line" or1er, granted the motion to dismiss the aiding and abetting claim~ against I Beechwood Holdings, BAM I, BAM II, and BRILLC and denied the I l motion to dismiss the aiding and abetting claim~ against BAM Administrative, Beechwood Re, BBIL, BBIHL, and ~BL. Lastly, the aiding and abetting claims agafnst Feuer and Taylor are not adequately pled, because the FACI does not make a I single particularized allegation against Feuer Ir 1 Taylor in connection with any of these problematic transabtions. For this reason, the aiding and abetting claims against ~euer and Taylor are dismissed. VI. SHIP and Fuzion In its "bottom-line" Order, the Court grartted the motion to I dismiss the aiding and abetting claims against SHIP and Fuzion I I 94 I for failing to satisfy Rule 9(b). First, the alltgations purporting to plead substantial assistance and k owledge rely I ' l yon 1mperm1ss1 . . 'bl e group p l eading. . exc l usive In rhe context of the December 2015 and March 2016 transactions, !or instance, it is alleged that "[t]he CNO and SHIP Defendants"~ which include CNO, 40186 Advisors, Fuzion, BCLIC, WNIC, and S~IP - actively negotiated and consummated the relevant transactjions, such as I I negotiating "the aggregate amounts to be loaned 1by them under the March NPA," "each of the March NPA Notes," 'the terms and conditions of Amended Security Agreement," and ~o forth. These I allegations rely on impermissible group pleadiny that does not satisfy Rule 9(b). FAC I 254. j Second, the only time knowledge is attributed to SHIP and Fuzion is - as SHIP and Fuzion correctly point iut, ECF No. 157, at 20-23 - when they are lumped together with mbst of the other I I defendants to have "had actual knowledge that t~e conduct by Nordlicht and the PPCO Portfolio Manager was frkudulent I [or] that Nordlicht and the PPCO Portfolio Mana6er owed and breached their fiduciary duties to the PPCO FuJds and breached I those duties." Id. 328, 337. Given that SHil and Fuzion were not parties to the December 2015 and March 201, transactions and that there are no non-conclusory allegations s~owing their 95 involvement in these transactions, 11 I one cannot conclude that the allegations "give rise to an inference of knowl~dge" of the primary fraud and breach of fiduciary duty. Kry~ v. Pigott, 749 l F.3d 117, 129 (2d Cir. 2014). I Lastly, the case for dismissing the aiding/and abetting claims against Fuzion is even stronger. Through6ut the FAC - as I SHIP and Fuzion correctly point out, ECF No. 1s7, at 14 - Fuzion is lumped together with SHIP as the "SHIP Defen'ants," and Fuzion is broadly mentioned as having "advised" SHIP. FAC 10, 11. The allegations lack particularity as t, 'l['I[ 7, what and how Fuzion specifically advised SHIP. Essentially, the FAC treats I I Fuzion and SHIP as interchangeable and identical, when they are I separate legal entities with different business functions. For these reasons, the aiding and abetting claims against SHIP and Fuzion are dismissed. VII. WNIC and BCLIC WNIC and BCLIC moved to dismiss the aiding and abetting I claims, the fraudulent conveyance claims, and t 1he declaratory I 11 In light of these two points, the Court is n0t persuaded that circumstantial evidence shows SHIP's and Fuzio~'s actual knowledge that, for instance, "Nordlicht both 9wned interests in Platinum and Beechwood while serving in a mana~ement capacity at various Platinum entities yet consummated a se ies of fraudulent transactions with PPCO Master Fund by which No dlicht openly failed to fulfill his fiduciary duties to PPCO/Master Fund." ECF No. 256, at 42-43. 96 relief claim against them. The motion is grantei only with respect to the aiding and abetting claims, for tJhe following reasons. 1 A. Aiding and Abetting Claims I The Court dismisses the aiding and abetting claims against WNIC and BCLIC for substantially the same reasons that it l dismissed those claims against SHIP and Fuzion. I B. Fraudulent Conveyance Claims 1. Whether the Receiver Has Standing th Bring I Fraudulent Conveyance Claims on Behalf of the NPA Guarantors and the MSA PPCO Subsidikries I I WNIC and BCLIC divide the fraudulent conveyance claims into two kinds of claims: (1) the claims based on thj transfers made by PPCO Master Fund, and (2) the claims based on the liens and I obligations granted by the NPA Guarantors and the MSA PPCO I Subsidiaries (collectively, the "PPCO Subsidiaries") as security I for PPCO Master Fund's issuance of notes in Dec~mber 2015 and March 2016. ECF No. 169, at 24-25; see also FACl~i 373, 381, 388, 397, 405, 411, 415. Then, WNIC and BCLIC argue that the i Receiver lacks standing to bring the fraudulentl conveyance claims under New York law to avoid the latter type of interests, lI I I 97 because she is not a receiver for a "creditor" the PPCO Subsidiaries. ECF No. 169, at 24-25.12 There are two problems with WNIC and BCLICjs argument. First, the Receiver brings the fraudulent conve ance claims to l avoid the liens on the PPCO Subsidiaries on behtlf of the receivership entities, not the PPCO Subsidiarie~.1 3 The I I fraudulent conveyance claims are brought pursua1t to the Receivership Order, which granted the Receiver ihe right to sue l for and collect all "Receivership Property," in~luding any security interests conveyed by the PPCO Subsidi~ries, even though the Receiver is not a receiver of the PPf.O Subsidiaries. ECF No. 256, at 57. 14 Pursuant to the Receivership Order, the 12 The parties do not dispute that the Receiver Ihas standing to bring the fraudulent conveyance claims with res~ect to the former type of interests, as those claims are brought on behalf of the PPCO Feeder Funds and PPCO Blocker Fund~ creditors to the transferor PPCO Master Fund. FAC §§ 66-75; ¢er No. 169, at 24-25; ECF No. 299, at 13-14; ECF No. 256, at 5f-55. 13 Therefore, WNIC and BCLIC's argument that thJ fraudulent I conveyance claims are brought on behalf of enti~ies outside the scope of the Receivership entities is incorrectJ. ECF No. 2 99, at 14. I I 14 Standing is "a limitation on the authority ot a federal court to exercise jurisdiction," it is properly addre~sed within the context of a Rule 12(b) (1) motion. Alliance fo~ Envt'l Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 8~ n.6 (2d Cir. 2006). And "[i] n resolving a motion to dismiss !for lack of subject matter jurisdiction under Rule 12 (b) (l)!, a district court . . may refer to evidence outside the nleadings." l 98 .ll . . Receiver has the "right to sue for and collect from third parties all Receivership Property," which includ s the guarantee interests granted by the PPCO Subsidiaries. ECF ro. 256, at 57. This is because "[e]ach of the [PPCO Subsidiarie~] is majority I I owned by PPCO Master Fund, with ultimate corporate authority I I belonging to PPCO Master Fund," and the "Receiv~rship Property" is defined as "all property interests of the Recjeivership I Entities, including, but not limited to, monies /· . claims, i rights and other assets, together with all . .I other income I I attributable thereto, of whatever kind, which tJe Receivership Entities own, possess, have a beneficial intere,t in, or control directly or indirectly." Id. Second, WNIC and BCLIC correctly state tha only a creditor of the PPCO Subsidiaries can bring these fraudu ent conveyance claims under New York law, yet incorrectly take a rigid and literal approach to the word "creditor," contra y to the established case law. ECF No. 169, at 24-25; ECF No. 299, at 14. i I In Eberhard v. Marcu, the case on which WNIC an~ BCLIC rely, the I Second Circuit addressed the effect of a receiv~rship's scope on I I a receiver's standing to bring a fraudulent conyeyance claim Makarova v. United States, 201 F.3d 110, 113 (2l Cir. 2000). Therefore, even though this piece of informatior' was presented outside the FAC, the Court considers this piece/ of information in order to make a standing determination. I I 99 l under NYDCL, starting with the following basic p~emise: "It is well settled that in order to set aside a fraudu~ent conveyance, one must be a creditor of the transferor; those lho are not injured by the transfer lack standing to challen!ge it." 530 F. 3d 122, 129 (2d Cir. 2008). Therefore, it held, "a ~eceiver's I standing to bring a fraudulent conveyance claim will turn on I ' whether he represents the transferor only or alJo represents a I creditor of the transferor." Id. at 133. 15 J 1 As to what the Eberhard court meant by "a dreditor of the transferor," "[m]any courts have reasoned that, lhen a receiver sues to recover funds improperly diverted from Jhe corporation l during a Ponzi scheme, the corporation is itse14 acting as a creditor, 11 I Cobalt Multifamily Inv'rs I, LLC v. 1rden, 46 F. Supp. 3d 357, 362 (S.D.N.Y. 2014). Indeed, Eberhard itself notes that, in Scholes - a Seventh Circuit case that ~berhard endorses 1 and that involved a Ponzi scheme - the receiver could bring fraudulent transfer claims on behalf of certain corporations I 15 In Eberhard, the "transferor was a Nordlicht~equivalent figure who allegedly committed fraud and directyd the entities he controlled in furtherance of the fraud scheme, and, unlike here and other cases that found a receiver's st~nding, a receiver was appointed with authority over the assets of that individual transferor only, and not the entities allegedly used by the transferor to commit his fraud. 530 F.3d~ at 133-35. Therefore, the Second Circuit found that the receiver lacked standing to bring fraudulent conveyance claims ~n behalf of the individual transferor only. Id. ] 11 100 l I that were technically transferors of the fraudulent conveyance at issue, because they were "zombies" controlled "completely" by the wrongdoer at issue, rendering such transfers "in essence, coerced." Eberhard, 530 F.3d at 132 (analyzing &choles v. Lehmann, 56 F.3d 750, 752-55 (7th Cir.1995)). 2. Whether NYDCL § 278(1) or Sharp Imm¥nizes BCLIC and WNIC from Liability WNIC and BCLIC claim that they were "merel subsequent transferees, with the [WNIC and BCLIC Reinsuran e Trusts] as the transferors" and that recapture was "clearly fo fair consideration" as they were exercising their sequred creditor I 1 rights to recapture not just the trust assets b t also all of the policyholder liabilities. ECF No. 169, at 2 Because a "fair consideration" was given for this subsequ nt transfer where WNIC and BCLIC were the transferees, WNIC and BCLIC argue that they cannot be liable as per NYDCL § 278(1 . However, WNIC I and BCLIC cannot raise the NYDCL § 278(1) defen!~ because they must show, as a matter of law, that the transac,ion was "for fair consideration without knowledge of the fraud at the time of 1 the purchase." NYDCL § 278(1). I Alternatively, BCLIC and WNIC argue that, even with WNIC ' I and BCLIC's knowledge of the underlying fraud, the holding from Sharp immunizes them from fraudulent conveyance/ liability. ECF 101 I I I No. 169, at 20-22. By way of background, in Shanp, the bankruptcy trustee sued State Street Bank and TJust Company I ("State Street") - which was a secured creditor iof Sharp International Corporation's ("Sharp") - alleginJ that State Street was aware of Sharp's involvement in corpJrate fraud but I ' nonetheless caused Sharp to borrow money from otther unsuspecting I creditors so that State Street would be repaid in its secured loan. In re Sharp Int'l. Corp., 403 F.3d. 43, 4~-49, 53 (2d Cir. I 2005). I Referencing Sharp, BCLIC and WNIC claim th4t under the Reinsurance Agreements, they were granted a "fiJst priority I security interest" on the BCLIC and WNIC Reinsu¼ance Trust '' assets. ECF No. 169, at 20-21. They claim that lt is "settled law that, in these very circumstances, a securer party foreclosing on its security interest cannot be ?eld liable under fraudulent transfer law, even if it is aware ofl its debtor's I I fraud and the fact that the foreclosure may harr the debtor's other creditors." Id. at 21-22 (emphasis in original) (referencing Sharp, 403 F. 3d. at 54-55 (holdingj that "the preferential repayment of pre-existing debts to some creditors does not constitute a fraudulent conveyance" ev!en if the subsequent transferee knew that the funds to re~ay it were I I "fraudulently obtained")). 102 I The Court holds that the instant case is di~tinguishable from Sharp. First, in Sharp, the defendant-credi~or was merely l . . . . aware o f th e f rau d b u t was no t ac t ive par t icipant i n t h e f rau d itself; in contrast, in the present case, WNIC a~d BCLIC are I alleged to have actively participated in the ini~ial conveyance I transactions by directing and influencing the pakties to engage I in the initial conveyance which allegedly did no1t involve fair value consideration. Second, Sharp notes that "[~]he decisive principle in this case is that a mere preferencJ between I creditors does not constitute bad faith." Id. a, 54. Here, the allegations in the FAC do not paint a picture that the December I 2015 and March 2016 transactions involved mere Jreference issue ' ! among creditor; rather, the allegations paint a picture of "bad faith" on part of WNIC and BCLIC. Indeed, Sharp held that "bad faith" is not "knowledge on the part of the tra1sferee that the transferor is preferring him to other creditors1 and that it "does not ordinarily refer to the transferee's tnowledge of the [fraudulent] source of the debtor's monies whict the debtor obtained at the expense of other creditors." Id, at 54-55. WNIC I and BCLIC's alleged conduct goes far beyond what the Second Circuit describes as not constituting bad faith~ Given that the present case is clearly dishinguishable from I I In re Sharp, the Court views the alleged second step transfer of 103 assets from the BCLIC and WNIC Reinsurance Trus~s to BCLIC and WNIC as part of one integrated transaction in w1ich fraudulent transfers were made from PPCO Master Fund to, ajd for the benefit of, BCLIC and WNIC. See Orr v. Kinderhitl Corp., 991 F.2d 31, 35 (2d Cir. 1993) ("We will not turn a jblind eye to the reality that [two conveyances] constituted a siJgle integrated transaction."). This collapsing of the transact1ons is further supported by the fact that the Reinsurance Truss existed for the sole benefit of BCLIC and WNIC. See, e.g., adle Co. v. Newhouse, 74 Fed. App'x. 152, 153 (2d Cir. 2003)! ("Under New I York law, a creditor may recover money damages ~gainst parties I T who participate in the fraudulent transfer and tre either ~::::::::e:d::d~~e assets or beneficiaries of conveyance.") For these reasons, the Court holds that nerther NYDCL § 278(1) nor Sharp immunizes BCLIC and WNIC from fhe fraudulent conveyance claims. Thus, the motion to dismiss lhe fraudulent conveyance claims against WNIC and BCLIC based n NYDCL §§ 273, 274, 275, and 277 16 is denied. WNIC and BCLIC argue that the fraudulent con fyance claim based on NYDCL § 277(a) is not applicable to th~ present case, because this provision applies only to the conveyance of "partnership property" to a "partner" and becaure the FAC makes no allegation that BCLIC and WNIC were partners! of PPCO Master 16 104 3. Whether the Intent Element in NYDCL § 276 Is Adequately Pled The fraudulent conveyance claim based on NYPCL § 276 requires an additional analysis, because, unlikelthe claims based on NYDCL §§ 273, 274, 275, and 277, it req ires actual 1 I intent. See NYDCL § 276 ("Every conveyance made bnd every I obligation incurred with actual intent, as distihguished from intent presumed in law, to hinder, delay, or defr! aud either present or future creditors, is fraudulent as to both present and future creditors."). Because proving "[a] ctu]Jal intent [under NYDCL § 276] is difficult to establish through direct evidence," the intent may be "inferred from the facts and c~rcumstances surrounding the transfer." S.E.C. v. Smith, 45 (2d Cir. 2016) 646 Fed. App'x. 42, (summary order). These so-call,ed "badges of fraud" are facts and circumstances "so commonly !associated with fraudulent transfers that their presence gives Jise to an inference of intent." Sharp, 403 F.3d. at 56 (r9ferencing Wall St. Assocs. v. Brodsky, 257 A.D.2d 526 (1st Dep',t 1999)). Such l badges include: ( 1) the lack or inadequacy of consi1eration; ( 2) the l . h'ip family, friendship, or close assoc~ate re l ations between the parties; ( 3) the retentipn of possession, benefit, or use of the property in question; ( 4) the I I Fund. ECF No. 169, at 25. This argument is irre)evant, because the Receiver's claim is based on NYDCL § 277(b) not NYDCL § 277 (a). 