Sejin Precision Industry Co. v. Citibank, N.A.
Sejin Precision Industry Co. v. Citibank, N.A.
Opinion of the Court
MEMORÁNDUM ORDER
In a bottom-line order dated November 4, 2016, the Court granted defendants’ motion to dismiss plaintiffs’ complaint in its entirety under Federal Rule of Civil Procedure 12(b)(6). This Memorandum Order explains the reasons for that ruling and directs the entry of final judgment dismissing the case.
The Complaint alleges' the following facts relevant to this motion. Plaintiffs— Sejin Precision Industry Co., Ltd. (“Se-jin”); Mtekvision Co., Ltd. (“Mtek”); Sungjin Textile Industry Co., Ltd. (“Sungjin”); Samhwan Steel Co., Ltd. (“Samhwan”); -Techno Electronics Co., Ltd. (“Techno”); and II Shin Spinning Co., Ltd. (“II Shin”)—are six South. Korean manufacturers who export their, products. Compl. ¶¶ 10-15, .33-37, ECF No. 1, They receive payment for their goods in various currencies, including U.S. dollars (or “USD”), and exchange those currencies for
In 2005, non-party Citibank Korea, Inc. (“CKI”), a subsidiary of defendant Citigroup, Inc. (“Citigroup”), Compl. ¶21, introduced a new financial product called a “KIKO,” whose name is an acronym for “knock-in, knock-out.” Compl. ¶48. In a KIKO transaction, both counterparties— CKI and the purchaser—receive options to exchange currency. The purchaser receives an option to exchange a specified quantity of won for a specified quantity of dollars on a fixed date, provided that the dollar depreciates relative to the won to a certain extent. Compl. ¶¶ 114,126. However, if the dollar depreciates even further to a specified point known as the “knock-out” price, the purchaser loses the ability to exercise its option. Compl. ¶ 115. If, on the other hand, the dollar appreciates against the won and reaches a value known as the “knock-in” price, CKI can then exercise its option to exchange the currencies. Compl. ¶116.
Two features of the KIKO entailed that CKI stood to benefit more from fluctuations in the exchange rate than the purchaser did. First, unlike the purchaser’s options, there was no “knock-out” price applicable to the option held by CKI. Compl. ¶ 117. Second, the KIKO contracts allowed CKI, when exercising its option, to exchange twice as much currency as the purchaser could under its option. Compl. ¶ 146. In other words, CKI was protected against, and, indeed, stood to profit by all but moderate changes in the exchange rate.
The thrust of plaintiffs’ claims is that CKI, acting at the direction of defendants, led plaintiffs to believe that the KIKOs were risk-free ways to hedge against fluctuations in the exchange rate, whereas in fact they subjected plaintiffs to substantial losses that accrued to OKI’s benefit. Specifically, plaintiffs allege that CKI made several misrepresentations, including that the KIKOs would serve as a hedge, Compl. ¶¶ 280-85, that the dollar would continue to appreciate relative to the won, Compl. ¶ 90, and that the KIKO transactions were “zero-cost,” Compl. ¶¶ 311-19. Plaintiffs also assert that CKI failed to disclose material information, including that OKI’s interests were contrary to plaintiffs’ interests, Compl. ¶ 345, that Citibank was taking a position with regard to the USD-KRW exchange rate that was contrary to plaintiffs’ position, Compl. ¶347, that CKI calculated the exchange rate, Compl. ¶353, and the magnitude of the potential losses that plaintiffs might face given extreme changes in the exchange rate, Compl. ¶ 354.
Plaintiffs also allege that CKI misled them in various other ways. According to plaintiffs, after negotiating the essential terms of a given KIKO deal, CKI sent them a document entitled “FX Options,” which described the details of the deal in Korean and which they believed was the operative contract for the KIKO deal. Compl. ¶¶ 106-110. However, plaintiffs allege that CKI then sent them a document in English entitled “FX Confirmation” that contained new terms, including previously unmentioned premiums and a disclaimer of any fiduciary relationship. Compl. ¶¶ 111-12; see, e.g., Compl. ¶¶ 986-87. Plaintiffs allege that they could not understand this agreement because it was in English but that CKI nonetheless treated it as the operative agreement. Compl. ¶ 222. Plaintiffs also allege that CKI, after it executed KIKO transactions with plaintiff, entered into “reverse” or “mirror image” transactions with Citibank (the “reverse transactions”), whereby CKI would transfer to Citibank its potential gains and liabilities from the KIKO transactions with plaintiffs, thus putting Citibank in an adverse position with regard to plaintiffs, but that CKI did not alert plaintiffs to the existence of these transactions. Compl. ¶ 173. Finally, plaintiffs allege that between 2004 and 2012, defendants manipulated the WM/Reuters Closing Spot Rates (the “WM/R Rates”), which are widely used benchmark rates for the exchange of currency, and that such manipulation affected the value of the won relative to the dollar. Compl. ¶¶ 595, 600, 605.
