     Case: 15-30532     Document: 00513403898        Page: 1    Date Filed: 03/02/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 15-30532                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
NEW ORLEANS CITY,                                                        March 2, 2016
                                                                        Lyle W. Cayce
              Plaintiff - Appellant                                          Clerk

v.

AMBAC ASSURANCE CORPORATION; AMBAC FINANCIAL SERVICES,
L.L.C.,

              Defendants - Appellees




                  Appeal from the United States District Court
                     for the Eastern District of Louisiana


Before    CLEMENT         and    HAYNES,        Circuit    Judges,     and         GARCIA
MARMOLEJO, District Judge. *
EDITH BROWN CLEMENT, Circuit Judge:
      To help fund a pension plan for firefighters, the City of New Orleans
(“the City”) decided to issue municipal bonds in December 2000. City officials
enlisted the help of an accounting firm, three law firms, and a financial
advisory firm to consult in the bond issuance. At the time, the City’s credit
rating was just above “junk” status. 1 The City contracted with Ambac



      * District Judge of the Southern District of Texas, sitting by designation.
      1 Moody’s and Standard and Poor’s (“S&P”) gave the City an unenhanced credit rating
of Baa3 and BBB, respectively.
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Assurance Corporation (“Ambac”) 2 to provide municipal bond insurance. The
City paid Ambac a nonrefundable, up-front premium of $6,388,658.80 for the
Municipal Bond Insurance Policy (the “Policy”). Under the Policy, Ambac
guaranteed payment of principal and interest to the bondholders in the event
of non-payment by the City. When the Policy was issued, Ambac enjoyed a Aaa
credit rating from Moody’s. Accordingly, potential investors viewed the City’s
bonds as less risky because they were guaranteed by an insurer with the
highest possible credit rating. 3
       Starting in late 2007, securities analysts and market commentators
began to question the exposure of bond insurers to sub-prime residential
mortgage backed securities and similar consumer finance asset-backed
securities. As a result, Ambac’s credit rating began to fall. As Ambac’s credit
rating fell, so too did the rating of the City’s bonds, despite not missing a
payment to the bondholders. The bonds became costlier for the City to service,
and Paine Webber eventually stopped remarketing them. Consequently, the




       2  Ambac Financial Services, LLC, a wholly-owned affiliate of Ambac, also played a role
in this bond deal. For simplicity, Ambac Assurance Corporation and Ambac Financial
Services, LLC will be referred to as “Ambac.”
        3 The City chose a structure for its bonds that was extremely complex and out-of-the-
ordinary. Instead of issuing fixed rate bonds, the City issued approximately $171,000,000 of
variable rate debt obligations (“VRDOs”). The VRDOs’ rate would fluctuate each week to
reflect the prevailing interest rate. This structure required weekly remarketing of the bonds,
a job Paine Webber performed for the City pursuant to the Remarketing Agreement. The City
also entered into the Standby Bond Purchase Agreement with a predecessor-in-interest of JP
Morgan Chase, so that Paine Webber could put the bonds to a liquidity facility in the event
of a remarketing failure. To avoid the uncertainty of a floating interest rate, the City entered
into an Interest Rate Swap Agreement (the “Swap”) with Paine Webber. Under the
agreement, the City agreed to pay a fixed rate while Paine Webber paid the variable rate.
Ambac also wrote a pair of surety bonds that guaranteed payment by both sides of the Swap.
Further complicating matters, Ambac also entered into a separate swap agreement with
Paine Webber, whereby Paine Webber agreed to swap to Ambac its exposure on the variable
rate that Paine Webber had agreed to pay under the Swap with the City.