105 financial condition of the party souJht to be charged both before and after the transaction! in question; (5) the existence or cumulative effect of alpattern or series of transactions or course of conduct a~ter the incurring of debt, onset of financial difficultifs, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transacti,ns under inquiry. Ford Motor Credit Co. LLC v. Orton-Bruce, 14-cv~5382 (KMK), 2017 WL 1093906, at *9 (S.D.N.Y. Mar. 22, 2017). The IFAC puts forth 'I factual allegations that indicate most of these lbadges of fraud, I I I see FAC §§ 225-53, and thus the Court finds tha1 actual intent is adequately pled. C. Declaratory Relief Claim I I By way of background, the following allega~ions from the FAC form the basis for the declaratory relief c~aim. In December 23, 2015, PPCO Master Fund issued the SHIP Note ]to SHIP pursuant to a December 2015 Master Security Agreement, wjere PPCO Master Fund and the PPCO Subsidiaries gave security in~erest in I substantially all of their assets to BAM Admini 1trative. FAC I 225-26. I I In January 20, 2016, SHIP loaned additional $2 million to I PPCO Master Fund pursuant to the First Amended ~HIP Note. Id. 236. In conjunction, PPCO Master Fund and the Pico Subsidiaries I entered into a Ratification Agreement, which ratified the I . December 2015 Master Security Agreement and reaffirmed the I I 106 l guarantee obligations of PPCO Master Fund and the PPCO Subsidiaries. Id. In connection with the March 2016 transactJon, PPCO Master Fund, BAM Administrative, as agent, and various !purchasers I I including SHIP, the Beechwood Reinsurance Trust~, entered into a note purchase agreement ("March NPA") that amen~ed and restated the First Amended SHIP Note. Id. 240. In conn~ction with the ! March NPA, PPCO Master Fund entered into the Amjnded Security Agreement, pursuant to which it granted its sec1rity interests to BAM Administrative, as agent, in substantially all of its 1 assets. Id. 241. However, "no subsidiaries of /PPCO Master Fund executed the Amended Security Agreement," and "ihe Amended Security Agreement expressly provides that it d d not amend or restate the December 2015 Security Agreement." d. Despite the foregoing, "BAM Administrative 242. as agent, asserts liens against all of the assets of PPCO Master Fund and the MSA PPCO Subsidiaries." Id. 424. Therefort, the FAC asks for this Court's declaratory judgment that thos~ asserted liens I "do not attach to the assets of the MSA PPCO Sufsidiaries," because "no MSA PPCO Subsidiaries executed the .}unended Security Agreement." Id. 426. WNIC and BCLIC were the only parties movinf to dismiss this claim. The only support they provide for the morion is that the 107 I I declaratory relief claim seeks "the exact same rrlief as [the Receiver's] fraudulent conveyance claims." ECF No. 169, at 25 n.23. The Court does not find the declaratory re~ief claim to be duplicative of the fraudulent conveyance claims, because the 1 former stems from the argument that the MSA PPC1 Subsidiaries never executed the Amended Security Agreement, wpereas the I latter concerns whether certain transactions tha:t MSA PPCO I I l ' Subsidiaries entered into - pursuant to the December 2015 I Security Agreement, the Ratification Agreement, Jand, if I executed, the Amended Security Agreement - were 1fraudulent. I Therefore, the Court denies the motion to dismi9is the declaratory relief claim. VIII. CNO Financial Group, Inc. and 40186 Adviso~s, Inc. I In its "bottom-line" Order, the Court dism·ssed the aiding and abetting claims against CNO and 40186 Advis ,rs for substantially similar reasons that it dismissed the aiding and abetting claims against SHIP and Fuzion. 17 Indeeb, the case for dismissing those claims against CNO and 40186 A~visors is I stronger than the case for dismissing those claims against SHIP, In addition, CNO and 40186 Advisors incorpora~e by reference the arguments by BCLIC and WNIC, so the Court's ruling regarding BCLIC and WNIC largely applies to CNO and 40186 Advisors to the extent relevant. ECF No. 174, at 3. 17 108 WNIC, or BCLIC, because CNO's and 40[86 Advisorj' role - captured only in conclusory allegations such as]that they "directed Beechwood" to enter into the allegedl j fraudulent conveyance transactions - is even further removdd from the I I allegedly fraudulent transactions at issue. See IFAC ':lI':lI 11, 248, 311. 18 18 CNO and 40186 Advisors argue that they are noy subject to personal jurisdiction of this Court, ECF No. 174, at 3-4, but the Court holds that personal jurisdiction existis. To establish specific personal jurisdiction over defendant, plaintiff must show that (1) jurisdiction is wa~ranted under the state's long-arm statue and (2) exercising jurisdiction comports with the Fourteenth Amendment's Due Process Clause. See, Sonera Holding B.V. v. Cukurova Holding AS., 750 F.3d 221, 224 (2d Cir. 2014). I The Court finds that New York's long-arm statute applies here, because, among other reasons, NYCPLR § 301(a) (2) allows jurisdiction over any non-domiciliary "who in pirson or through an agent . . . commits a tortious act within th! state," where the term "agent" is rather interpreted broadly. See Topps Co., Inc. v. Gerrit J. Verburg Co., 961 F. Supp. 88, 1 91 (S.D.N.Y. 1997). The FAC sufficiently shows that CNO's aglnts - WNIC and BCLIC - "acted in New York for the benefit of, ith the consent of, and under some control by the non-resident rincipal." ECF No. 256, at 60 (referencing Emerald Asset Advis~rs, LLC v. Schaffer, 895 F. Supp. 2d 418, 430 (E.D.N.Y. 20 2)). Indeed, CNO's conduct is often inseparable from its subsidiaries', given their intertwined structurr. See, e.g., FAC ':lI':lI 128, 129, 130. The allegations concerning CNf go beyond "bare allegation" that the parent "controlled or otherwise directed or materially participated in the operations" of i~s subsidiary, which was deemed by the Second Circuit to be no enough to invoke personal jurisdiction over a parent enti y. Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68,J 86 (2d Cir. 2018). 1 Meanwhile, 40186 Advisors worked closely wfth BCLIC and WNIC. See, e.g., FAC ':lI':lI 144, 203. Furthermore, ~lthough 109 IX. PB Investment Holdings, Ltd. j As a preliminary matter, PBIHL, the successbr-in-interest to BBIHL, argues that the Court lacks personal jrrisdiction over it. ECF No. 207, at 5-9. However, the Court holdi that specific personal jurisdiction exists over PBIHL based on (1) the payoff 1 I letters accompanying the March 2016 Note Purchas~ Agreement and i (2) the reasons stated in the contexts of the WN~C TPC and the SHIP TPC discussed below. 19 allegations against 40186 Advisors rely on a gro~p-pleading term such as "CNO Defendants," 40186 Advisors were pJrt of all transactions and conduct that BCLIC and WNIC we~e involved in, so the Court finds that specific jurisdiction e4ists over 40\86 Advisors. _I The due process prong focuses on the contaqt between defendant and the forum state, inquiring whethe~ the defendant "purposefully avail[ed] itself of the privilegejof conducting activities within the forum State, thus invokin:I the benefits and protections of its laws." Goodyear Dunlop T~res Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The CoJrt finds that this prong is met, as the "conduct by CNO and 4dl86 Advisors, in negotiating, structuring and consummating alleg dly fraudulent transactions governed by New York law and provi ing for New York court jurisdiction over disputes" is evidence o purposeful availing of the privilege of conducting activat sin New York. Id. at 63. Indeed, CNO and 40186 Advisors are a]leged to have been closely involved in transactions that invo~ved New York forum and New York law. I 19 "Where, as here, a district court rules on a ~otion under Rule 12(b) (2) on the basis of the complaint, the mot~on papers, and the supporting memoranda, without conducting anlevidentiary hearing or deferring its ruling until the recei~t of evidence at trial, the court must construe all relevant pledding allegations in the light most favorable to the plaintiff, aJsume credibility, and draw the most favorable inferedces for the existence of jurisdiction." Jones v. Boto Co., 498 F. Supp. 2d ' 110 According to the Receiver, pursuant to thesl payoff letters, PBIHL received "millions of dollars in ~roceeds of each of the note purchases through its related entity and agent BAM Administrative Service (having its primary place of business in New York)." ECF No. 256, at 64 (referencing FAC Because the forum for disputes arising from and 246-47). I he governing law of the March 2016 Note Purchase Agreement is New York, PBIHL is bound by the New York forum selection clause nder the closely related doctrine, which provides that "a, non-party to a contract may be subject to its forum selection c~ause if the non-party is so closely related to either the patties to the contract or the contract dispute itself that enforcement of the clause against the non-party is foreseeable." Dilmond v. Calaway, 18-cv-3238 (KPF), 2018 WL 4906256, a t ~ . Y . Oct. 9, 2018). In addition, the exercise of personal !jurisdiction over PBIHL comports with the due process requirebent because it purposefully availed itself of the privilege of conducting 822, 823 (E.D. Va. 2007) (citing Combs v. Bakke, 886 F.2d 673, 676 (4th Cir. 1989)). "Eventually personal juri~diction must be established by a preponderance of the evidence, leither at an evidentiary hearing or at trial. But where the ~ssue is addressed on affidavits, all allegations are co strued in the light most favorable to the plaintiff and doubt are resolved in the plaintiff's favor, notwithstanding a contro1erting presentation by the moving party." A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993). 111 I activities in New York through BAM I, its relate'd entity and agent, thus invoking the benefits and protection~ of New York lj law. Finally, the Court denies the motion to dis~iss the aiding I and abetting claims against PBIHL for substantiafly the same I reasons that it denied the motion to dismiss th1 aiding and abetting claims against those FAC Beechwood Defe'ndants involved in the December 2015 and March 2016 transactions. Legal Analysis - WNIC TPC ; I. Common Argument - Whether the RICO Claims Are Barred by the PSLRA ; I Various movants argue that the RICO claims ~gainst them in the WNIC TPC should be dismissed because of the !RICO Amendment. I ECF No. 188, at 3; ECF No. 154, at 6; ECF No. 194, at 1-2; ECF I No. 210, at 8; ECF No. 179, at 8-9; ECF No. 192, I at 7; ECF No. 1 I I 232, at 10-11. The Court agrees with these movants for I substantially the same reasons discussed above ~n the context of the FAC and in Senior Health Insurance Company df Pennsylvania v. Beechwood Re Ltd. et al., 18-cv-6658 (JSR) (~he "SHIP action"). See In re Platinum-Beechwood Litig., ~77 F. Supp. 3d !I 414, 424-26 (S.D.N.Y. 2019). ' In brief, Beechwood's inducement of WNIC a~d BCLIC into the Reinsurance Agreements is a kind of securities Jraud - just as 112 Beechwood's inducement of SHIP into the IMAs wa considered a kind of securities fraud in the SHIP action - b sed on SEC v. Zandford, 535 U.S. 813 (2002). In Zandford, the U.S. Supreme Court held that the respondent engaged in securities fraud "by selling his customer's securities and using the proceeds for his own benefit without the customer's knowledge," ecause the securities sales and respondent's fraudulent pr~ctices were not 1 independent events but rather coincided. Id. at 1815. Here, WNIC ! and BCLIC's funds were alleged to be obtained b~ Beechwood for I Platinum to inject capital into Platinum's inve~tments and I . , , I acquire securities, and such "conduct undertake9 to keep a securities fraud Ponzi scheme alive" are covered under the PSLRA. MLSMK Inv. Co v. JP Morgan Chase & Co., d51 F.3d 268, 277 n.11 (2d Cir. 2011); see also Picard v. Kohn, 9j7 F. Supp. 2d 392, 396 (S.D.N.Y. 2012) . 2 ° For I I this reason, thelCourt dismisses the RICO claims against all moving defendants. 1 20 Trying to distinguish the present case f r o m ~ and the SHIP action, WNIC and BCLIC argue that their en~ry into the Reinsurance Agreements is not a securities tran action, but a purely contractual transaction, whereby they "c ded liabilities to Beechwood and gave Beechwood $42 million in ash as a fee (referred to as a negative ceding commission) t take on those risks, plus approximately $550 million in asset - almost all cash - to satisfy statutory reserve requirement~ for the risks transferred." ECF No. 256, at 9. WNIC and BCLIC argue that this 1 first transaction should be distinguished from Beechwood and Platinum's subsequent usage of "the reinsurance trust funds to 113 II. Common Argument - Whether WNIC and BCLIC's !Claims Are Barred by the Doctrine of In Pari Delicto Huberfeld, Kim, and PBIHL argue that WNIC nd BCLIC's claims are barred by the in pari delicto doctri e, because WNIC and BCLIC are "alleged to have been knowing accimplices [in the FAC] in the same fraudulent conspiracy for whicq they now assert claims against [the cross-claim and third-party !defendants]." I ECF No. 154, at 9; see also ECF No. 192, at 12; IECF No. 202, at 11. I At this motion-to-dismiss stage, the Court !takes WNIC and ' BCLIC's allegations in the WNIC TPC to be true ~n assessing whether the claims in the WNIC TPC can withstan~ the motions to l dismiss. But the allegations in the FAC are irr~levant See, ' ~ , Gary/Chi. Int'l Airport Auth. v. Zaleski, 1144 F. Supp. 3d 1019, 1022 (N.D. Ind. 2015) (rejecting the view lthat "any defendant who files a third-party complaint wou~d necessarily be deemed to admit all the allegations of the orig~nal complaint"). And the WNIC TPC does not make any admission th~t WNIC and BCLIC I were accomplices in the FAC in the same fraudulent conspiracy. engaged in securities fraud." Id. at 10-11. But similar to the fact pattern in Zandford, "[t]his is not a case in which, after a lawful transaction had been consummated, a br1ker decided to steal the proceeds and did so . . . . Rather, relpondent's fraud coincided with the sales themselves." Zandford, 535 U.S. at 815. 