Plaintiffs initiated this action on September 2, 2016. See Compl. Their 267-page, 2320-paragraph Complaint contains 102
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that-is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In making this determination, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in favor of the claiming party. See Duffey v. Twentieth Century Fox Film Corp., 14 F.Supp.3d 120, 126 (S.D.N.Y. 2014). The Court need not credit, however, “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “[LJegal conclusions masquerading as factual conclusions will not suffice.” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006).
As a threshold matter, defendants contend that all of plaintiffs’ claims are time-barred. At the motion-to-dismiss stage, “dismissal is appropriate only if a complaint clearly shows the claim is out of time.” Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). The parties here agree that New York’s law regarding limitations periods applies. Under New York law, “[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the .place without the state where the cause of action accrued.” N.Y. C.P.L.R. § 202. In other words, a claim that accrued outside New York must be brought within both New York’s limitations period and the limitations period of the other jurisdiction. Plaintiffs, which are incorporated in and have their principal places of business in South Korea, see Compl. ¶¶ 10-15, do not dispute that their causes of action accrued in South Korea. See Glob. Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 529, 715 N.E.2d 482, 693 N.Y.S.2d 479 (1999) (noting that New York courts have “consistently employed the traditional definition of accrual—a cause of action accrues at the time and in the place of the injury—in tort cases involving the interpretation of CPLR 202” and that “[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the. loss”). Thus, to be timely, plaintiffs’ claims must have been brought within the statutes of limitations of both New York and South Korea. Because the' claims were not brought within the relevant limitations pe-
In New York, the limitations period for a fraud claim is “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff ... discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. § 213(8). “A tort claim accrues as soon as ‘the claim becomes enforceable, i.e.y when all elements of the tort can be truthfully alleged in a complaint.’ ” IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 140, 907 N.E.2d 268, 879 N.Y.S.2d 355 (2009) (quoting Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993)).
For plaintiffs’ fraud claims to be within the six-year period set forth in N.Y. C.P.L.R. § 213(8), they must have accrued no earlier than September 2, 2010. As noted above, plaintiffs entered into KIKO contracts with CKI between November 2004 and March 2008, and, given the dollar’s appreciation relative to .the won beginning in March. 2008, they thereafter suffered losses from those contracts. Plaintiffs contend that it is not clear from. the Complaint that their fraud claims accrued before the relevant period because it is not clear that they had suffered damages at that time. Specifically, they argue that the Complaint leaves open when plaintiffs suffered damages, since it “does not describe when the Plaintiffs’ damages occurred, [but] only when the facts leading up to their damages occurred.” PL. Opp. at 8 (emphasis in original). Yet the Complaint alleges' facts showing that each plaintiff suffered losses from the KIKOs by August 2010 at the latest, more than six years before plaintiffs initiated this action. See Compl. ¶ 655 (alleging that Sejin experienced losses between December 2007 and February 2008); Compl. ¶ 750 (alleging that CKI made its last trade under a KIKO contract with Mtek on January 21, 2010); Compl. ¶¶ 786-87, 794, 801, 804 (alleging that, in August 2007, Sungjin entered into three KIKO contracts that had at most three-year terms, and thus OKI’s exercise of its option's under those • contracts must have taken place before or during August 2010); Compl. ¶ 867 (alleging that Samhwan suffered KIKO-related losses in 2009); Compl. ¶¶ 917-20 (alleging that Techno experienced losses between March and June 2008); Compl. ¶ 970 (alleging that II Shin experienced losses in March, September, and October of 2008). Thus, plaintiffs’ fraud claims accrued outside of the six-year limitations period.