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City has paid tens of millions of dollars in additional debt service and
refinancing costs.
      On July 17, 2008, the City sued Ambac and other defendants in the
United States District Court for the Eastern District of Louisiana. Later, the
City filed a second amended complaint asserting numerous claims and seeking
money damages. Among the claims against Ambac, the City alleged that
Ambac breached an agreement to provide a credit enhancement, that there
was error in the principal cause, that Ambac acted in bad faith, and that the
City had detrimentally relied on Ambac’s representations and assurances
regarding the value of its credit enhancement product. In 2010, Ambac filed a
motion to dismiss, which the district court granted on all claims against it.
Following entry of the final judgment on May 20, 2015, the City appealed.
                                         I.
      We review a district court’s order on a motion to dismiss for failure to
state a claim under Rule 12(b)(6) de novo. In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007). We accept “all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Id. (internal
quotation marks omitted). In order to survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (citation omitted).
      Here, we may consider the terms of the Policy in assessing the motion to
dismiss because Ambac attached it to its motion to dismiss, it was referred to
in the complaints, and it is central to the City’s claims. See In re Katrina, 495
F.3d at 205.


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                                       II.
                                       A.
      First, the City argues that the district court erred by dismissing its
breach of contract claim, ignoring Louisiana law which provides that a contract
can be comprised of multiple oral and written agreements. The City contends
that Ambac agreed to provide credit enhancement, thereby obligating it to use
diligence and reasonable care in its underwriting standards—which, in turn,
would preserve its high credit rating. And this credit enhancement agreement
was recognized in the Policy, the City’s resolutions—which Ambac helped
draft—and other oral and written agreements. According to the City, Ambac
breached its credit enhancement agreement by mismanaging its business and
increasing its exposure to the high-risk structured finance credit enhancement
business. The City maintains that the existence of this larger credit
enhancement contract is ultimately a fact issue, not a question of law for the
district court. Therefore, the district court erred when it determined that a
larger credit enhancement contract did not exist.
      Federal law dictates whether the contract interpretation here is a
question of law or fact, and generally, interpreting a contract is a matter of law
for the court. See Cunningham & Co. v. Consol. Realty Mgmt., Inc., 803 F.2d
840, 842 (5th Cir. 1986). The district court’s interpretation of the Policy to
determine that no larger credit enhancement agreement existed was
appropriate. Relying on the lack of any written amendment to the Policy
memorializing the purported larger credit enhancement and on Louisiana
statutory law—providing that the insurance policy governs the obligations of
an insurer and those obligations cannot be expanded absent a written
amendment attached to a policy—the district court dismissed the City’s breach
of contract claim. See La. Stat. Ann. § 22:867. Without a written amendment
attached to the Policy recognizing the existence of a larger credit enhancement
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agreement, the Policy offers the City no support for its argument. The Policy
states only that Ambac guarantees payment of principal and interest to the
bondholders in the event of non-payment by the City. It makes no mention of
a larger credit enhancement agreement. Additionally, the City’s contention
that its $6,388,658.80 premium payment to Ambac encompassed compensation
for the larger credit enhancement agreement is contradicted by the clear
language in the Policy. 4
       The City must plead sufficient facts to make a plausible claim for relief.
Twombly, 550 U.S. at 570. The City fails to meet this burden. The City argues
that the other agreements in conjunction with the bond issuance establish the
existence of a larger credit enhancement agreement. But Ambac was only a
party to the Policy and the surety bonds for the Swap. None of these
agreements mention the supposed credit enhancement obligation. Further, the
City’s reliance on the resolutions is insufficient. In the resolutions, the City
acknowledged that the Policy was a “credit enhancement device[],” but such
acknowledgment provides no support for the existence of a larger agreement
that required Ambac to maintain certain underwriting standards during the
entire term of the bonds. The City purchased bond insurance, and that is what
it got. 5 The City’s hope that Ambac would remain financially strong and would
continue to provide credit support for its bonds does not amount to a legal



       4 The Policy states that “the insurance premium of $6,388,658.80 was determined in
arm’s length negotiations in accordance with our standard procedures, is required to be paid
as a condition to the issuance of the Insurance Policy and represents a reasonable charge for
the transfer of credit risk.” The Policy then states that “no portion of such premium
represents a payment for any direct or indirect services other than the transfer of credit risk.”
       5 See La. Stadium & Exposition Dist. v. Fin. Guar. Ins. Co., 701 F.3d 39, 46 (2d. Cir.