114 1 Therefore, none of the claims in the WNIC TPC shbuld be I dismissed because of the doctrine of in pari del'cto. III. Common Argument - Whether WNIC and BCLIC's Indemnity Claims Should Be Dismissed ontribution and l The WNIC TPC asks that, if WNIC and BCLIC ake ultimately I found liable to the Receiver, all cross-claim anb third-party defendants must indemnify or contribute to WNIC ~nd BCLIC. WNIC TPC '.ll'.ll 919-22. Bodner moved to dismiss this clair against him, and Huberfeld, Saks, Ottensoser, PBIHL, Slota, a:nd the WNIC TPC I Beechwood Parties either incorporated Bodner's argument or made similar argument. ECF No. 188, at 13; ECF No. 1~4, at 7-8; ECF No. 17 9, at 21; ECF No. 194, at 2; ECF No. 202, lat 23; ECF No. I I 232, at 23, ECF No. 210, at 10. I Given that the Court already dismissed cer1ain claims against WNIC and BCLIC in the FAC, the only rel~vant claims I against WNIC and BCLIC for the purpose of these contribution and indemnity claims are the fraudulent conveyance, 1unj ust enrichment, and declaratory relief claims. j First, the Court dismisses WNIC and BCLIC'J contribution t and indemnity claims to the extent they are bas$d on the I Receiver's fraudulent conveyance claims againstlthem, because, under Article 10 of the New York Debtor and Cre~itor Law, "there I is neither an express nor implied right of inde~nification or 115 contribution." Edward M. Fox I & James Gadsden, R~ghts of Indemnification and Contribution Among Persons liable for Fraudulent Conveyances, 23 Seton Hall L. Rev. 1 00, 1605 (1993) (referencing NYDCL § 270). Second, WNIC and BCLIC's contribution and ~ndemnity claims to the extent they are based on the Receiver's Jnjust enrichment claims against them are dismissed, because the tIC TPC does not make any reference to the December 2015 and Marqh 2016 transactions, let alone allege that any of the cross-claim and third-party defendants in the WNIC TPC may be jJintly liable to ' the Receiver for liabilities arising out of sue transactions. Third, for substantially similar reasons, he Court dismisses WNIC and BCLIC's contribution and indemnity claims to the extent they are based on the declaratory relief claim against WNIC and BCLIC. I Putting these together, the Court grants tfe movants' motions - other than Beechwood Re's motion for the reasons I I · b ution . stated below - to dismiss WNIC and BCLIC ' s contfi an d indemnity claims. IV. Common Argument - Whether WNIC and BCLIC's]Unjust Enrichment Claims Should Be Dismissed Under New York law, "[a]n unjust enrichmenl claim is not available where it simply duplicates, or replacbs, a j 116 conventional contract or tort claim." Corsello v. Verizon New York, Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). Accordingly, "[t]he existence of a valid and enforceable writhen contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising ouf of the same subject matter." Clark-Fitz atrick, Inc. v. Long Island R. Co., 516 N.E.2d 190, 193 (N.Y. 1987). And although "c urts in this I Circuit routinely allow plaintiffs to plead such! claims in the alternative," this is so "when the validity or s~ope of the contract is difficult to determine." Nat'l Conveption Servs., L.L.C. v. A lied Underwriters Ca tive Risk Assukance Co., Inc., 239 F. Supp. 3d 761, 795 (S.D.N.Y. 2017). Here, there does not appear to be a dispute about the validity or scope of the Reinsurance Agreements. 1 Unlike in the I SHIP action - where $50 million was invested in Lgera Energy outside of the IMAs, which was the basis for fi1ding that some portion of the unjust enrichment claim in the sJIP action was I not dismissed - all of BCLIC and WNIC's funds a1 issue in the WNIC TPC were invested through the Reinsurance ~greements with I I l . Beechwood Re. Also, WNIC and BCLIC make numeroul torts c aims against various defendants, which also subsume~ large part of I WNIC and BCLIC's unjust enrichment claims. For ~hese reasons, all unjust enrichment claims in the WNIC TPC ar~ dismissed. 117 V. Beechwood Trust Nos. 7-14 Excluding the allegations impermissibly gr9uping Beechwood I Trust Nos. 7-14 with dozens of other defendants,! the WNIC TPC makes only the following relatively particulari~ed allegation I against Beechwood Trust Nos. 7-14: "The Platinum co-founders and 1 Levy created each of the Beechwood Trusts as an asset protection 1 I I vehicle for use in siphoning off and secreting ~he ill-gotten I gains from the Co-conspirators racketeering act~vities and I placing them beyond the reach of their creditor~.• WNIC TPC I 518. However, this allegation is too broad to sitisfy Rule 9(b), and so the Court dismisses the aiding and abettilng claims against Beechwood Trust Nos. 7-14. VI. David Bodner The WNIC TPC makes the following allegation~, among others, against Bodner: l (1) he "conducted the conspirac~'s day-to-day business via a secretary who relayed his directi~es to other Coconspirators," id. i 482; l (2) he was a party to~ July 30, 2015 email where Huberfeld and Bodner expressed thei~ concern about the Chief Executive Officer of CNO finding out that their trust I assets were invested in Platinum ("July 30, 201~ email"), id. i 1 118 472; 21 (3) he, along with Nordlicht and Huberfell, issued the "$100 million Demand Note" which was used to al egedly deceive WNIC and BCLIC into thinking that Beechwood Re capitalized, id. as adequately 548; and (4) "[t]he leaders ~f the lI 21 In their briefs and during the oral argument ield on August 15, 2019, the parties vigorously debated as to How this email chain should be interpreted. In that email chairt, on July 29, 2015, an account with the name "BodnerAngHuberf~ld" with the email address "bodnerang@gmail.com" sent an ema'l to David Bodner, stating "I'm really concerned that if E Banach from CNO Financial Group Finds out we invested beechwood [sic] money into platinum with its illiquid investments (si~ce it didn't exactly fit their investment objective) he won'1 trust us and he will take all of the aprox [sic] 50 mil, he has invsted [sic] in beachwood [sic] . . . That means beechwood would !either implode or not be able to function financialy [sic] and 1may have to be dissolved; Even though we did a cancel and corr~ct We weren't exactly honest with Ed about the original inves~ment or that beechwood and platinum really are integrated . ·I . I'm concerned, What should we do? [sic] I haven't dalled anybody back yet-I'm just trying to do som [sic] damage~'control right now. Kind Regards, Platinum Partners . . . . " 1 -cv-10936, ECF No. 285-3, Ex. 33. Then, on July 30, 2015, Davi Bodner responds to the sender of the July 29, 2015 email, writiJg only "hwerblowsky@platinumlp.com." Id. Bodner argues that the sender of July 29, 015 was Bodner's secretary Angela Albanese and that "hwerblowsky@platinumlp.com" is the email address of Platinum's in-house law~er Harvey Werblowsky. ECF No. 311, at 4-5, 6 n.2. In contnast, WNIC and BCLIC construe this email as a communication betjween Bodner and Huberfeld confessing to the alleged fraudulent ~cheme. In light of this factual dispute, the Court interp~ets t~is piec~ o~ evidence in favor of WNIC and BCLIC at this mot~on to dismiss stage, because it is not entirely clear who sen the July 29, 2015 email. On the one hand, it may be the seer tary based on the email address itself. On the other hand, th~s email was signed on behalf of Platinum Partners and invol~es discussions of matters that one would not necessarily expec~ a secretary to participate in. 119 conspiracy[, including Bodner,] met periodicall to steer the Co-conspirators after they agreed upon the terms of the conspiracy in March 2013" at least on the fifteen specific dates, id. 605. At least the third allegation, and possibl~ with the fourth allegation, adequately plead the substantial asJistance element of the aiding and abetting claims. Even when lum~ed with Nordlicht and Huberfeld, it cannot seriously be llargued that the third allegation fails as a result to give Bodner "fair notice of what the plaintiff's claim is and the ground rpon which it rests." Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001). As to the knowledge element of the aiding and abetting claims, the above allegations as a who~e - especially the July 30, 2015 email - are sufficient to give plausible inference that Bodner had knowledge of the prim fraud and breach of fiduciary duty. With respect to the J 30, 2015 email, as this Court noted during the oral argu~ent for Trott et I al. v. Platinum Management (NY) LLC et al., 18-~v-10936 (JSR) (the "Trott action") on March 7, 2019, this ema~l "presupposes I that the recipient knew about that [they] inves~ed Beechwood's money into Platinum with its illiquid investmen~ . . the language could fairly be read by any reasonable !fact finder as I ' conveying to Mr. Bodner what we already knew an 120 a concern that they now have if someone outside finds out." Transcript of Oral Argument dated March 7, 2019 starting at 10:30 a.m., Trott et al. v. Platinum Management (NY) LLC et al., 18-c -10936 ( S . D. N . Y . Mar . 7 , 2 0 1 9 ) , at 1 0 . For these reasons, the motion to dismiss th:e aiding and I I abetting claims against Bodner is denied. VII. Murray Huberfeld I Because the WNIC and BCLIC's allegations ag~inst Bodner and those against Huberfeld are substantially simil~r and because I I Huberfeld incorporates by reference Bodner' s arg1uments to I I I support his motion to dismiss, see ECF No. 154, ~t 1, the Court similarly denies the motion to dismiss the aidiJg and abetting l claims against Huberfeld. VIII. l ' Daniel Saks A. Fraudulent Inducement and Aiding and Abe ting Fraudulent Inducement Claims I Saks points out that the Reinsurance Agreejents were signed in February 2014, whereas, according to the WNI TPC, Saks began working at Beechwood in ~late 2014." ECF No. 17J, at 3, 14, 17 (referencing WNIC TPC l 504). For this reason, ~he Court grants the motion to dismiss the fraudulent inducementjclaim and the claim for aiding and abetting fraudulent induce ,ent against ' I Saks. ! 121 B. Breach of Fiduciary Duty Claim Saks argues that WNIC and BCLIC fail to sh w that Saks owed a fiduciary duty do not provide a single fact that shows that a "pe sonal ' relationship of trust and confidence" existed b~tween Saks and I WNIC and BCLIC. ECF No. 179, at 12. However, th~ Court finds ! that a reasonable factfinder could readily conc~ude that Saks I I owed fiduciary duty to WNIC and BCLIC. As the C0ief Investment Officer of Beechwood Re and BAM I from late 2014, he had I discretionary investment authority over the asset that WNIC and l BCLIC entrusted to Beechwood. When WNIC and BCLIC transferred $600 million to Beechwood Re, it is plausible tt infer that WNIC and BCLIC were reposing "trust or confidence" it Beechwood Re and its officers including Saks, with whom WNIC and BCLIC were interacting regularly. WNIC TPC 644; see also Indep. Asset I Mgmt. LLC v Zanger, 538 F. Supp. 2d 704, 709 (S~D.N.Y. 2008). Where "defendant had discretionary authority to manage [plaintiff's] investment accounts, it owe[s] [p· aintiff] a fiduciary duty of the highest good faith and fa'r dealing." Assured Guar. N.Y.S.2d 7, 16 I (UK) Ltd., v. J.P. Morgan Inv. Mgmt. Inc., 915 I (1 st Dep't 2010), aff'd, ' 962 N.Ei 2d 765 (N.Y. 2011). The WNIC TPC is replete with examples o~ Saks' personal communications with WNIC and BCLIC, asking the, to trust his ' 122 expertise and prudence. See, e.g., WNIC TPC I 64r. There is no doubt that, according to the allegations, his ro~e as a I I corporate official, combined with this conduct, rcreated a personal relationship of trust and confidence." ~rys v. Butt, I 486 F. App'x 153, 156 (2d Cir. 2012) (summary oraer). Furthermore, the breach element is sufficie~tly pled ! through the allegations that Saks engaged in a series of nonarm's-length transaction and concealed these tr~nsactions from WNIC and BCLIC. For instance, the WNIC TPC deta~ls Saks' involvement in investing WNIC and BCLIC's assetJ: "[I]n February 2015, Levy, Saks, Manela and others collaborated on the I investment of trust assets in China Horiion, a ~latinumcontrolled entity. In May 2015, Levy, Saks and Jordlicht, among others, collaborated in the execution of a waivllr to Agera Energy, another Platinum-controlled entity into which the Coconspirators invested trust assets. Starting inlDecember 2015 and extending into 2016, Levy collaborated with Saks, Manela and Nordlicht, among others, to make further investments of trust assets in ALS, another Platinum-controlled entity." WNIC TPC 634. Similarly, in his communications with WNicj and BCLIC, he is alleged to have concealed from WNIC and BCLIC m~terial information regarding the Platinum-Beechwood cohnection. Id. I 644. 123 For these reasons, the Court denies the motion to dismiss I the breach of fiduciary duty claim against Saks.] i C . Fraud Claim I As Saks argues, ECF No. 179, at 14, a frauiclaim based on omission must generally be accompanied by "thee istence of a I fiduciary relationship requiring disclosure of ~he unknown facts." Connaughton v. Chipotle Mexican Grill, nc., 23 N.Y.S.2d I , I 216, 220 (1st Dep't 2016). The Court determined above that Saks 1 owed a fiduciary duty to SHIP. Furthermore, thej existence of such a fiduciary relationship requiring disclos re is further supported by the special facts doctrine, becausl Saks "possess[ed] superior knowledge, not readily avfilable to [SHIP], and knows that [SHIP] is acting on the fasis of mistaken knowledge." Aetna Cas. F.3d 566, 582 & Sur. Co. v. Aniero Con~rete Co., 404 (2d Cir. 2005). With respect to pleading Saks' omissions, Fllegations j especially the ones in WNIC TPC t 644 - satisf~ Rule 9(b), because they (1) identify what the omissions wele, (2) identify Saks as the person who failed to disclose, context of the omissions, (3) !reveal the j (4) explain why the 9tatements were I fraudulent, and (5) Odyssey Re show what Saks obtained th,ough the fraud. (London) Ltd. v. Stirling Cooke Bro~n ·Holdings Ltd., 85 F. Supp. 2d 282, 293 (S.D.N.Y. 2000). As to,the last factor, 124 I Saks seems to hold a view that the pleading must! show that Saks personally obtained some pecuniary benefits from! the fraudulent scheme to satisfy Rule 9(b) ; 22 but the Court disdgrees. 'According I to the WNIC TPC, what Saks obtained through the ~raud was the preventing of WNIC and BCLIC from terminating t~eir Reinsurance Agreements. WNIC TPC 11 636, 652, 804. ' In addition, the Court finds that the inteJt to mislead is adequately pled, considering the following part~cularized allegations in the WNIC TPC: On January 26, 2015, when WNIC and BCLIC questioned the rudency of the investment of trust assets in JF Aircor and Trilliant, LLC, among other investme ts, Saks asked WNIC's and BCLIC's Eric Johnson to repo~e trust in Saks' wisdom in making those investments, but /concealed from Johnson (a) that Murray Huberfeld, who 90-founded Platinum and owned and controlled Beech~ood, had dictated that Beechwood Re, BAM and BAM Administ ative invest trust assets in JF Aircorp, and (b) tha the Trilliant investment was a shameless bribe direct d to the principal of SHIP and his family, which was designed to induce SHIP to invest with Beechwood; . I I 22 Saks claims that the WNIC TPC fails to allegJ "what [Saks] obtained through the fraud," because "[t]he mot~ve to maintain the appearance of corporate profitability, or the success of an investments, will naturally involve benefit to~ corporation, but does not 'entail concrete benefits,'" and J"[a]n increase to individual employment compensation is also ins fficient to satisfy the requirement that a concrete benefitj be alleged." ECF No. 179, at 15 (citing Chill v. Gen. Elec. Co.,/ 101 F.3d 263, 268 (2d Cir. 1996); Acito v. IMCERA Grp, Inc.,j47 F. 3d 47, 54 (2d Cir. 1995)). Also, Saks argues that "[t]he only compensation [Saks] received was employment compensation," hich was "not alleged to have been increased as to him by vi1tue of the alleged fraud." Id. at 16. 