In the alternative, under the “discovery rule,” the fraud claims may be timely if they were brought within two years of the date plaintiffs “discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. § 213(8). “The test as to when fraud should with reasonable diligence have been discovered is an objective one.” Gutkin v. Siegal, 85 A.D.3d 687, 926 N.Y.S.2d 485, 486 (1st Dep’t 2011) (quoting Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir. 1983)). “Where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him.” Id. (quoting Armstrong, 699 F.2d at 88). Accordingly, “public reports and lawsuits of alleged fraud are sufficient to put a plaintiff on inquiry notice of fraud,” and, “[similarly, losses that a plaintiff sustains may put it on notice of possible fraud.” Aozora Bank, Ltd. v. Deutsche Bank Secs. Inc., 137 A.D.3d 685, 29 N.Y.S.3d 10, 14 (1st Dep’t 2016).
Plaintiffs resist this conclusion, arguing that no amount of diligence could have uncovered the alleged fraud. See Compl. ¶586 (“None of the facts or information available to Plaintiffs, if investigated -with reasonable diligence,, could or would have led to the discovery of the conduct alleged in this Complaint.”). This is because, they assert, defendants concealed their wrongdoing, and therefore the statute of limitations is tolled by the doctrines of fraudulent concealment, equitable estoppel, and equitable tolling.
’“[T]he purpose of the -fraudulent-concealment doctrine is to prevent a defendant from concealing a fraud, or committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it.” New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988) (alterations and quotation omitted). That doctrine “operates to toll the statute if the plaintiff alleges: (1) that the defendants concealed the cause of action; (2) that the plaintiff did not discover the cause of action until some point within five years of commencing the ac
Plaintiffs here do not allege, except in a conclusory fashion, that defendants took affirmative steps to conceal the alleged fraud or the resulting injury from plaintiffs. See Compl. ¶¶ 583-592. They rely instead on the argument that defendants’ fraud was self-concealing, by virtue of the fact that Citigroup’s corporate structure obscured defendants’ role in the transactions with plaintiffs and that the reverse transactions were unknown to plaintiffs. Yet plaintiffs cite no authority in support of their assertion that the alleged fraud here amounts to a self-concealing wrong.
Furthermore, even if the alleged fraud had been concealed, Simmtech’s filing of the two actions in 2013 ensured that the operative facts giving rise to plaintiffs’ claims were in the public domain well before the limitations period for fraud claims arising out of the KIKO transactions would have run. Cfi Hendrickson Bros., 840 F,2d at 1085 (concluding that the conspiracies alleged in the complaint were self-concealing while also approving of the trial court’s instruction to the jury that the plaintiff could not meet its burden to show its due diligence if it had a suspicion of collusion or “any other information that should have alerted it to its claim of an overall conspiracy”). Thus, plaintiffs’ contention that defendants’ fraudulent concealment of them wrongdoing made it impossible for plaintiffs to discover the alleged fraud despite exercising reasonable diligence rings hollow, and their argument for the application of the fraudulent concealment doctrine fails for that reason as well,
Where, as here, “the claims are prima facie barred by the statute of limitations, the plaintiff must make sufficient factual allegations that each of the requirements of equitable estoppel is satisfied.” Twersky v. Yeshiva Univ., 993 F.Supp.2d 429, 442 (S.D.N.Y. 2014), aff'd, 579 Fed.Appx. 7 (2d Cir. 2014). Plaintiffs have failed to do so here, for the reasons explained-above with regard to the application of. the fraudulent concealment doctrine: plaintiffs have not alleged any specific actions taken by defendants subsequent to the alleged fraud' that prevented plaintiffs from timely bringing suit on their claims.
Finally, plaintiffs also contend that equitable tolling should render timely their-claims. That doctrine permits a plaintiff to avoid the effect of a statute of limitations “if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim,” even in the absence of fraudulent concealment by the defendant. Valdez ex rel. Donely v. United States, 518 F.3d 173, 182 (2d Cir. 2008) (quotation omitted). But “the doctrine of equitable tolling is not available in state'causes of action in New York.” Jang Ho Choi v. Beautri Realty Corp., 135 A.D.3d 451, 22 N.Y.S.3d 431, 432 (1st Dep’t 2016). Thus, that doctrine cannot render timely plaintiffs’ claims, all of which are for causes of action under New York law. In sum, plaintiffs’ fraud claims were not brought within' the applicable six-year period, and neither the discovery rule nor the doctrinés of fraudulent concealment, equitable estoppel, and equitable tolling save those claims from being untimely.