2012) (The City “bought bond insurance from [Ambac]. The purpose of buying the bond
insurance was to protect the bondholders in event of a default by the [City]. A side benefit
may have been a lower interest rate—credit enhancement—but it was not part of the
contract. The contract is explicit that it protects only the bondholders, and that there is no
guarantee that [Ambac] will maintain any particular credit rating.”).
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obligation by Ambac to do so. Nor can the City’s use of the term “credit
enhancement device” plausibly be viewed as evidence of a larger obligation by
Ambac to maintain certain underwriting standards for the term of the bonds.
      The City also seems to argue the existence of oral agreements whereby
Ambac guaranteed a credit enhancement. But its supporting factual
allegations are insufficient. And its contention that such oral agreements are
customary in the financial industry also lacks support.
      In contrast, there are a number of cases where courts have dismissed
plaintiffs’ claims of a bargained for “credit enhancement” when the plaintiffs
lacked an executed contract specifying such an obligation. See, e.g., Water
Works Bd. v. Ambac Fin. Grp., Inc., 718 F. Supp. 2d 1317 (N.D. Ala. 2010)
(dismissing plaintiff’s breach of contract claim alleging that surety bond
insurer agreed to maintain a AAA rating as long as bonds were outstanding,
because surety bond contract did not contain such a provision and such
obligation was not to be implied when the sophisticated entities did not include
it in the contract); In re Merrill Lynch Auction Rate Sec. Litig., No. 09 MD
2030(LAP), 2010 WL 1924719 (S.D.N.Y. May 11, 2010), aff’d sub nom. La.
Stadium & Exposition Dist. v. Fin. Guar. Ins. Co., 701 F.3d 39 (2d Cir. 2012)
(same). The City attempts to distinguish its argument by contending that
Ambac agreed to maintain certain underwriting and credit standards, instead
of arguing, as other plaintiffs have done unsuccessfully, that Ambac agreed to
maintain a certain credit rating. The City’s reframed argument is
indistinguishable from the arguments regarding maintaining credit ratings. A
company’s underwriting and credit standards necessarily affect its credit
rating, and Ambac no more agreed to maintain certain underwriting standards
than to maintain a certain credit rating during the term of the bonds. As the
City was aware when it warned potential purchasers of its bonds that its credit