125 l On February 16, 2015, when WNIC and BCLid questioned a loan to Kennedy RH Holdings LLC, Saks an~ Kim again asked WNIC and BCLIC to rely on their expertis~, touting the safety of the loan because it was being ~'ade to an individual, Bernard Fuchs, who had a net worth in excess of $30 million. Saks and Kim concealed f om WNIC and BCLIC that Fuchs, a defendant in the PPV~ Action, was a crony of the three Platinum co-founders qnd was hip-deep in the Platinum Ponzi-esque scheme. I Id. i 644 (emphasis added). The fact that Saks' ~lleged omissions occurred when WNIC and BCLIC asked questions about the questionable investments adds more weight to ~hj,inference that Saks had fraudulent intent in making those omis ions. Lastly, the reliance and injury prong is aJequately pled I through the allegation that "WNIC and BCLIC rea~onably relied on the representations to their detriment, includidg by not I terminating the Reinsurance Agreements or takinf other actions that could have ameliorated the damages WNIC an' BCLIC incurred as a result of these misrepresentations." Id. i 636, 652, 804. D. Aiding and Abetting Claims There is no doubt that the allegations regjrding Saks' conduct and omissions discussed above - especia~ly his active I concealing of the Platinum-Beechwood connection and the allegedly problematic nature of those transactions - adequately plead substantial assistance. See, e.g., WNIC TPC , , 504, 579, ' 634, 644. In addition, Saks' knowledge of the primary fraud and I I breach of fiduciary duty is strongly inferable '.from the alleged 126 conduct and omissions, aided by the allegation tlat he was both a senior manager of Platinum and Chief Investmenr Officer of I Beechwood Re's and BAM I. Id. IX. 504. Hokyong (Stewart) Kim Because Saks and Kim are similarly situate~ according to the WNIC TPC, see, e.g., id. 644, the Court, f~r substantially I the same reasons that the Court denied Saks' motlon, denies the motion to dismiss the breach of fiduciary duty ~laim, the fraud claim, and the aiding and abetting claims again~t Kim. X. Lincoln International LLC ' I Generally, the allegations against Lincoln/are wellparticularized and specific, see WNIC TPC 69l-783, yet a few I issues merit more attention. I First, as to the reliance element of the misrepresentation claims, Lincoln argues that the disclaimer langlage in relevant valuation reports - such as that (1) the reportj were for Beechwood only and should not be relied by any ~hird party, (2) I "Lincoln has not made any independent valuation! or appraisal of the assets," and (3) Lincoln had "relied upon ahd assumed the I I accuracy and completeness of the financial inf9rmation supplied I to [Lincoln] and considered in [Lincoln's] ana~ysis" of fair I value, WNIC TPC 716, 716 n.35; Beechwood Engagement Letter, I ECF No. 187-2, Ex. B, at 2 - make WNIC and BCL1C's reliance on 127 those reports unjustified. ECF No. 182, at 18-19 The Court disagrees. Under New York law, "it is well estab, ished that a general, boilerplate disclaimer of a party's rep esentations l cannot defeat a claim for fraud." Dallas Aerospace, Inc. v. CIS I Air Corp., 352 F.3d 775, 785 (2d Cir. 2003). According to the WNIC TPC, the disclaimer~ nguage has been I rendered boilerplate-like by Lincoln's alleged qonduct. For instance, the disclaimer that Lincoln has "reli~d upon and assumed the accuracy and completeness of the fi1ancial information supplied to [Lincoln] and considered in [Lincoln's] I analysis" is an empty statement, when Lincoln allegedly knew II that the information it received might not have/been complete or accurate. ~ ' WNIC TPC 11 720, 722, 728, 730-f5; Disclaimer and Confidentiality Statement, ECF No. 187, Ex. le; see also P.T. I I Bank Cent. Asia v. ABN AMRO Bank N.V., 301 Ad. ~d 373, 378 (N.Y. I App. Div. 2003) (Disclaimer "does not preclude t' laintiff's claim based upon representations that [defendant] mad to plaintiff I I that [defendant] allegedly knew were false."). In addition, the disclaimer language that no parties other than /eechwood should rely is also meaningless, because Lincoln was allegedly aware of WNIC and BCLIC receiving and relying on Lincol 's valuations. WNIC TPC 752-59. For these reasons, Lincoln's disclaimer 128 reads like boilerplate, and thus the disclaimer defense against justifiable reliance cannot stand. 23 Second, the causation element of the misrepresentation claims is adequately pled through the allegation~ that WNIC and ' BCLIC did not terminate its relationship with Be~chwood when Lincoln did because of misrepresentations and oJissions in Lincoln's reports. See id. i i 768, 782, 832. In4eed, even in the I final report - issued after Lincoln had learned more about possible issues with working with Beechwood - L1ncoln does not identify the Platinum-Beechwood tie and other pfoblems Lincoln allegedly knew as the reasons for their downgrate of various valuations. Id. 768, 783. 1 Third, as to the intent element of the fraldulent misrepresentation claim, the Court finds that t e WNIC TPC has sufficiently "alleg(ed] facts to show that (Lin oln] had both motive and opportunity to commit fraud." Eterni Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 .3d 168, 187 (2d 23 In addition, Lincoln argues that reliance was unjustified because Section 597 of the Reinsurance Agreeme ts gave WNIC and BCLIC opportunity "to verify that the assets w re properly valued." ECF No. 182, at 18. However, as WNIC nd BCLIC correctly point out, precisely because Lincoln allegedly represented that it was independent, reviewed ubstantial data, and never disclosed that these were non-arm's ength transactions, WNIC and BCLIC did not exercise ~ts opportunity to object to the valuation reports. ECF No. 256, ~t 11. 129 Cir. 2004). The WNIC TPC makes plausible allegations that Lincoln had incentives to (1) "replace [Platinums previous valuation firm] for all of the Platinum funds," (2) "serve as a referral source for opportunities with other hed~e fund managers and/ or reinsurance firms," and (3) bolster "credentials I in the hedge fund and reinsurance communities." ~NIC TPC 51 700. Also, the WNIC TPC alleges "facts that constituJe strong circumstantial evidence of conscious . . reckJessness" by Lincoln in disregarding whether the information it received was true. Morgan Guar. Tr. Co. of N.Y., 375 F.3d at 187; see also, 1 l e.g., WNIC TPC 5151 723-25, 727. For these reason/, the Court :::::~ the motion to dismiss the fraudulent misrepresentation I Fourth, however, because the special relatfonship element of the negligent misrepresentation claim is not/ adequately pled, the Court dismisses the negligent misrepresentation claim l 1 against Lincoln. WNIC and BCLIC contend that a special I relationship existed between Lincoln, on the on~ hand, and BCLIC and WNIC, on the other, because Lincoln had "a~tual and specific knowledge that [WNIC and BCLIC were] receiving /and relying on its reports." ECF No. 256, at 18-19 (referenci~g WNIC TPC 5151 I 752-58). However, "New York strictly limits nedligent I misrepresentation claims to situations involvi~g actual privity 130 of contract between the parties or a relationshi I so close as to approach that of privity." In re Time Warner Inc. Sec. Liti ., 9 F.3d 259, 271 (2d Cir. 1993). In fact, plaintiff/ must show that the benefit to the non-party was the "end and ai~ of the transaction." Bayerische Landesbank v. Aladdin dapital Mgmt. LLC, 692 F.3d 42, 60 (2d Cir. 2012). Even thoug1 Lincoln ; allegedly knew that WNIC and BCLIC relied upon ~incoln's reports, Lincoln was engaged by the Beechwood ejtities pursuant I to engagement letters, where the end and aim of jthe engagement was to benefit Beechwood, not WNIC and BCLIC pei se. I Furthermore, the WNIC TPC does not allege that there was a direct contact between Lincoln and WNIC and BCLtC. Indeed, the absence of "direct contact" is an important facjor in finding that no special relationship exists. See Anschutz Corp. v. Merrill Lynch & Co., Inc., 690 F.3d 98, 115 (2d Cir. 2012). In addition, with respect to the aiding and abetting claims I against Lincoln, the parties dispute what type ~f knowledge is relevant for the purpose of pleading the knowle6ge element: WNIC and BCLIC argue that it is the knowledge of the overvaluation, ECF No. 255, at 20, and Lincoln argues that it /is the knowledge of the alleged Ponzi scheme, ECF No. 182, 22, dr of Platinum's I secret control of Beechwood, ECF No. 320, at 1d. The language of I Count Eight and Count Thirteen in the WNIC TPC indicates that 131 the aiding and abetting claims against Lincoln ate premised on, I I inter alia, the knowledge of overvaluation, the ~nowledge of non-arm's length nature of the transactions, and/ the knowledge of Platinum's control over Beechwood investments. WNIC TPC 845, 884. Given that the WNIC TPC sufficiently a~leges facts that establish the aiding and abetting claims ba~ed on the knowledge of overvaluation and the knowledge of ~on-arm's length nature of the transactions, 24 the Court denies tJe motion to dismiss the aiding and abetting claims against Jincoln. I I Lastly, the Court denies the motion to dis,iss the claim for civil conspiracy to commit fraud, because all elements of I the claim - (1) the "agreement" in the form of tngagement letters with Beechwood Re and BAM I, along with,an "informal" arrangement with Platinum, (2) an "overt act" i~ the form of Lincoln's issuance of allegedly defective valuation reports with fraudulent valuations, (3) Lincoln's allegedly fntentional participation in the furtherance of a plan or prrpose, and (4) I the "resulting damage" by WNIC and BCLIC in the; form of not I terminating the Reinsurance Agreements or taki~g other 1 24 There is no doubt that the WNIC TPC adequatejy pleads substantial assistance, because Lincoln's alle ed overvaluation of dozens of investments allowed Beechwood to ~raudulently withdraw millions in surplus while avoiding it 9 obligations to top-up the relevant trusts. See WNIC TPC 782. 132 ameliorative steps earlier, see generally WNIC TC~~ 691-783 are adequately pled. See Pope v. Rice, 04-cv-417 (DLC), 2005 WL 613085, at *13 (S.D.N.Y. Mar. 14, 2005). XI. David Ottensoser 1 Other than moving to dismiss the claims und/r RICO, RICO conspiracy, contribution and indemnity, and unju~t enrichment I all of which the Court has dismissed as discuss~ above Ottensoser did not move to dismiss the fraud cl im and the aiding and abetting claims against him, so thes claims remain. ECF No. 194, at 1-2. XII. PB Investment Holdings, Ltd. I I I As a threshold matter, PBIHL argues that tne Court does not I have personal jurisdiction over it. In addition 1 to the reasons discussed above in the context of the FAC and btlow in the context of the SHIP TPC, the Court finds that specific personal jurisdiction over PBIHL is established through ~he alter ego theory. "Under New York law, if a court has personal jurisdiction over a defendant, it may also exercise personal/jurisdiction over an alter ego defendant." Micro Fines Recycling ~wego, LLC v. Ferrex Eng'g, Ltd., 17-cv-1315 (LEK/DEP), 2019 tL 1762889, at *5 (N.D.N.Y. Apr. 22, 2019); see also S. New Englabd Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 138 (2d Cir. 204). Personal jurisdiction over an alter ego defendant can bJ, exercised where 133 the "allegedly controlled entity was a shell for!the allegedly controlling party; it is not necessary to show also that the shell was used to commit a fraud." Int'l Equity nvs. v. Opportunity Equity Partners, Ltd., 475 F. Supp. d 456, 459 I (S.D.N.Y. 2007); see also Marine Midland Bank N.-4\. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). The factors to cohsider in a I I jurisdictional alter-ego analysis include "whet1er there was a failure to observe corporate formalities, evide~ce of undercapitalization, intermingling of personal Jnd corporate funds, shared office space and phone numbers, any overlap in I I ownership and directors and whether the corpora~ion was used to perpetrate a wrongful act against the plaintiff1.• Cardell Fin. Corp v. Suchodolski Assocs., 09-cv-6148 (VM) (MND), 2012 U.S. , 1 I Dist. LEXIS 188295, at *94-95 (S.D.N.Y. July 17 2012). Based on these factors, the Court finds th, t the WNIC TPC adequately alleges that PBIHL is an alter ego f1r the relevant j I Platinum and Beechwood entities over which the jourt has personal jurisdiction. For instance, the WNIC T~C alleges overlap in management and ownership: "Platinum bwned and controlled Beechwood . . Platinum and Beec9lood were integrated, with their senior managers shuttliJg back and forth between Platinum and Beechwood," WNIC TPC ! 58 Taylor and Feuer were "[President and Chief Executive Off'cer, 134 I I respectively,] of Beechwood Re as well as the pr,ncipal[s] of most Beechwood entities, and Taylor was also thel.President of Beechwood Bermuda, including the predecessor-in-lnterest of PBIHL," id. 'TI'TI 483, 485, 623. The WNIC TPC alleg,es intermingling of corporate funds: Taylor made false representakions as to how 'I I the "entirety of Beechwood's capital" is availa8le to WNIC and BCLIC, id. 'TI 623; Platinum and Beechwood entitiJs intermingled funds with PBIHL, when Platinum funded Beechwood Bermuda (including PBIHL) with "$75 million of the borr~wing capacity under the $100 million Demand Note from Beechwo~d Re . to satisfy Bermuda insurance regulators," id. 'TI 62~. I Having determined that it has personal jur1sdiction over I PBIHL, the Court denies the motion to dismiss tJe fraudulent I conveyance claims against PBIHL, because the WNIC TPC plausibly and with particularity alleges facts establishiig each element of the fraudulent conveyance claims under the NtDCL. WNIC and I BCLIC allege that the "Demand Note Transfer occurred on or about May 16, 2014" and that the transfer was in the ~mount of $75 million. Id. 'TI 619. The WNIC TPC alleges that three defendants, l including PBIHL, were recipients of the Demand ' r· ote transfer, id. 'TI 618, but this grouping appears inevitabl~ as WNIC and I BCLIC would need to conduct discovery to see h,w the funds were apportioned among PBIHL and the two other Beec~wood Bermuda 135 I defendants. The transfer was designed for the pu~pose of, and j succeeded in, rendering Beechwood Re insolvent atd placing Beechwood Re's "capital" beyond the reach of WNIC and BCLIC, and there was no consideration for Beechwood Re's tJansfer of the I $75 million at issue. Id. 620. These alleged ~acts satisfy the I elements of the§ 275 claim (actual conveyance ~ade with the intent or belief of going insolvent), the§ 273 jclaim (constructive conveyance by becoming insolvent, !in the absence of fair consideration), and the§ 274 claim (co~structive I conveyance by becoming undercapitalized, in theJabsence of fair consideration) . With respect to the§ 276 claim (actual cotveyance made with intent to defraud), it is the transferor's intent to defraud - rather than the transferee's intent, s PBIHL argues - that matters, and the transferor Beechwood Re's intent is adequately pled as well. See In re Sharp Int'l.! Corp., 403 F.3d 43, 56 (2d Cir. 2005) (holding that a creditor ~ust show "intent I to defraud on the part of the transferor to pre~ail on a Section 276 claim") (emphasis added) . 25 In addition, PBIHL argues that the WNIC TPC lails to plead that WNIC and BCLIC each is a "creditor" with ianding to sue under New York's statute, ECF No. 202, at 21, ~ut the WNIC TPC is clear that WNIC and BCLIC are creditors of ~eechwood Re under the Reinsurance Agreements to avoid the Demand1Note transfer, see WNIC TPC §§ 890-92. 