661 F.3d 164 (2nd Cir. 2011), 10-1648, Wachovia Bank, Nat. Ass'n v. VCG Special Opportunities Master Fund, Ltd.

Docket Nº:10-1648-cv.
Citation:661 F.3d 164
Opinion Judge:KEARSE, Circuit Judge:
Party Name:WACHOVIA BANK, NATIONAL ASSOCIATION, Wachovia Capital Markets LLC, Plaintiffs-Appellants, v. VCG SPECIAL OPPORTUNITIES MASTER FUND, LTD., formerly known as CDO Plus Master Fund Ltd., Defendant-Appellee.
Attorney:Shawn Patrick Regan, New York, NY, (Hunton & Williams, New York, NY, Patrick L. Robson, Hunton & Williams, Charlotte, NC, on the brief), for Plaintiffs-Appellants. Terence W. McCormick, New York, NY, (Steven G. Mintz, Mintz & Gold, New York, NY, on the brief), for Defendant-Appellee.
Judge Panel:Before: KEARSE, POOLER, and LYNCH, Circuit Judges.
Case Date:October 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 164

661 F.3d 164 (2nd Cir. 2011)

WACHOVIA BANK, NATIONAL ASSOCIATION, Wachovia Capital Markets LLC, Plaintiffs-Appellants,

v.

VCG SPECIAL OPPORTUNITIES MASTER FUND, LTD., formerly known as CDO Plus Master Fund Ltd., Defendant-Appellee.

No. 10-1648-cv.

United States Court of Appeals, Second Circuit.

October 28, 2011

Argued: May 24, 2011.

Page 165

[Copyrighted Material Omitted]

Page 166

Shawn Patrick Regan, New York, NY, (Hunton & Williams, New York, NY, Patrick L. Robson, Hunton & Williams, Charlotte, NC, on the brief), for Plaintiffs-Appellants.

Terence W. McCormick, New York, NY, (Steven G. Mintz, Mintz & Gold, New York, NY, on the brief), for Defendant-Appellee.

Before: KEARSE, POOLER, and LYNCH, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiffs Wachovia Bank, N.A. (" Wachovia Bank" or the " Bank" or " WB" ), and Wachovia Capital Markets, LLC (or " WCM" ), which formerly were owned by Wachovia Corporation (" Wachovia" ) and now are wholly-owned subsidiaries of Wells Fargo & Company, appeal from a judgment of the United States District Court for the Southern District of New York, Laura Taylor Swain, Judge, dismissing their action seeking to enjoin an arbitration proceeding brought by defendant VCG Special Opportunities Master Fund, Ltd., formerly known as CDO Plus Master Fund Ltd. (collectively " VCG" ), before the Financial Industry Regulatory Authority, Inc. (" FINRA" ), against WCM in connection with a credit default swap (or " CDS" ) transaction between VCG and Wachovia Bank. Plaintiffs asserted that there was no arbitration agreement between VCG and WCM. The district court granted VCG's motion for an order compelling arbitration and dismissed the complaint, ruling that the FINRA Code of Arbitration Procedure for Customer Disputes (" FINRA Code" ) provides for arbitration of disputes between a FINRA member and its " customer[s]," and that, as WCM was a FINRA member and negotiated part of the CDS agreement entered into by VCG and Wachovia Bank, VCG should be considered a customer of WCM within the meaning of the FINRA Code. On appeal, plaintiffs contend that the district court erred in ruling that VCG was a customer of WCM. For the reasons discussed below, we agree and reverse the judgment.

I. BACKGROUND

In this dispute as to whether VCG was a " customer" of WCM within the meaning of the FINRA Code with respect to the credit default swap in question, both sides moved for summary judgment. The following facts are drawn largely from the parties' pleadings and their summary judgment filings and, unless otherwise noted, are not in dispute.