Plaintiffs’ claims for negligence, breach of fiduciary duty and unjust enrichment are untimely as well. Plaintiffs do not dispute that the applicable limitations period for each of those claims is at most six years. See PI. Opp. at 9 (asserting that “the statute of limitations for negligence,
In short, each and every one of plaintiffs’ claims is time-barred.
In addition, and as an independent reason for the dismissal of the Complaint, plaintiffs have failed to state a claim for any of the causes of action they assert.
The Court first considers plaintiffs’ fraud claims. “Under New York law, ‘to state a cause of action for fraud, a plaintiff must allege a representation of material fact, the falsity of the representation, knowledge by the party making the representation that it was false when made, justifiable reliance by the plaintiff and resulting injury.’” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 291 (2d Cir. 2006) (quoting Kaufman, 760 N.Y.S.2d at 165). In turn, “[t]o establish causation, [a] plaintiff must show both that [the] defendant’s misrepresentation induced [the] plaintiff to engage in the transaction in question (transaction causation) and that the misrepresentations directly caused the loss about which [the] plaintiff complains (loss causation).” Laub v. Faessel, 297 A.D.2d 28, 745 N.Y.S.2d 534, 536 (1st Dep’t 2002). Under Federal Rule -of Civil Procedure 9(b), when pleading a fraud claim, a plaintiff must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the Speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Rombach v. Chang, 355 F.3d 164, 170 (2d. Cir. 2004) (internal quotation marks omitted).
Most of plaintiffs’ fraud claims center on alleged statements by representatives of CKI that the dollar would depreciate relative to the won, that the KIKOs were a “hedge” against the risk of fluctuation in the exchange rate, and that they were a “zero, cost” instrument.
That conclusion points to an additional defect in plaintiffs’ fraud claims based on predictions of the dollar’s value: plaintiffs’ reliance on these alleged misrepresentations was clearly, unreasonable. Given that plaintiffs chose to enter into contracts to hedge- against the risk of fluctuation in the USD-KRW exchange rate, it is clear that they, were aware that the rate could change significantly. Moreover, by the very structure of the KIKO, it was apparent that CKI was taking the other side of each KIKO transaction, he., betting that the dollar would appreciate relative to the won'. It therefore would be unreasonable for plaintiffs to rely on a representation by OKI'that implied CKI continued to make-bets that it was sure it'would lose. Thus, plaintiffs’- fraud claims based on alleged misrepresentations about the future value of the dollar relative to the won must fail.-,
Plaintiffs’ fraud claims based on the al-feged statements that the KIKOs were “hedges” againét risk fail for similar reasons. Since the KIKO did in fact serve as a hedge against the depreciation' of the dollar relative to the won, at least when the dollar was within a certain rangé of values, the description of the KIKO as a hedge is only false to the extent that one takes the position that a hedge eliminates all risk, as plaintiffs appear to assert. However, as noted above, it would be unreasonable for plaintiffs to rely on a representation that the KIKO eliminated all risk of loss, especially because the basic structure of the KIKO entailed that plaintiffs would suffer losses if the dollar strengthened to a certain extent.
Plaintiffs’ fraud claims based on statements that the KIKOs were “zero-cost” also fail. The Complaint alleges that
Nor do plaintiffs state claims for fraud based- on omissions. Two alleged omissions—that CKI’s interests were contrary to Plaintiffs’ interests, see Compl. ¶345, and that plaintiffs might suffer significant losses in the event of extreme changes in the exchange rate, see Compl. ¶ 354—were readily apparent from the basic terms of the KIKO transactions, of which plaintiffs do not contend they were ignorant. Plaintiffs have not sufficiently pleaded that the two other alleged omissions that they assert—that Citibank was taking a position -with regard to the USD-KRW exchange rate that was contrary to Plaintiffs’ position, see Compl. ¶ 347, and that CKI calculated the exchange rate, see Compl. ¶ 353—were material. Given that CKI was taking a position contrary to plaintiffs’ position, whether Citibank did so as well does not provide any more reason to doubt the wisdom of entering the arrangement with CKI. Plaintiffs have not identified any allegation in the Complaint that shows that the calculation of the exchange rate by CKI, rather than by a third party, led to plaintiffs’ losses.