25 136 I Lastly, the allegations regarding the Demand Note transfer I discussed above and Taylor's January 14, 2015 em~il state the I fraud claim and the aiding and abetting claims. ,In an email dated January 14, 2015, Taylor, on behalf of alj Beechwood I I entities including the predecessor-in-interest ~o PBIHL, wrote I I that he and Feuer "consider the entirety of Beeqhwood's capital I I as available to support any liabilities within ~their] companies. . It has always been our intent to utilize all of [our] capital availability to support the liabijities of our I i businesses, first and foremost being the [WNIC and BCLIC] block." WNIC TPC ! 623. This statement by TayloJ is attributable I to PBIHL, as Taylor was alleged to be the Presi ent of PBIHL's predecessor-in-interest and that such email was "on behalf of all Beechwood companies." Id. (emphasis added). j And there is no allegation suggesting that Taylor was acting outside the scope I of his responsibility as President in making this statement. I I Once this statement is attributable to PBIHL, c~mbined with the I I Demand Note transfer, scienter is adequately pl~d. Lastly, for substantially similar reasons as discussed aboJ.e - i.e., based I on the Demand Note transfer discussed above an~ Taylor's January 14, 2015 email - the Court denies the motion tJ dismiss the aiding and abetting claims against PBIHL. XIII. Wi11 Slota 137 l The fraud claim and the aiding and abettinglclaims against Slota are premised on the following three allega 1 ions: search for a valuation firm, (2) ( 1) his Slota' s signing/ of brokerage agreements with Nomura and his efforts to look ~or additional prime brokers, and (3) the following email that ~e sent to Hodgdon in November 2013, in response to Hodgdo~ sending an email to Slota's Platinum email address regardi1g a Beechwood I matter: I I Please DO NOT email me at [Slota's Plqtinum address] 1 regarding Beechwood business. We've s~ t up separate email addresses for all staff involve, in Beechwood. Mine is [Slota's Beechwood email addr ss]. 1 I believe I've repeatedly made myselfjclear on this point. This is the third time I will fave been reminding you. I WNIC TPC 1i 494-95, 638. With respect to the first allegation, Slotr is alleged to be "the point person responsible for finding ane hiring a valuation firm that would make Beechwood's inve~tments in Platinum and Platinum-related entities appear l~gitimate to the ' 1 outside world." Id. 1 495. Other than conclusor,y statements such -- I I as "Slota and the Co-conspirators enticed Lincoln to participate I in this fraud," there is no specific allegatiod imputing I fraudulent intent on Slota's part. Id. Other tBan Slota signing the NDAs with Lincoln, id. 696, and passing 1n the first 138 1 j l Negative Assurance Letter issued by Lincoln to Wrlmington Trust on March 7, 2014, id. ! 759, which in and of the~selves are not I wrongful actions, there is no particularized al~egation that Slota pressured Lincoln to produce overvalue as~ets or that he ! was aware of the alleged overvaluations. I With respect to the second allegation, it ~s alleged that "the efforts to establish additional prime brok,rage arrangements were led by Slota, Levy and Taylor initially" and I that Levy and Slota "signed a series of eight agreements with Nomura, all dated January 31, 2014." Id. !! 638j 640. Not only do these allegations successfully plead the sub!tantial assistance element of the aiding and abetting claims against I Slota, but also they, together with the fact thkt Slota was the Chief Operating Officer, provide a reasonable ihference of I Slota's knowledge of the primary fraud and breabh of fiduciary duty - that Beechwood was promising incompatibll interests in the trust assets to two different parties. However, while the aiding and abetting clJims are I sufficiently pled, the fraud claim cannot be b1sed on this allegation, because there is no allegation as tjo what Slota represented to WNIC and BCLIC regarding the indompatible l interests. Also, the allegations do not suppor/ the contention that Slota had an affirmative duty to disclose 1 the truth 139 regarding incompatible security interests to WNI and BCLIC, so the fraud claim cannot be based on this omission either. As to the third allegation, in light of the surrounding circumstances, a reasonable factfinder may infer/ from the November 2013 email that Slota had the requisite! knowledge of the primary fraud and breach of fiduciary duty, ~specially given I I his role as "the enforcer within the integrated IPlatinumBeechwood conspiracy for maintaining the deception that /II Beechwood had no connection with Platinum." Id. 494. The aiding and abetting claims should move forward ~or this reason. However, the third allegation does not sta~e a fraud claim. I Aside from the email he sent to Hodgdon, at a N:vember 8, 2014 meeting, Slota is alleged to have misrepresente, himself as the Chief Operating Officer of Beechwood. Id. 577 However, I compared to Kim and Saks who were allegedly in flose contact with WNIC and BCLIC, see id. 644, the above allegation is the I only pled interaction that Slota had with WNIC and BCLIC. Also, Kim and Saks repeatedly made misrepresentations/ to WNIC and I I BCLIC to be proximate cause of their harm, id.,! but Slota' s email itself and his representation at the Nov~~ber 8 meeting do not sufficiently plead the justifiable relianc~ and resulting injury element of a fraud claim. 140 i I I I I For these reasons, the motion to dismiss the fraud claim against Slota is granted, 26 but the motion to disrl iss the aiding and abetting claims against Slota is denied. I XIV. WNIC TPC Beechwood Parties I The WNIC TPC Beechwood Parties consist of: feuer, the Feuer Family Trust, Taylor, the Taylor-Lau Family Trush, Beechwood ' Holdings, BAM I, BAM Administrative, BBL, BBIL, keechwood Re, ' I Narain, and Beechwood Capital. Not all of these ~ndividuals and entities moved to dismiss the claims against ther. ECF No. 210. A. Fraudulent Inducement Claim Against Dhrut Narain I Narain notes that he did not arrive at Beedhwood until January 2016, WNIC TPC 508, which was after tJe Reinsurance Agreements had been executed. ECF No. 210, at 11. For this reason, the fraudulent inducement claim against/Narain is dismissed. B. Fraud Claim Against Dhruv Narain The WNIC TPC makes the following particuiarized allegation against Narain: ' I 26 The fraudulent inducement claim against Slota is also dismissed because, as Slota correctly points ou~, there is "no action by Slota described in the [WNIC] TPC th~t could have caused [WNIC and BCLIC] to enter into the ReinJurance Agreements or refrain from terminating them." ECF No. 232, at 19. Simply put, "[t]here is no explanation of how the min'~al alleged communications by Slota . . induced [WNIC an BCLIC] to enter into the Reinsurance Agreements." ECF No. 313, at 7. 141 l On June 23, 2016, WNIC and BCLIC questdoned the 1 investment of trust assets Quest Liveiy and Atlantic Coast Life Insurance, wondering if there was any aspect to the transactions that were ot at arm'slength. Narain and Kim rushed to assu e WNIC and BCLIC to rely on their expertise that the t~ansactions were prudent and asked WNIC and BCLIC to cqnsent to the transactions. Of course, Narain knew ~irst hand that the Quest Livery transaction was not at arm's-length, as it was a sweetheart deal for one of Huberfeld's cronies. Narain did not disclose that ifact. Nor did Narain or Kim reveal that the Atlantic Coast Life Insurance deal was another bribe aimedI at inducing the insurer directed to invest its funds iith Beechwood. The bribe succeeded in accomplishing ~xactly that. WNIC TPC 644. Narain argues that the above in{estment actually occurred on February 9, 2016, and so there was ino nexus between alleged representation l . and [WNIC and BCLI~'s] conduct." l attaches as an ECF No. 210, at 15. To support this claim, Narain I exhibit to his motion papers the email exchange! between Eric Johnson of WNIC and BCLIC and Kim (but not Nara~n) on June 23, I 2016, which discuss the "sale of Quest Livery from WNIC Sub," not investment into Quest Livery. ECF No. 314-ll, I at 1 (emphasis added). Narain argues that "this document is cl~arly I incorporated into the [WNIC TPC] by reference blecause it I provides the basis for WNIC and BCLIC's fraud 91aim." ECF No. 312, at 9. 27 I Generally, "when a defendant attempts to coul(lter a plaintiff's Complaint with its own factual allegations andjexhibits, such allegations and exhibits are inappropriate for consideration by 27 142 However, although it is possible that this ocument was the only basis upon which WNIC and BCLIC drafted the above 644, allegations in WNIC TPC 1 it is also possible that WNIC and BCLIC relied on additional documents to draft th1s paragraph, as I evidenced by the fact that (1) involve Narain, while WNIC TPC I the emails in the;exhibit do not 644 identifies parain as a speaker, and (2) the emails in the exhibit mainly discuss Quest I Livery, whereas WNIC TPC 644 also discusses in~estment in Atlantic Coast Life Insurance. The Court cannotjconclude with certainty as to whether the above allegations a ,ainst Narain I relied exclusively on the emails in the exhibit./ The ref ore, the I Court leaves this question, as well as the question as to the veracity of the last paragraph in WNIC TPC 1 641, to a later stage in the litigation. I I the Court at the motion to dismiss stage." Reyei v. Cty. of Suffolk, 995 F. Supp. 2d 215, 220 (E.D.N.Y. 201~). According to the Second Circuit, "the harm to the plaintiff [hen a court considers material extraneous to a complaint is the lack o~ notice that the material may be considered." Ch mbers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) .; Accordingly, "[w] here plaintiff has actual notice of all the1 information in the movant's papers and has relied upon these documents in framing the complaint the necessity of transla~ing a Rule 12 (b) ( 6) motion into one under Rule 56 is large/ly dissipated." Cortec Industries, Inc. et al. v. :sum Holdin, L.P., 949 F.2d 42, 48 (2d Cir. 1991). Therefor, the Court considers this exhibit at this motion to dismiss stage. 143 ) Because the elements for the fraud claim agkinst Narain are I adequately pled (1) for substantially similar re~sons as the ones discussed in the context of the fraud clai+ against Saks and Kim and (2) based on his February 2016 email/ where he I . stated, "we all agree Platinum related stuff is 1egreg1ous," the I j Court denies the motion to dismiss the fraud clJim against Narain. See WNIC TPC 472, 548, 564, 643. C. Breach of Fiduciary Duty Claim Against Ohr v Narain Narain argues that the WNIC TPC rests simply on "Narain's I corporate position" and does not allege facts giving rise to the inference that Narain "had a fiduciary relation$hip with Narain personally.• ECF No. 210, at 18. This is not acfurate. First, according to the WNIC TPC, he was not just a rerular officer but a Chief Investment Officer who "had discretionary authority" to manage WNIC and BCLIC's investment accounts, th~reby owing "a fiduciary duty of the highest good faith and fa~r dealing.• Assured Guar. (UK) Ltd. v. J.P. Morgan Inv. Mg~t. Inc., 915 N.Y.S.2d 7, 16 (1st Dep't 2010), aff'd, 962 N.J.2d 765 (N.Y. 2011). Second, when his investor had a specifid question about one of the investments in June 23, 2016, he waJ alleged to have "rushed to assure [WNIC and BCLIC] to rely on jheir expertise," which a reasonable fact finder could infer as 144 sking for the iI investor's trust and confidence in his investment discretion and decision. WNIC TPC 1 644. Therefore, for substantially similar reaso1s as the ones discussed in the context of the fraud claim against Narain and the breach of fiduciary duty claims against Sak, and Kim above, the Court denies the motion to dismiss the brea h of fiduciary 1I duty claim against Narain. D. Motion to Dismiss or Compel WNIC and BCLIC to Arbitrate Their Breach of Contract Claim and Contrib~tion and Indemnity Claims Against Beechwood Re i Beechwood Re moved to dismiss, or compel atbitration on, 1 the breach of contract claim and the contributi[ n and indemnity claim against it. ECF No. 209. In its motion to compel arbitration under Section 4 of the Federal Arbi ration Act, Beechwood Re argues that the WNIC TPC "raise[s]I disputes arising under the broad scope of the arbitration proviskons contained in ! I the Reinsurance Agreements." ECF No. 210, at 18/. 28 On June 11, ! I 28 Beechwood Re argues that the current allegat~ons against Beechwood Re in the WNIC TPC are virtually identical to the allegations against Feuer and Taylor in a prev~ous case in front of the Court, where the Court granted a motion to compel arbitration. See Bankers Conseco Life Ins. Co. v. Feuer, 16-cv7646 (ER), 2018 WL 1353279, at *1 (S.D.N.Y. Ma~ 15, 2018). Furthermore, Beechwood Re argues that WNIC and :BCLIC, on the one hand, and Beechwood Re, on the other, entered ~nto valid agreements with broad arbitration provisions r quiring the 7 parties to arbitrate "all disputes or differen es between the Parties arising under or relating to" the Rein urance 145 2019, WNIC and BCLIC made a motion to quash sue~ motion by Beechwood Re, arguing that Beechwood Re cannot Jake such motion until posting additional security pursuant to t~e applicable New York and Indiana security statutes. ECF No. 244.J In a Memorandum Order dated July 10, 2019, this Court denied thjs motion by WNIC and BCLIC, on grounds that the arbitration pane~ should first decide whether WNIC and BCLIC were precluded frJm bringing their motion, given that the arbitration panel had prtviously awarded them some interim security which subsequently hfd been confirmed by this Court. ECF No. 333, at 12-13. ThereforeJ the Court has I not and will not rule on Beechwood Re's instant1motion until the I arbitration panel decides whether WNIC and BCLIC are precluded from bringing their motion to enforce the applibable New York and Indiana security statutes in quashing Beechlood Re's motion to dismiss or to compel arbitration. Legal Analysis I. SHIP TPC Common Argument - Whether SHIP' s Unjust Enrichment Claims I Should Be Dismissed Agreements. ECF No. 211-2, Ind. Re. Ins. § 10.~(a); ECF No. 2113, NY Re. Ins. § 10.l(a). Beechwood Re further !adds that, in fact, WNIC and BCLIC are arbitrating the exactj·same claims and issues with Beechwood Re in an ongoing arbitra ion before the American Arbitration Association, Bankers Cons co Life Ins. Co. et al. v. Beechwood Re Ltd. et al., AAA Case Nd. 01-16-00041 2510, and so this Court lacks jurisdiction ove this matter for now. ECF No. 210, at 3, 21. 146 Various movants argue that SHIP's unjust e1richment claims against them are subsumed by SHIP's breach of c ntract claims against the Beechwood counterparties to the IMA in the SHIP action and by other tort claims against them in the present action. ECF No. 279, at 13; ECF No. 262-2, at 6 7; ECF No. 284, I at 17; ECF No. 351, at 9-10; ECF No. 357, at 13~ The Court I I agrees. I The core of SHIP's unjust enrichment claim1 is that these defendants enriched themselves using the procee9s from unearned performance fees and other monies earned from tlansactions that favored Platinum or Beechwood over SHIP, most o which are governed by, or pursuant to, the terms of the I As. Because "[t]he existence of a valid and enforceable wriJ ten contract governing a particular subject matter ordinarilf precludes recovery in quasi contract for events arising oht of the same I subject matter," these claims are precluded. Cl~rk-Fitzpatrick, Inc. v. Long Island R. Co., 516 N.E.2d 190, 193 (N.Y. 1987) . 