A. The Credit Default Swap Agreement

At the times pertinent to this action, WCM was a registered broker-dealer and a member of FINRA (or of one of its predecessor organizations, see Part II.B. below). Wachovia Bank was a national banking association and not a member of FINRA. VCG was a hedge fund with, by July 2007, more than $58 million in assets under management. VCG was run by a board of directors but had no employees; services were provided to VCG by Vanquish Capital Group LLC (" Vanquish Capital" ), whose chief executive and investment

Page 167

officer was VCG board member Donald Uderitz. VCG's investments were managed by Vanquish Advisors LLC (" Vanquish Advisors" ), which was principally owned by Uderitz.

In May 2007, Vanquish Capital employee Jonnathan Wong, acting on behalf of VCG, contacted Scott Williams, a WCM employee, to initiate negotiations for a credit default swap agreement between VCG and Wachovia Bank with respect to a collateralized debt obligation (" CDO" ), to wit, notes issued by Forge ABS, LLC (" Forge" ), an unrelated entity. See generally Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust Co., 375 F.3d 168, 171-72 (2d Cir.2004) (a credit default swap, " the most common form of credit derivative, [is a] contract which transfers credit risk from a protection buyer to a credit protection seller" (internal quotation marks omitted)). The eventual credit default swap agreement between VCG and Wachovia Bank (the " Trade" or " Agreement" or " 2007 credit default swap agreement" ) required the Bank (the protection buyer) to pay a fixed, periodic fee to VCG (the protection seller) over the term of the CDO in exchange for VCG's agreement to make payments to the Bank upon the occurrence of certain events, including a default by Forge on the CDO. VCG was required to deposit $750,000 with Wachovia Bank as collateral security for VCG's obligations.

The Agreement was memorialized in four separate documents. Three dated May 4, 2007, were documents using International Swaps and Derivatives Association (" ISDA" ) templates, to wit (1) an ISDA Master Agreement that set the general trading terms between the parties to govern their anticipated credit default swap, (2) an ISDA Master Agreement Schedule (" ISDA Schedule" ) that altered or supplemented the standard ISDA Master Agreement terms to fit the parties' specifications, and (3) a Credit Support Annex to the ISDA Master Agreement (" Credit Support Annex" ) that provided the terms under which the parties would exchange collateral as part of the credit default swap. The fourth document was a Trade Confirmation dated May 30, 2007 (" Trade Confirmation" ) that confirmed the specific terms of the parties' Forge credit default swap— which had taken place on May 21, 2007; the Trade Confirmation incorporated by reference the terms of the three previously executed documents. The ISDA Master Agreement provided that all of these Trade documents would constitute a single agreement between VCG and Wachovia Bank.

On behalf of VCG, the terms of the ISDA Master Agreement, the ISDA Schedule, and the Credit Support Annex were negotiated by Vanquish Capital's General Counsel, and those documents were executed by Uderitz. On behalf of Wachovia Bank, the terms of those three documents were negotiated by Alexis S. Alpert, a Wachovia Bank vice president, who also executed those documents on behalf of the Bank. The Trade Confirmation was executed by Uderitz on behalf of VCG and by Wachovia Bank employee Tracey Bissell on behalf of the Bank. The terms of the Trade Confirmation had been negotiated by Wong on behalf of VCG and by WCM employees Williams, Thomas Edwards, and William McAndrews. Williams and Edwards were directors of WCM's CDO Trading Desk who reported to Sergei Zagin, the head of that Desk; McAndrews was both a director with WCM and an officer of Wachovia Bank; all four had authority to negotiate credit default swaps on behalf of the Bank. Plaintiffs contend that Williams, Edwards, and McAndrews negotiated the terms of the Trade Confirmation on behalf of the Bank. Although VCG refused to admit that those three had

Page 168

negotiated on behalf of the Bank, VCG did not point to evidence calling that contention into serious question. There is no dispute, for example, that " WCM's CDO desk was regularly engaged in trading credit default swaps on CDOs," and that the party " on one side" of " such trades" was " Wachovia Bank." (VCG's Statement of Material Facts Pursuant to Rule 56.1, ¶ 11, in support of its motion for summary...

To continue reading

FREE SIGN UP