Plaintiffs’ fraud claims based on the alleged reverse transactions between CKI and Citibank also fail. Whether CKI retained any proceeds it received from the KIKO transactions with plaintiffs or whether CKI instead conveyed any such proceeds to Citibank is immaterial to whether plaintiffs suffered losses from those transactions. Thus, plaintiffs’ conclu-sory allegation that they would not have entered the KIKO transactions had they known of the reverse transactions is implausible. In addition, even if the omission of information regarding the reverse transactions caused plaintiffs to enter the KIKO transactions, plaintiffs have only pleaded that the omission was the but-for cause of their losses, whereas a plaintiff must also plead loss causation, he., “that the defendant’s misrepresentation ‘directly and proximately caused his ... losses.’ ” Amusement Industries v. Stern, 693 F.Supp.2d 327, 352 (S.D.N.Y. 2010) (quoting Laub, 745 N.Y.S.2d at 537). Plaintiffs’ assertion that courts have abandoned the requirement of loss causation except in the context of fraud claims relating to securities is mistaken. See id. Thus, their inability to plead that the reverse transactions caused their losses, rather than merely transferred their losses to a different entity, entails that plaintiffs have not stated a fraud claim in this regard.
In sum, each of the causes of action based in fraud fails to state a claim. Accordingly, the causes of action for aiding and abetting fraud and conspiracy to commit fraud fail as well, as they rely on the same allegations that are insufficient to support plaintiffs” fraud claims. See Eaves v. Designs for Fin., Inc., 785 F.Supp.2d 229, 257 (S.D.N.Y. 2011) (“[T]o establish a claim for civil conspiracy, a plaintiff must first demonstrate an underlying tort upon which the conspiracy may be based.”); Wight v. BankAmerica Corp., 219 F.3d 79, 91 (2d Cir. 2000) (noting that “a claim for aiding and abetting fraud requires plaintiff to plead facts showing the existence of a fraud,” among other elements (internal quotation marks omitted)).
Turning next to plaintiffs’ negligence claims, plaintiffs advance a theory of negligent misrepresentation, arguing that a special relationship gave rise to a duty on defendants’ part to impart correct information. See PI. Opp. 27-28. “To prevail on a claim of negligent misrepresentation under New York law, a plaintiff must show ‘(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.’ ” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 490 (2d Cir. 2014) (quoting J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148, 863 N.E.2d 585, 831 N.Y.S.2d 364 (2007)). For the reasons discussed above with regard to plaintiffs’ fraud claims, plaintiffs have not sufficiently alleged the existence of actionable misrepresentations or omissions on which they reasonably relied, and therefore they cannot sustain their negligent misrepresentation claims.
The Court next considers plaintiffs’ breach of fiduciary duty claims, in which they claim that defendants, “by and through CKI, established a fiduciary duty to [plaintiffs] by the provision of expert financial advice,” and thereafter breached that duty by providing false or inadequate advice. Compl. ¶¶ 1091-93, 1319-21, 1544-45, 1765-67, 1990-92, 2212-15. Defendants contend that these claims must fail because no fiduciary relationship existed between plaintiffs and either CKI or defendants. “A fiduciary relationship arises between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” Roni LLC v. Arfa, 18 N.Y.3d 846, 848, 963
Plaintiffs argue that they have pleaded the existence of a fiduciary relationship by alleging that CKI provided plaintiffs with advice on certain matters, including the future movements of the USD-KRW exchange rate and the operation of the KIKO agreements, that were particularly within OKI’s and defendants’ knowledge. See Compl. ¶¶ 361-64. Yet the alleged provision of such advice (much of which, as discussed above, was not to be reasonably relied on) cannot demonstrate “a higher level of trust than normally present in the marketplace between those involved in arm’s length business transactions” given the obvious adverseness of CKI and plaintiffs in the KIKO transactions. EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 832 N.E.2d 26, 799 N.Y.S.2d 170 (2005). The basic structure of the transactions entailed that CKI’s gains came at plaintiffs’ expense. Accordingly, CKI and plaintiffs did not, through their dealings, establish a relationship whereby CKI was to “act for or to give advice for the benefit of’ plaintiffs. Roni LLC, 18 N.Y.3d at 848, 939 N.Y.S.2d 746, 963 N.E.2d 123.