29 I 29 Alternatively, various moving cross-claim and third-party defendants correctly point out that the SHIP TP,C generally fails to allege with Rule 9(b) specificity that they jwere enriched at SHIP's expense. ECF No. 279, at 13; 18-cv-6658, ECF No. 452, at 10; ECF No.262-2, at 6-7; ECF No. 287, at 21; ~CF No. 284, at 17; ECF No. 346, at 12-14; ECF No. 347, at 11-~2; ECF No. 351, at 9; ECF No. 357, at 13. For instance, Ottensqser notes that he "was not an owner of any of the various Beechw1od Entities, just as he was not an owner of Platinum Management (NY) LLC, and the I I I 147 I A small portion of the unjust enrichment cl~ims that appears not to be governed by any valid and enfoiceable written iI contract concerns SHIP's $50 million investment 1n the June 2016 Agera transaction outside of the IMAs. SHIP TPC 232. However, the unjust enrichment claims based on the June 2cl16 Agera I transaction are not pled adequately with respectjto who were unjustly enriched, except in the case of Cassidy "Cassidy was slotted to receive, and did receive, interests ir AGH Parent worth in excess of $13 million through Starfish Capital, an I entity dominated and controlled by Cassidy, for no apparent consideration." Id. 1 308. In the SHIP action, akter the second - I of motions to dismiss, this Court has held that fhe unjust enrichment claim can proceed only against Feuer ~nd Taylor for their "significant ownership positions in" Ager~, but dismissed I the claim based on the $50 million investment iri Agera as to all I 1 other defendants therein for failing to specifylwho was enriched. See In re Platinum-Beechwood Litig., J77 F. Supp. 3d 414, 427 i (S.D.N.Y. 2019). For the same reason, the Court in its I I "bottom-line" Order dismissed the unjust enrichment claims I against all moving defendants other than Cassidr in this action SHIP TPC does not allege otherwise." ECF No. 27l, at 1. Michael Nordlicht argues that him holding a 95.01% equi~y interest in Agera Holdings does not prove that he received anything of value belonging to SHIP. ECF No. 283, at 3, 17. j 148 and also hereby dismisses the unjust enrichment !claim against Steinberg. II. 1 Common Argument - Whether SHIP's Civil Conl piracy Claims Should Be Dismissed The civil conspiracy claims, just like the aiding and abetting claims, seek to hold the co-conspiraton defendants secondarily liable for the primary torts commitJed by Beechwood and Platinum/Beechwood insiders. In the SHIP TPJ, the civil conspiracy claims are largely duplicative of thl aiding and abetting claims. See SHIP TPC I 445-53. Thereffre, if the aiding and abetting claims are not dismissed for a given defendant, the civil conspiracy claim against t~at defendant should be dismissed. See Loreley Fin. (Jersey) ro 3 Ltd. v. Wells Fargo Sec., LLC, 12-cv-3723 (RJS), 2016 W~ 5719749, at *8 (S.D.N.Y. Sept. 29, 2016) ("In cases in which Plaintiffs' aiding I . · 'h t h ' . · New an d b a etting c 1aims over 1 ap wit eir conspirafy c 1aims, York courts have allowed the aiding and abettil~ claims to proceed, but have dismissed as duplicative the conspiracy claims.") . Even for those defendants against whom thJ aiding and abetting claims are otherwise dismissed, the c9urt still dismisses the conspiracy claims for two indepe1dent reasons. 149 l First, the SHIP TPC does not adequately plead the element I I of existence of an agreement. As Saks notes, the! SHIP TPC could I have provided, for instance, "times, facts, and rircumstances regarding how the conspiracy began or, to the exfent Saks was brought into the conspiracy later, the agreement' by which Saks ' allegedly jointed the conspiracy." ECF No. 272, ~t 11. For I Michael Nordlicht, it is not clearly pled as to whether there I I was an "agreement" that Michael Nordlicht joinej to further the goals of conspiracy. And the Court would not find a conspiracy agreement based solely on defendants' common emJloyment. See Schwartz v. Soc'y of N.Y. Hosp., 605 N.Y.S.2d 7J, 73 (1st Dep't I I 1993); Brownstone Inv. Grp. v. Levey, 486 F. Supp. 2d 654, 661 ( E. D. Ky. 2 0 0 7) . Second, for certain individuals, civil con!piracy claims are dismissed for similar reasons that aiding a 1 d abetting I I claims were dismissed. For example, for the sam] reasons the substantial assistance or knowledge element is ~ot adequately I pled against a particular defendant, the "intentional I participation in furtherance of a p~an" element]would also often fail. Pope v. Rice, 04-cv-4171 (DLC), 2005 WL 6~3085, at *13 I i ( S . D. N . Y. Mar. 14, 2 0 0 5) . For these reasons, the Court in its "bottob-line" Order I I dismissed the civil conspiracy claims against 150 I . 11 moving I defendants 30 and hereby dismisses the civil conspiracy claim against Steinberg. III. BAM I et al. The group "BAM I et al." includes: BAM I, AM I I, BAM Administrative, Beechwood Re, Beechwood Holdings, BBL, BBIL, the Feuer Family Trust, the Taylor-Lau Family Trust 1i BAM GP II, BAM GP II, MSD Administrative, N Management, Beechw0od Global I Distribution Trust, Feuer Family 2016 Acq Trustj Taylor-Lau Family 2016 Acq Trust, and Beechwood Capital. Ttey move to dismiss all claims against them, and they incortorate by I reference the arguments in the memoranda supporting the motions to dismiss filed by Bodner, Beechwood Trust Nosl 7-14, Monsey I l Equities, LLC, and BRILLC LLC Series C. ECF No. 1 281, 1 n.2. A. Aiding and .Abetting Claims In its "bottom-line" Order, the Court gran ed the motion to 1 dismiss the aiding and abetting claims against BAM Administrative, Beechwood Holdings, BBL, MSD Adbinistrative, Beechwood Capital, N Management, BAM GP I, BAM bp II, the Feuer Family Trust, and the Taylor-Lau Family Trust, land denied the I motion to dismiss the aiding and abetting clai~s against other I i j This excludes Ottensoser, who did not move tb dismiss the .civil conspiracy claim against him. ECF No. 277', at 1. 30 151 BAM I et al. defendants, based on the following Jarticularized allegations, among others. With respect to BAM II: BAM II, in conjunction with BAM I, sered as an investment advisor for the other Beech ood Entities, and enacted Investment Management Agre~ments with both BBIL and Beechwood Re. In their capaci~y as investment managers, BAM signed on behalf of SHIP) and was the signatory for most, if not all, of theldeals Beechwood caused SHIP to enter. For deals in whi~h SHIP was transacting with a Beechwood Entity ditectly, BAM II served as the investment advisor to th~ Beechwood Entity and BAM I served as investment advisor to SHIP. I I BAM's 31 subsequent requests for withdr 9 wal of Performance Fees totaling $7,850,000 s~milarly were based on fraudulent valuations of SHIPrs investments. On each of those five occasions betweer July 2015 and July 2016, BAM used the falsely inflat~d asset valuations set forth in the valuation )reports that BAM sent to SHIP - which valuations remai~ed essentially unchanged over that entire period, sav.e for minor fluctuations - as the basis for its Performance Fee calculations, intending and knowing t~at SHIP would rely on those false valuations to its detriment in approving the Performance Fees. j Id. 17, 351. BAM II was heavily involved in 1 any of these 1 allegedly problematic transactions. It is hard io argue that, based on these allegations, BAM II did not substantially assist or did not have the requisite knowledge. With respect to BAM Administrative (a/k/a/1 BAMAS): BAM I and BAM I I are grouped together in the /SHIP TPC as "BAM." BAM's involvement in the Montsant, PEDEVfO, and Agera transactions is described in detail in the SHIP 1 TPC. See generally SHIP TPC 249-320. 31 I 152 j I I BAMAS served as agent for the Beechwo9d Trusts and as agent and signatory on behalf of Beec wood Re and BBIL in connection with certain transactio s described more fully below. For example, BAMAS was a signatory to a May 22, 2015 participation agreement 'n a July 14, 2010 Desert Hawk Gold Corp. note as a ent for Beechwood Re, BBIL, SHIP, BCLIC, WNIC,and ULICO, counter to DMRJ Group I, LLC - a subs}'diary of PPVA. Saks also signed the Montsant NPA on ehalf of BAMAS, which served as SHIP's agent for the {ransaction . . . ~AMAS, Michael Nordlicht, and Kevin clssidy were I knowing and willing participants in t~e conspiracy to commit fraud and breach of fiduciary 1uty by virtue of their involvement in the June 2016 AG¥ Transactions. SHIP TPC ' 20, 251, 449. The motion to dismiss/the aiding and abetting claims against BAM Administrative is gkanted, because (1) the first and last excerpted allegations fatl to plead such claims, because the SHIP TPC does not discuss t~e Desert Hawk transaction elsewhere and does not mention BAM fdministrative in the context of the June 2016 AGH Transactions a~ all, (2) the second allegation is too vague and broad to inf~r knowledge or I establish substantial assistance, and (3) the lrst allegation is conclusory. With respect to MSD Administrative: According to an organizational chart attached to a March 17, 2014 email from Feuer to Samuel Adler, MSD Administrative was an '[a]dministrat~ve company for mercurial tasks. For its limited seriices with these "mercurial tasks," MSD Administrativ~ was paid 153 I I significant service fees by the Beechwdod Entities. I These service fees were used to funnel !money out of the Beechwood Entities in order to shield assets from creditors. i Id. 21. As BAM I et al. correctly point out, t1e "mercurial 1 tasks" description fails to state the aiding andlabetting claims I I without any explanation as to what these tasks e1tailed and why these "mercurial tasks" tied to the primary frau! or breach of I fiduciary duty at issue. ECF No. 285, at 10. Fur hermore, the allegations regarding service fees are too vague and conclusory to meet the Rule 9(b) standard. Therefore, the Curt dismisses l the aiding and abetting claims against MSD Admin~strative. With respect to Beechwood Holdings and BBL:/ The Beechwood Holdings Subsidiaries w~re paid significant management fees and were provided significant assets for no considerati~n. The BBL Subsidiaries were paid significant management fees and were provided significant asdets for no consideration. I ' Id. 91, 93. These allegations fail to plead ~he aiding and ! abetting claims, because they are targeted at tne subsidiaries I of Beechwood Holdings and BBL and there is no s~pport as to why I the Court should pierce the corporate veil to hold the relevant I parent entities liable for their subsidiaries' fonduct. With respect to Beechwood Capital: j Beechwood Capital served as a "trade ~eference" for other of the Beechwood Entities in or er to access 154 I vendors and banks and prime brokers. Id communications with targets of the scheme, including ~HIP, Feuer and Taylor characterized Beechwood Capital /as a New York private investment fund that was devel9ping a new entrant into the life and health reins~rance market, without revealing that Beechwood Capit 1 in fact was a 1 mere instrumentality to be employed in !furtherance of the Platinum-Beechwood Scheme. i I On or about March 28, 2013, Steinberg emailed Huberfeld a list of wire transfers, oni of which was a transfer by Platinum of approximately 50,000.00 to Beechwood Capital. This transfer appea s to represent Platinum's initial investment in, and unding of, Beechwood. l 66. 32 These allegations fail to state t I e aiding and ' abetting claims. In the first excerpted paragraph, Feuer and ! Taylor, not Beechwood Capital itself, made the alleged misrepresentation. As to the second excerpted paragraph, as this I Court has previously found, the initial funding ~f Beechwood does not in and of itself show any fraudulent itjtent or I knowledge of the primary fraud or breach of fid~ciary duty. See I In re Platinum-Beechwood Litig., 18-cv-6658 1570808, at *12 (JS~), 2019 WL (S.D.N.Y. Apr. 11, 2019). With respect to N Management: N Management, controlled by NordlichtJ signed the I 1 pe In addition, Beechwood Capital is alleged to part of the Feuer Group, which in turn is alleged to be a rrcipient of the March 20, 2013 email outlining the terms of thej PlatinumBeechwood Scheme, and by February 2013, the gro~p was "already in discussion with potential targets." SHIP TPC: !! 64-65. These allegations are too broad and rely on impermiss 1'ble group pleading. 32 155 demand notes upon which Beechwood Re ~laimed to be capitalized with $100 million and BBITI claimed to be capitalized with $75 million. N Managdment also caused I BRILLC to issue a secured promissory ~ote to BBIL so that BBIL could purchase a surplus notie from SHIP in the amount of $50 million . . . . In 2017, under the control of Feuer, N Management releasJd all of the initial collateral upon which the $1oq million demand notes were based, and replaced that c1llateral with certain interests in the Surplus Note AGH Parent LLC, Beechwood Holdings, and BBL. 1 I 1 Id. 33. The two transactions were executed aslpart of initial j capitalization of Beechwood entities, and they ~o not by themselves support anything remotely close to NIManagement's knowledge of the primary fraud or breach of fid ciary duty. The SHIP TPC does not contain any detail regarding transaction, let alone any support as to why N he 2017 1anagement's role I in this transaction satisfies the substantial a]sistance or knowledge element. For these reasons, the aidinr and abetting claims against N Management are dismissed. I With respect to the Feuer Family Trust and1 the Taylor-Lau I I I Family Trust: I I The Feuer Family Trust was created tol hold Mark Feuer's ownership interest in Beechwo~d Holdings and ' BBL. The Taylor-Lau Family Trust was creat1ed to hold Scott Taylor's ownership interest in Beech1ood. I 156 Id. 27, 28. These allegations regarding ownenship do not show I any wrongdoing or knowledge of the primary frauJ or breach of fiduciary duty. I II With respect to the Beechwood Global Distr~bution Trust, the Feuer Family 2016 ACQ Trust, and the TaylorfLau Family 2016 ACQ Trust (collectively, the "2016 Acquisition trusts"): [They] were trusts created and used f~r the purpose of furthering the fraudulent schemes of Feuer, Taylor, Levy, Nordlicht, Huberfeld, and Bodnet. On August 5, 2016, each of the 2016 Acquisition Trvsts was used to execute the transfer of equity in Beerhwood Holdings and BBL from the Nordlicht Group to F$uer and Taylor in exchange for debt in the form of secured promissory notes amounting to approximately $100imillion . . . . [As part of the August 5, 2016 Transactions,] the 1 Beechwood Trusts purported to transfe! their nearly 70% interest in Beechwood Holdings to the Taylor-Lau Family 2016 ACQ Trust and the Feuer F mily 2016 ACQ Trust in exchange for a promissory no}e in the principal amount of $36,550,000. The fRILLC Series Entities, with the BRILLC Series Memb~rs acting on their behalf, also purported to trans~er their approximately 70% aggregate interest in BBL to the Taylor-Lau Family 2016 ACQ Trust and fhe Feuer Family 2016 ACQ Trust in exchange for a prom~ssory note in the principal amount of $51,439,756.10. 'I Id. 34, 433. 33 These allegations plead the s1bstantial I assistance and knowledge elements of the aidini and abetting claims. These three trusts were instrumental in carrying out the August 5, 2016 Transactions, which further conlealed Nordlicht, The SHIP TPC contains additional specific allegations against each of the 2016 Acquisition Trusts regarding tjheir role in the August 5, 2016 Transactions. See, e.g., SHIP T,C 389, 431-34. 33 157 Huberfeld, and Bodner's economic interest in Beec~wood Holdings and BBL by changing the companies' ownership strJcture, while maintaining the intended economic beneficiaries. lsee id. Furthermore, the detailed descriptions of their ~nvolvement give "rise to an inference of [their] knowledge" of t1e primary fraud I by misrepresentation and breach of fiduciary dutf by harming SHIP. Krys v. Pigott, 749 F.3d 117, 129 (2d Cir. ~2014). Lastly, there are no particularized allegatton satisfying the Rule 9(b) standard against BAM GP I and BAM fp II, and so the Court grants the motion to dismiss the claimp against BAM GP I and BAM GP II. B. Claim for Declaratory Judgment for Contractual Indemnification / BAM I et al. moved to dismiss the claim fo4 declaratory judgment for contractual indemnification, but tHey did not I provide any reason. Therefore, the motion is de1ied. IV. Beechwood Trust Nos. 7-14, Monsay Equities LLC, Beechwood Re Investments, LLC Series C, Lawrence Par ners LLC, Whitestar LLC, Whitestar LLC II, and Whitestar LLC III 1 Other than the allegations regarding owner~hip structures of these entities, the SHIP TPC makes more or lrss the same allegations against these entities as it does flr the Beechwood Global Distribution Trust, the Feuer Family 201~ ACQ Trust, and the Taylor-Lau Family 2016 ACQ Trust discussed ~hove. See id. ! I 158 433. Here, the Court finds that the grouping of jentities - by relying on terms such as "Beechwood Trusts," "BJILLC Series Entities," and "BRILLC Series Members" - is not fatal to satisfying the pleading standards in this partidular circumstance, because the SHIP TPC alerts theseldefendants that identical claims are asserted against each, whi hare combined for efficiency's sake; it would amount to an un easonable burden for SHIP to, at the pre-discovery stage, distin uish among these I I entities, for instance, as to what percentage ofI the 70% aggregate interest in BBL each of the BRILLC seiies Members transferred. For substantially the same reasons!as discussed in l the context of the Beechwood Global Distributior Trust, the Feuer Family 2016 ACQ Trust, and the Taylor-Lau! Family 2016 ACQ ! Trust, the motion to dismiss the aiding and aberting claims I against Beechwood Trust Nos. 7-14, Monsey Equities, LLC, I Beechwood Re Investments, LLC Series C, Lawrenc~ Partners LLC, Whitestar LLC, Whitestar LLC II, and Whitestar ~LC III is therefore denied. j 34 ' Some of these moving defendants contend thatjnothing about the August 5, 2016 Transactions is "alleged to hav~ caused any damage to SHIP," ECF No. 337, at 3, but the Court does not find this argument persuasive. The SHIP TPC states tjhat the continued concealment made SHIP "not to terminate the IMds sooner or to take other actions that might mitigate the damages that SHIP suffered while the IMAs remained in effect." S~IP TPC ~i 437-38, 443-44. 34 159 V. David Bodner I As a threshold matter, Bodner argues that the SHIP TPC fails to adequately allege facts establishing pr~mary fraud as part of the claim for aiding and abetting fraud. ;ECF No. 27 9, at 5-8. Contrary to Bodner's view, the SHIP TPC conJains allegations that Taylor, Feuer, Levy, and others/committed fraud, for instance, by making affirmative misrepresentation to I I SHIP or that they breached their fiduciary duty to SHIP. See, ' e.g., id. 11 67, 71, 128, 132, 142, 268, 411, 420, 446. I Furthermore, this Court has held previously that/ SHIP has I adequately pled actionable fraud and fiduciary d~ty claims against those individuals in the SHIP action basbd on similar -I allegations. See In re Platinum-Beechwood Litig. !, 377 F. Supp. 3d 414, 419-20 (S.D.N.Y. 2019); In re Platinum-Beechwood Litig., 345 F. Supp. 3d 515, 523-27 (S.D.N.Y. 2019). As discussed above in the context of the the July 29, I 2015 email sufficiently establishes Bodner's kn~wledge. See SHIP TPC 1 114. With respect to the substantial assi~tance element, I various statements and emails sent on behalf of!Platinum - such as alleged overvaluation of the Platinum portfo}ios, see id. 11 I 321-66 - can be attributable to Bodner given his insider status I I as one of the founders of Platinum and as an alfeged mastermind of the alleged scheme. Further supporting this,j he did have 160 } I input into Platinum's and PPVA's investment valJations or assessments of associated risks. See id. 327128. For all of these reasons, the motion to dismiss the aiding and abetting claims against Bodner is denied. VI. Elliott Feit The SHIP TPC makes the following particula~ized allegations against Feit: Feit was responsible for calculating fny performance fees to which any of the Beechwood Advisors were allegedly entitled, for submitting thf performance fee requests to SHIP, and for responding to requests from SHIP for information about those requests. As discussed below, all of the performan~e fee requests submitted by Feit or others were false, in that each request was based on inflated valuati~ns of the investment assets within the SHIP IMA/Accounts that the Beechwood Advisors managed . . . . Because of Feit's position as an officer within Beechwood and his day-to-day involvement in the operatipns and finances at the Beechwood Advisors, he underst9od that the investment valuations reported to SHIP and others were materially inflated. Feit was on the Finance Committee and made monthly presentations to thej board on the financial performance of the Beechwoo~, Advisors including the assets under the IMAs. feit also worked with the valuation firms to get confi~mation of Beechwood's inflated valuations. [SHIP TPC 35] For example, on April 2, 2015, Elliot1 Feit, Finance Director of Beechwood, acting for an~ at the direction of Beechwood and through the mails and wires of I interstate commerce, requested autho ization from Lorentz to withdraw $3,500,000 as a ~erformance Fee from the BAM IMA account. In support Jof this request, Feit represented in writing to Loren~z that the assets contained in the BAM IMA account at tjhat time possessed a market value of $115,143~472.39 'and a principal plus interest owed to SHIPjof 1 161 $110,780,801.37.' In light of the assjrted 'excess' of $4,362,671.02, Feit requested approvaj of a withdrawal of $3,500,00 in Performance Fees, and submitted a 'Withdrawal Notice' for that amount s~gned by Saks for countersignature by Lorentz. Feit fur~her supported this request by attaching the Wilming on Trust statements for this account for the p riod ending on March 31, 2015, to illustrate the purported investment activity and interest accrued on the dccount. [Id. <JI 347] This plan to transfer bad investments from CNO's account to SHIP's is revealed in a se ies of emails between several of the Co-Conspirator on July 23, 2015. Stewart Kim forwards Elliot Fei a conversation with Eric Johnson and Timothy Bischof of CNO, requesting 'a table specifying the lo ns/amounts potentially to be transferred into thT [WNIC] Trust' and asks him to provide the materialsj Feit forwards the exchange to Moti Edelstein and asks for a 'listing of the belie privates' to which Edelstein asks if he 'want[s] the list of loans transferre~ from BCLIC Primary to SHIP-BAM showing their curtent values[.]' Feit agrees that is how he understoodjthe request. Edelstein proceeds to send Feit a list that Feit in turn forwards to Kim. The list includes loans to: I . . Each and every one of these investments is related to Platinum. Each and every one of these loans was purchased at or around par, despite B~echwood's knowledge that they were not worth th~ir purported value. [Id. 'JI 377] ' See also id. <JI<JI 354, 360. These allegations - cbntrary to Feit's characterization as "nothing more than carry o+ his ministerial and administrative duties as a finance director! at Beechwood," ' ECF No. 346, at 1, 5, 9 - sufficiently plead s~bstantial assistance. In addition, these allegations, toJether with his alleged role as a member of the Finance CommitJee of Platinum I I I ' 162 and the Chief Financial Officer of BAM I, 35 lead'to a reasonable inference of his knowledge of the primary fraud and breach of fiduciary duty. See also JP Morgan Chase Bank v Supp. 2d 247, 252 (S.D.N.Y. 2005) ,j Winnick, 406 F. (holding that /defendant's knowledge can be pled generally under Rule 9(b)~ "provided a factual basis is pled which gives rise to a str ng inference of fraudulent intent"). VII. Bernard Fuchs l I The SHIP TPC makes the following particulatized allegations regarding Fuchs: Fuchs did not have an official title, !but nevertheless had day-to-day involvement in the management and operations of Platinum Management andlPPVA . . . . He also was aware of and participated in/the planning, marketing, and execution of various afpects of those transactions, such as assisting in the planning of the Agera Transactions . . . . During latej 2015 and the first quarter of 2016, Fuchs engaged ~n numerous discussions with investors seeking intormation concerning the status of PPVA, their investments, and I requests for redemption, often exchanging emails with Nordlicht, Bodner, Huberfeld, Levy, ahd Landesman concerning the best response to thosJ investor inquiries or forwarding on such inquikies . . . . Fuchs 35 Feit refutes the factual allegations that he had a dual role in Platinum and Beechwood and that he was "BAM Jr's CFO," submitting an affidavit attesting that he was mployed by MSD Administrative and never employed by any Platinum-related entity. ECF No. 346, at 4 (referencing Feit Affidavit, ECF No. 345, Ex. 3-8). The Court does not considet this affidavit at this motion to dismiss stage, because the a4fidavit is submitted to dispute a factual allegation made in the SHIP TPC. See Global Network Comrnc'ns, Inc. v. Cit of N w York, 458 F.3d 150, 156 (2d Cir. 2006). 7 163 was also heavily involved in the China ~orizon investments, and served on the China H rizon board of directors. [ SHIP TPC <JI 4 6] The Platinum and Beechwood Insiders cased SHIP to invest in two promissory notes with Ch'na Horizon Investment Group. . The related-p rty nature of the transactions was never revealed to ISHIP . . . . In November 2015, the Platinum and BeechwJod Insiders caused Beechwood to buy a promissory nJte from Kennedy Sobli Consultants, a company owned by $ernard Fuchs-a partner at Platinum Partners-and his family. [Id. <JI 240(e)-(f)] / The above allegations adequately plead substantial assistance. I I However, the knowledge element is not sufficient~y pled. In contrast to Bodner, Huberfeld, or Nordlicht, Fuc~s does not occupy as central of a role as an insider of thelBeechwoodPlatinum scheme. The China Horizon deal and the , ennedy Sobli l Consultants deal are alleged to be non-arm's length deals, but these deals, in and of themselves, do not necesJarily add to the i inference that Fuchs had the knowledge that rel1vant Beechwood I entities and individuals were committing fraud ~gainst or breaching their fiduciary duty to SHIP. Lastly, !the SHIP TPC describes the Agera transaction in detail but n ver mentions 1 Fuchs other than that he "assist[ed] in the planning of the I Agera Transaction," which lacks particularity.~ I 164 <JI 46. For these reasons, the motion to dismiss the aiding abetting claims against Fuchs is granted.3 6 VIII. Murray Huberfeld Huberfeld incorporates by reference Bodner's and other moving defendants' applicable arguments. 18-cv- ,658, ECF No. I 452, at 1. Contrary to Huberfeld's claim that tle only affirmative act that SHIP connects to Huberfeld in the SHIP TPC is the March 20, 2013 email discussed below, idj at 8, the SHIP TPC makes the following particularized allegatiJns against j Huberfeld: (1) he participated in initial funding of Beechwood Re, SHIP TPC 23, 66, 72; (2) he maintained aJ office, phone line, and computer at Beechwood's offices and wfs provided a full-time secretary, id. 23, 111-12; (3) on rarch 9, 2015, Huberfeld "gave the go ahead to David Steinberg!- using a I Platinum email address - to sell $10 million wotth of PEDEVCO from CNO's WNIC 2013 LTC Primary trust to a thi~d-party bank," id. 113; and (4) he sent the March 20, 2013 e ail setting 36 In addition to the knowledge and substantial assistance elements, Fuchs also focuses on the proximate ~dausation element. ECF No. 262-2, at 5. However, the concept of p oximate cause is already "embedded into the substantial assista ce element," and it is established "where a plaintiff's injury as a direct or reasonably foreseeable result of the defendant '!s conduct." Silvercreek Management, Inc. v. Citigroup, Inc.J et al., 346 F. Supp. 3d 473, 488 (S.D.N.Y. 2018). 165 forth a detailed "outline of terms" between PlaJnum and Beechwood, id. I 64. l Without even relying on the group pleading roctrine - which is permitted here given Huberfeld's insider sta~us, see id. I 327-28 - these allegations sufficiently plead the substantial assistance element of the aiding and abetting c~aims. For substantially similar reasons as discussed abovJ in the case of I Feit, the above alleged facts - along with Hube~feld's insider status and the July 29, 2015 email discussed abJve - "give rise I I to an inference of knowledge" of the underlying,fraud and breach I I of fiduciary duty. Krys v. Pigott, 749 F.3d 117; 129 (2d Cir. 2014). In fact, whether SHIP sufficiently plead! the knowledge element is not disputed by Huberfeld. But in anr case, the knowledge element is adequately pled for substaftially the same reasons that it is adequately pled for the aidirg and abetting claims against Bodner, as discussed above). See1 ECF No. 322, at 35; 18-cv-6658, ECF No. 452. IX. Hokyong (Stewart) Kim The SHIP TPC makes the following particula~ized allegations I ! against Kim: I I Kim was a senior manager of Platinum ;Management. Starting in November 2013, Kim misre~resented himself and other Platinum Management employ~es to WNIC and BCLIC as the Chief Risk Officer for ~eechwood Re and BAM. . At the time, Beechwood Re and BAM did not 166 l I have a Chief Risk Officer, despite mar*eting materials claiming otherwise. [SHIP TPC 1 44] / I This plan to transfer bad investments from CNO's account to SHIP's is revealed in a series of emails 1 between several of the Co-Conspiratorsl on July 23, 2015. Stewart Kim forwards Elliot Feit a conversation with Eric Johnson and Timothy Bischof ~f CNO, requesting "a table specifying the loaf's/amounts potentially to be transferred into the [WNIC] Trust" and asks him to provide the materials. Feit forwards the exchange to Moti Edelstein and asks for a "listing of the belie privates" to which Edelstbin asks if he "want [ s] the list of loans transferred/ from BCLIC Primary to SHIP-BAM showing their currt=nt values[.]" Feit agrees that is how he understood ~he request. Edelstein proceeds to send Feit a listJ that Feit in turn forwards to Kim. The list include~ loans to [various entities . . . where each] e~ery one of these investments is related to Platinum. E~ch and every one of these loans was purchased at or ar,'und par, despite Beechwood's knowledge that they were ot worth their purported value. [Id. 1 377] j I I These allegations sufficiently plead the substarltial assistance I element. Furthermore, given Kim's role as the cJief Risk Officer of Beechwood Re and BAM I, the above conduct - Jspecially his l affirmative misrepresentation as the Chief Risk'Officer of Beechwood Re and BAM I and his deep involvement the transactions ' transferring bad investments from WNIC and BCLif's account to SHIP's - give rise to an inference of Kim's knowledge of the I underlying fraud by misrepresentation and breacr of fiduciary I duty by harming SHIP. X. Michael Nordlicht and Kevin Cassidy 167 The SHIP TPC makes the following particularo..zed allegations I against Michael Nordlicht: I Michael Nordlicht participated in meetings with SHIP to discuss the Agera Transactions. He parti~ipated directly in the closing of those transactions to the detriment of SHIP. [Id. 