EBC I, which plaintiffs cite in support of their contention that CKI and plaintiffs established a relationship of higher trust outside of their contractual relationship, does not suggest a. contraiy result. In that case, the plaintiff enlisted the defendant to advise it in advance of, as well as to underwrite, an initial public offering, and, given the terms of the offering, the plaintiff had reason to believe that its interests were aligned with those of the defendant. EBC I, 5 N.Y.3d at 20-21, 799 N.Y.S.2d 170. Here, in contrast, the zero-sum nature of the transactions indicates that CKI’s and plaintiffs’ interests were not aligned, and they were therefore dealing at arms’ length, which defeats the existence of a fiduciary relationship and, in turn, plaintiffs’ claims for breach of fiduciary duty. Given the failure of those elaims, plaintiffs’ claims for conspiracy to breach fiduciary duties and aiding and abetting the breach of fiduciary duties fail as well. See Eaves, 785 F.Supp.2d at 257; In re Sharp Int’l Corp., 403 F.3d 43, 49 (2d Cir. 2005) (noting that one element of a claim for aiding and abetting a breach of fiduciary duty is a fiduciary’s breach of obligations to another).
Turning next to plaintiffs’ unjust enrichment claims, “[t]he basic elements of an unjust enrichment claim in New York require proof that (1) defendant was enriched, (2) at plaintiffs expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004). In support of their claims, plaintiffs put forth the threadbare .allegations that Citibank was enriched by the reverse transactions and that this enrichment came at plaintiffs’ expense. See, e.g., Compl. ¶¶ 1116-17. Because the reverse transactions between CKI and Citibank, on their own, in no way came at plaintiffs’, expense, plaintiffs’ theory in this regard appears to be that CKI wrongfully obtained funds from plaintiffs (by virtue of the various allegedly fraudulent representations and omissions that are the basis for plaintiffs’ fraudulent inducement claims), that Citibank then obtained those funds, and that it would be unjust for Citibank to retain those funds.
Lastly, the Court addresses plaintiffs’ claims for recission. Since “rescission is simply an equitable remedy that might be available if a claim for legal liability were established,” it must fail where, as here, plaintiffs have failed to sufficiently plead any other causes of action. Girl Friends Prods., Inc. v. ABC, Inc., No. 99 Civ. 1541 (JSR), 2000 WL 1505978, at *5 n.3 (S.D.N.Y. Oct. 10, 2000). Moreover, even assuming plaintiffs were correct that one may assert an independent cause of action for recission based on. fraudulent inducement, unilateral mistake, or uncon-scionability, see PI. Opp. 32, plaintiffs have failed to sufficiently plead fraudulent inducement for the reasons discussed above, and the Complaint does not identify any unilateral mistake nor any grounds for concluding the KIKO contracts are unconscionable. Accordingly, plaintiffs have failed to plead recission.
•In sum, each of plaintiffs’ claims is time-barred and fails to state a claim for which relief can be granted. For those reasons, the Court dismissed plaintiffs’ Complaint in its entirety, with prejudice.
SO ORDERED.
. To demonstrate the function of KIKOs and some of the terms that plaintiffs allege they contain, consider the following hypothetical example. On January 1, when the exchange rate is 1 USD = 1000 KRW, an exporter ships goods for which it expects to receive a $1000 payment on February 1. The exporter then enters a KIKO deal with CKI so that it has the option on February 1 to exchange $1000 for 1 million KRW (i.e., to make the exchange at the rate current on January 1), provided that the exchange rate on February 1 is 1 USD < 900 KRW. However, the KIKO provides that there is a knock-out price, so that the exporter can no longer exercise the option if the exchange rate reaches 1 USD < 800 KRW. Conversely, as part of the KIKO deal, CKI also receives an option to exchange 2 million KRW for $2000 on February 1, provided that the exchange rate reaches the knock-in price of 1 USD > 1100 KRW.
If, on February 1, the dollar has depreciated such that the exchange rate is 1 USD = 900 KRW, then the exporter will exercise its option so that it can receive 1 million KRW for its $1000 (rather than the 900,000 KRW that it would receive if it made the exchange at the then-current rates). But if the. dollar has depreciated even further such that the'exchange, rate is I'USD = 700 KRW, le., below the knock-out price, then the exporter- is unable to exercise its option and it suffers the loss from the dollar’s- depreciation: thus, the $1000 that it receives on February 1. is only worth 700,000 KRW. "
On the other hand, if;- on February 1, the dollar has appreciated such that the' exchange rate is 1 USD ==1100 KRW, then CKI will exercise its option to receive $2000 for 2 million KRW (rather' than the 2.'2 million KRW that it wbuld cost to receive $2000 at the then-current rates). Though the $1000 payment that the exporter receives on February 1 for the goods it shipped is worth 100,-000 KRW more than the payment would have been worth under the rates on January 1, the exporter loses 200,000 KRW from the exercise of CKI’s option and therefore suffers a net loss of 100,000 KRW.
. Specifically, the claims are for fraud in the execution (Counts 1, 18, 35, 52, 69, 86); fraud in the inducement, conspiracy to commit fraud in the inducement, and aiding and abetting fraud based on misrepresentations and omissions regarding the KIKO products and risks attendant to them (Counts 2-4, 19-21, 36-38, 53-55, 70-72, 87-89); fraud, conspiracy to commit fraud, and aiding and abetting fraud regarding the' reverse transactions (Counts 11-13, 28-30, 45-47, 62-64, 79-81, 96-98); fraud, conspiracy to commit fraud, and aiding and abetting fraud regarding manipulation of exchange rates (Counts 14-17, 31-34, 48-51, 65-68, 82-85, 99-102); negligence (Counts 5, 22, 39, 56, 73, 90); breach of fiduciary duty, conspiracy to breach fiduciary duty, and aiding and abetting breach of fiduciary duty (Counts 6-8, 23-25, 40-42, 57-59, 74-76, 91-93); unjust enrichment/restitution (Counts 9, 26, 43, 60, 77, 94); and recission/disgorgement (Counts 10, 27, 44, 61, 78, 95).
. The Court takes judicial notice of these filings. See Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d Cir. 2003) (“Judicial notice may be taken of public filings.”).
. Plaintiffs’ appeals to In re Nine West Shoes Antitrust Litigation, 80 F.Supp.2d 181, 193 (S.D.N.Y. 2000), and Power, 525 F.Supp.2d at 426, are misplaced. In Nine West, the plaintiff sufficiently alleged a price-fixing scheme, which the Second Circuit has held is a self-concealing offense. See Hendrickson Bros., 840 F.2d at 1084-85. And in Power, the plaintiff alleged affirmative acts by a defendant to conceal the fraudulent nature of a transaction. 525 F.Supp.2d at 426. Plaintiffs here have failed to plead either a recognized self-concealing offense or an affirmative acts.
. In addition, where a plaintiff seeking to apply equitable estoppel does not allege that a defendant made an actual misrepresentation, “the plaintiff must demonstrate a fiduciary relationship which gave the defendant an obligation to inform him or her of facts underlying the claim.” Zumpano, 6 N.Y.3d at 675, 816 N.Y.S.2d 703, 849 N.E.2d 926 (internal quotation marks and alteration omitted). As explained infra, no fiduciary relationship existed between plaintiffs and defendants here.
. In their briefing, plaintiffs do not dispute defendants' assertion that the claims styled “fraud in the execution” are nonetheless grounded in a fraudulent inducement theory.
. Here, too, plaintiffs have failed to provide apposite authority, as they identify no cases that, applying New York law, hold that subjective disbelief in an otherwise non-actionable statement allows a fraud claim based on that statement. Rather, they cite only federal cases dealing with alleged violations of the federal securities laws and associated regulations. See PI. Opp. 21 n.37.
. In addition, plaintiffs assert in their Complaint that CKI representatives falsely described the KIKOs as “government-supported” to two of the plaintiffs, Sejin and Mtek. Plaintiffs do not defend this basis for their fraud claims in their briefing. In any case, this alleged misstatement does not support a fraud claim. As presented in the Complaint, those statements amount to additional assurances that the KIKOs did not subject plaintiffs to the risk of losses. See, e.g,, Compl. ¶ 624 ("Mr. Choi told Mr. Yu that, because this was a government-supported product, CKI would neither lose money nor make money from the product.”). As explained above, plaintiffs' reliance on representations that they would not lose money from the KIKOs was unreasonable.
. Given that the Court has identified ample reasons to dismiss plaintiffs’ claims, it does not reach the additional’grounds for dismissal put forth by defendants.
Reference
- Full Case Name
- SEJIN PRECISION INDUSTRY CO., LTD., Mtekvision Co., Ltd., Sungjin Textile Industry Co., Ltd., Samhwan Steel Co., Ltd., Techno Electronics Co., Ltd., and II Shin Spinning Co., Ltd. v. CITIBANK, N.A., Citigroup, Inc., Citibank Overseas Investment Corp., Citicorp Holdings, Inc., and Citigroup Global Markets, Inc.
- Cited By
- 8 cases
- Status
- Published