'I[ 48] I I On June 17, 2014, Michael Nordlicht acquired 100% of the equity in Agera Energy. At the time of t~e sale, Michael Nordlicht was a recent law school graduate who previously had worked as an analyst at Platinum Mankgement for his uncle, Mark Nordlicht. It is unclear whal, if anything, he paid for his interest in Ager a EnergyL [Id. 'I[ 2 7 2] The next day, on June 18, 2014, Michael kordlicht sold a 4.99% interest in Agera Energy to Beechwpod Re. It is unclear what, if anything, Beechwood Re raid for that interest. [Id. 'I[ 273] Steinberg and Ottensoser - working with thers, including Michael Nordlicht, Narain, and Kevin Cas~idy - were responsible for preparation of the docu~ents by which various portions of the [June 2016 AGH Tlransactions] were consummated. [Id. <JI 304] I Although the above allegations may plead the su stantial 1 assistance element, for similar reasons as the fnes discussed I above for dismissing the aiding and abetting clrims against I Fuchs, the knowledge element here is not adequately pled. In contrast to Bodner, Huberfeld, or Nordlicht, Mi~hael Nordlicht does not occupy as central of a role as an insiper of the Beechwood-Platinum scheme. Although the Agera transactions are alleged to be non-arm's length deals, these de ls in and of themselves do not add to the inference that Mi hael Nordlicht I l I 168 I 1 had the knowledge of the primary fraud or breach! of fiduciary I l duty. I In addition to the last excerpted allegation above, Cassidy faces the following particularized allegations:! When Cassidy was released from prison inl2014, Nordlicht, Bodner, and Huberfeld installed him as t~e managing director of Agera Energy. Cassidy was intimately involved in all aspects of the Agera Transactionsjand participated in meetings with SHIP related to the transactions . . 1 In 2016, when the Beechwood Advisors wer soliciting SHIP to participate as an unwitting victim in the June 2016 1 Agera Transactions where SHIP's fresh ca h of $50 million or more was needed to advance the scheme[_ Cassidy met with Wegner and Lorentz of SHIP when the( visited New York before the deal, and Cassidy joined! in the effort to solicit SHIP on the false premise that the proposed deal was a legitimate transaction when in fac~t SHIP was duped, as he fully understood. [Id. 4 9] 1 1 Cassidy and others from Agera Energy pro ided information to SHIP regarding corporation operations:I and assisted Beechwood and Platinum in soliciting SHIP's investment outside the IMAs. [Id. 288] These allegations sufficiently plead facts estaflishing substantial assistance. Furthermore, his role a1 a director of Agera and the above alleged conduct - especialll his soliciting I of SHIP's funds, which are more closely tied toj the primary fraud and breach of fiduciary duty against SHIP compared to Michael Nordlicht's alleged roles - give rise tp an inference of I Cassidy's knowledge of the underlying fraud anl breach of fiduciary duty. XI. I David Ottensoser 169 Ottensoser moved to dismiss only the unjust/enrichment claim against him, which was dismissed as discus ed above. ECF No. 277, at 1. XII. PB Investment Holdings Ltd. 3 7 The SHIP TPC makes the following particular·zed allegation regarding BBIHL, PBIHL's predecessor-in-interest:38 Specifically, on April 1, 2016, pursua!nt to an Assignment of Note and Liens (the "FiJst Repo Agreement"), PGS assigned the Convertible Note to BBIL I ULICO 2014 . . . , [BBIHL] . . . , an9 BBIL (together, the "First Repo Assignees") in exchan3e for $15 million in cash, of which $2.5 millio1 (representing 16.7%) was funded from SHIP's BBIL IM funds. [SHIP TPC err 281] In its "bottom-line" Order, the Court granted t emotion to dismiss the aiding and abetting claims against BIHL, because 37 PBIHL incorporates by reference the personal durisdiction argument it made in its memoranda in support of/its motions to dismiss the claims against PBIHL in the FAC and the WNIC TPC. ECF No. 347, at 13. For the reasons discussed above in the I context of the FAC and the WNIC TPC, the Court has specific personal jurisdiction over PBIHL in the context: of the SHIP TPC as well. In addition, PBIHL's predecessor-in-interest was a party to the First Repo Agreement, dated April~' 2016, where SHIP claims that this was negotiated and consummated in New York. ECF No. 361, at 28. : 38 As PBIHL correctly points out, PBIHL was not/included in the SHIP TPC's definition of "Platinum Entities," ~Beechwood Entities," or "Co-Conspirators," so, strictly ~peaking, none of Counts 1, 2, and 7 were ever alleged against P~IHL. ECF No. 361, at 1 (referencing SHIP TPC err 1 nn. 1-3). The c5urt's analysis here assumes this error did not exist, althoug this error alone is fatal to SHIP's claims against PBIHL. 170 this allegation alone fails to plead knowledge oi the primary I I . fraud and breach of fiduciary duty. It would be speculative to infer BBIHL's knowledge of the primary fraud or lreach of I I fiduciary duty from this minor role alone as part of a complicated series of Agera transactions. This m~nor role is in stark contrast to, for instance, BAM I's extensi~e involvement I in the Montsant, PEDEVCO, and Agera transactions . Indeed, SHIP's 1 aiding and abetting claims against PBIHL "appear to be an attempt to create liability by association." Ecm No. 347, at 9. XIII. I Daniel Saks I I The SHIP TPC makes the following particula1ized allegations, among others, against Saks: (1) saJs received and was involved in commenting on the third-party vJluation reports sent to BAM I, which included inflated valuatio~s of the / Beechwood transactions with PPVA, SHIP TPC 3?, 339; (2) Saks signed a Note Purchase Agreement on SHIP's behaif to acquire a note from Montsant Partners, LLC, a wholly owne~ portfolio company of Platinum Partners Value Arbitrage Futd, LP, id. 249-51; 39 (3) despite the prices of oil and natJral gas rapidly 39 Saks disputes the allegation that the loan m de to Montsant using SHIP's money, pursuant to the Note Purchase Agreement that Saks signed, was effectively undercollateralizej~' because it was guaranteed by Nordlicht and Kalter. ECF No. 272, at 3-4. However, at this motion to dismiss stage, the 6urt takes the 1 171 I declining and PEDEVCO's financial condition worsJning, in April I 2015, BAM I purchased, on SHIP's behalf, the PEDIVCO notes, which were then assigned to SHIP pursuant to a d?cument Saks executed on SHIP' s behalf, id. <J[ 2 61; 40 ( j 4) Saks ,"was involved in I negotiating amendments to the Golden Gate Oil tr~nsaction I I documents," id. <J[ 37; and (5) Saks signed a withdrawal notice document in the amount of $3,500,000 in performahce fee from I I SHIP' s account, id. <J[ 347. These allegations suf!ficiently plead substantial assistance. Silvercreek Mgmt., Inc.~- Citigroup, I Inc., 346 F. Supp. 3d 473, 487 (S.D.N.Y. 2018) r[S]ubstantial assistance can take many forms, such as executi1g transactions or helping a firm to present an enhanced financ'al picture to others."). For similar reasons as discussed abo e in the context of Feit, Huberfeld, and Kim, Saks' role as the I hief Investment I I allegations that this loan was effectively undelcollateralized more so given that the post-closing collateraliiation requirement was not subsequently satisfied - atltheir face value. SHIP TPC <J[<J[ 253-55. Furthermore, these gr'arantee obligations had not been performed by Nordlicht and Kalter as of the date of filing of the SHIP TPC. Id. <J[ 256. , I 40 Saks argues that he resigned from BAM I on Dicember 31, 2015, and so he cannot be held liable for the 2016 transactions that restructured the PEDEVCO debt to subordinate SH~P's priority for repayment under Beechwood's rights for repayment· ECF No. 272, at 2, 4 (referencing SHIP TPC <J[<J[ 258-67). But he allegedly executed an Assignment Agreement dated April 1~, 2015 through which SHIP acquired a secured note issued by PBDEVCO in April 2015, which was allegedly problematic. SHIP TP9 <J[ 261. 172 · Officer of Beechwood Re and BAM I and his intimate and extensive ' involvement in the allegedly problematic transac}ions described here 41 give rise to a strong inference of Saks' 1nowledge of the j primary fraud and breach of fiduciary duty. XIV. Will Slota i The SHIP TPC makes the following allegation~ against Slota: [Slota] was a senior manager of Platinum!Management who, starting in November 2013, misrepresented himself to WNIC and BCLIC as the Chief Operating Officerjof Beechwood Re and BAM . . . . Slota and the Co-Conspirators lived this lie for several years, starting in Novemilier 2013, when Slota's paychecks were coming from Plati~um Management. Slota served as the enforcer within:the integrated Platinum-Beechwood conspiracy for maintatning the deception that the Beechwood Entities haf no connection with Platinum, ensuring that the Co-Cons irators who were misrepresenting themselves as certain of the Beechwood Entities' officers and managers did NOT ~se their "@platinumlp" domain (or otherwise convey evidence of their Platinum affiliation) when communi~ating with those outside of the conspiracy. . Slota w~s also the point person responsible for finding and hirin~ a valuation firm that would make the Beechwood Advisors' investments in Platinum Funds and Platinum-related ehtities appear legitimate to the outside world. [SHIP 1PC I 45] [I]n a series of emails from March 11, ~014 among Nordlicht, Slota, Kim, and Levy, after 9ongratulating Slota for making eight fraudulent agreements with a prime broker in order to open the CNO trust ajcounts, Nordlicht made this plan clear: "let's all please focus on our respective jobs. Stew [Kim] needs to lo k at risk, u •1 In this respect, Saks is incorrect in arguin~ that SHIP's aiding and abetting claim against him depends splely on Saks' position as Chief Investment Officer to supervise SHIP's investments in 2015 and his prior employment at/ Platinum which allegedly allowed him to be aware of "all aspeots of the Platinum-Beechwood scheme." ECF No. 272, at 7 (!emphasis). l 173 l i [Slota] need to do blocking and tackling ~n [prime brokerage] account openings. [Id. 116] Beechwood always intended to defer to Pl,tinum's valuations. For example, in a series of emails from March 19, 2014, Will Slota, Naftali Manela, El~iot Feit, and David Levy discuss putting together BAM'~ valuation policy. [Id. 335] J For substantially similar reasons as discussed above in the context of Feit, Huberfeld, Kim, and Saks, these] allegations state aiding and abetting claims against Slota. ~n particular, I his role as the Chief Operating Officer of Beechwood Re and BAM I I and the above allegations - especially that Sl~ta was in l charge of opening allegedly fraudulent prime brdkerage account I give rise to an inference of Slota's knowledge df the primary fraud and breach of fiduciary duty. X:V. David Steinberg 42 42 Steinberg argues that all the claims against ~im are barred by Rule 14 of the Federal Rules of Civil Procedure~ allegedly because "Rule 14(a) does not allow a third-parti complaint to be founded on a defendant's independent cause of action against a third-party defendant, even though arising out 9f the same occurrence underlying plaintiff's claim, becaus¢ a third-party complaint must be founded on a third party's actual or potential liability to the defendant of all or part of th¢ plaintiff's claim against the defendant." ECF No. 388, at 9j As SHIP correctly points out, the SHIP TPC did not rely on Rule 14 to join Steinberg; instead, SHIP made valid crossclaims against other co-defendants pursuant to Rule 13(g) and then joined Steinberg to those crossclaims pursuant to Rule} 18 and 20. See Fed. R. Civ. P. 18 (a) ("A party asserting a cla~m, counterclaim, crossclaim, or third-party claim may join, as i~dependent or alternative claims, as many claims as it has agj inst an opposing 174 I The SHIP TPC makes the following allegation! against Steinberg: [Steinberg was] a portfolio manager, investment advisor, and co-chief risk advisor for:PPVA, and was at all relevant times a member of the yaluation committee that had overall responsibility for valuing PPVA's assets. Steinberg was integrally involved in nearly all aspects of the Platinum-Bee~hwood Scheme. He began working as a co-investment adyisor to BAM in 2014, for which he was paid significan} performance fees. Steinberg participated in the Pl?tinum Management valuation committee meeting~ and help set the inflated PPVA valuations, which caused the inflated valuations represented by the Beechwood Advisors. [SHIP TPC § 4 7] Huberfeld also maintained active contrpl over Beechwood investments. On March 9, 2015, he gave the "[g] o ahead" to David Steinberg - usinl1g a Platinum email address - to sell $10 million worth of Pedevco from CNO's WNIC 2013 LTC Primary trus~ to a thirdparty bank. [Id. § 113] i [In the context of the Montsant transaction,] Nordlicht and David Steinberg, both P atinum executives, executed the Note Purchas Agreement on behalf of Montsant. [Id. § 240b; see lso § 251] 1 David Steinberg, a senior vice presid~nt and portfolio manager for Platinum, joined the board of PEDEVCO by July 2015. [Id. § 257] I Further, on May 23, 2014, Ari Hirt, al Platinum Management portfolio manager for Golden Gate told ______N_o_r_d_l_i_·c_h_t_, Levy, Saks, ~nd Steinberg rhat a potential l. party."); Fed. R. Civ. P. 20 (a) (2) ("Persons . may be joined in one action as defendants if: (A) any right tb relief is asserted against them jointly, severally, or inl the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurr~nces; and (B) any question of law or fact common to all defenctants will arise in the action.") . 1 I 175 third party lender had brought up Blacl Elk's SEC filing, writing "the issue is that it 1ublicly discloses the value of the option and herefore pegs [Golden Gate's] value at $60M. This is ultimately a marketing issue that could be dealt wifh but something we should all be aware of. [Id. § 333] j For substantially similar reasons as discussed a ove for other moving defendants, these allegations adequately lead substantial assistance, especially his signing o relevant I transactional documents. Silvercreek Mgmt., Inc./ v. Citigroup, Inc., 346 F. Supp. 3d 473, 487 assistance can take many forms, (S.D.N.Y. 2018) (~[S]ubstantial such as executiJg transactions j or helping a firm to present an enhanced financ,al picture to others."). Indeed, the above allegations as a wnole - especially ' combined with the allegation that he was a port1olio manager, I investment advisor, and co-chief risk advisor fjr PPVA, a board member of PEDEVCO, and a member of the valuatioim committee "give rise to an inference of [Steinberg's] kno ledge" of the I ' overvaluation of Golden Gate Oil and the non-arf's length nature fs I of the PEDEVCO and Agera transactions, as well the primary I breach of fiduciary duty associated with those alleged frauds. I Krys v. Pigott, 749 F.3d 117, 129 (2d Cir. 2014~. I Conclusion I I In sum, this Opinion and Order set forth ~he reasons for the Court's "bottom-line" Order issued on Augu~t 18, 2019, which 17 6 is hereby reaffirmed. In addition, it grants Ste'nberg's motion to dismiss the unjust enrichment claim and the c'vil conspiracy claim in the SHIP TPC against him, while denying Steinberg's motion in all other respects. The Clerk is directed to close the entry wi~h the docket I number 387 on the Cyganowski docket, 18-cv-12018. SO ORDERED. Dated: New York, NY October!:_, 2019 177

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