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rating may change, it was also aware that Ambac’s credit rating may change.
The fact that this risk materialized is not a ground for relief.
      Because the district court properly interpreted the Policy and because
the City’s argument that it created a written and oral contract with Ambac for
credit enhancement is not plausible based on the facts alleged, the district
court did not err in dismissing the City’s breach of contract claim.
                                        B.
      Second, the City argues that the principal cause of the overall agreement
was credit enhancement, and it was error for the district court to hold
otherwise. The City contends that the error in the cause of the contract vitiates
its consent and that it should be awarded damages to restore it to its economic
position before the contract was made.
      For a valid contract, Louisiana law requires that “(1) the parties must
possess the capacity to contract; (2) the parties’ mutual consent must be freely
given; (3) there must be a certain object for the contract; and (4) the contract
must have a lawful purpose.” Dameware Dev., LLC v. Am. Gen. Life Ins. Co.,
688 F.3d 203, 207 (5th Cir. 2012). “Consent may be vitiated by error . . . .” La.
Civ. Code art. 1948. “Error vitiates consent only when it concerns a cause
without which the obligation would not have been incurred and that cause was
known or should have been known to the other party.” La. Civ. Code art. 1949.
“Cause is the reason why a party obligates himself.” La. Civ. Code art. 1967.
“Error may concern a cause when it bears on the nature of the contract, or the
thing that is the contractual object or a substantial quality of that thing, or the
person or the qualities of the other party, or the law, or any other circumstance
that the parties regarded, or should in good faith have regarded, as a cause of
the obligation.” La. Civ. Code art. 1950.
      Any error about what the City was purchasing when it paid Ambac in
excess of six million dollars was a unilateral error by the City because of the
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clear language of the Policy. “A party’s unilateral error must be reasonable or
excusable in order for the error to vitiate consent.” In re Merrill Lynch, 2010
WL 1924719 at *5 (citing Quality Design and Const., Inc. v. Capital Glass Co.,
Inc., 2008 0838, 2008 WL 4764341, at *4 (La. App. 1st Cir. 10/31/08)).
“Louisiana courts appear reluctant to vitiate agreements when the
complaining party is, either through education or experience, in a position
which renders his claim of error particularly difficult to rationalize, accept, or
condone.” In re Merrill Lynch, 2010 WL 1924719 at *5 (quoting Scott v. Bank
of Coushatta, 512 So. 2d 356, 362 (La. 1987)). And any unilateral error by the
City about what it was purchasing from Ambac was not reasonable or
excusable. Ambac’s marketing of the Policy as a form of credit enhancement
and its assistance in drafting the City’s resolutions do nothing to support a
belief that the City was purchasing a larger agreement for credit enhancement.
Because the City’s proffered error is unreasonable, it does not vitiate consent.
                                       C.
      Third, the City argues that Ambac not only breached its obligation to
provide credit enhancement, but also did so in bad faith through the
mismanagement of its own business for the purpose of its own profits. But
because the City has failed to establish the existence of a larger credit
enhancement agreement between it and Ambac, see Section II. A, supra, the
City’s bad faith claim concerning this purported agreement necessarily fails.
                                       D.
      Fourth, the City argues that the district court’s dismissal of its
detrimental reliance claim was error because the City was reasonable in
relying on Ambac’s representations regarding the credit enhancement. The
City argues that Ambac’s participation in drafting the resolutions—which,
according to the City, evidences Ambac’s obligation to provide credit
enhancement—makes its reliance reasonable.
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      The concept of detrimental reliance is codified in Louisiana Civil Code
article 1967. It states that “[a] party may be obligated by a promise when he
knew or should have known that the promise would induce the other party to
rely on it to his detriment and the other party was reasonable in so relying.”
“To establish detrimental reliance, a party must prove three elements by a
preponderance of the evidence: (1) a representation by conduct or word; (2)
justifiable reliance; and (3) a change in position to one’s detriment because of
the reliance.” Suire v. Lafayette City-Parish Consol. Gov’t, 2004-1459, 2004-
1460, 2004-1466, p.31 (La. 4/12/05); 907 So. 2d 37, 59. The City cannot
establish the first or the second element of detrimental reliance.
      For the City to succeed on this claim, it must allege sufficient facts that
Ambac represented that it would maintain its credit and underwriting
standards for the term of the bonds. The City has failed to do so. As discussed
above, the resolutions that the City so heavily relies upon show only that the
City purchased a bond insurance policy from a highly rated insurer, which, at
the time of issuance, lessened the perceived credit risk of the City’s bonds. Any
alleged representation by Ambac to provide a larger credit enhancement is
foreclosed by the clear language of the Policy. See In re Merrill Lynch, 2010 WL
1924719 at *14-16 (“An unambiguous contract may be interpreted as a matter
of law.”) (quoting Drs. Brethea, Moustoukas and Weaver LLC v. St Paul
Guardian Ins. Co., 376 F.3d 399, 404 (5th Cir. 2004)). “Under Louisiana law,
courts have found reliance on promises made outside of an unambiguous, fully-
integrated agreement [to be] unreasonable as a matter of law.” Id. (alteration
in original) (internal quotation marks omitted).
      Even if the City would have pled sufficient facts to establish such a
representation by Ambac, the City would be unreasonable for relying on such
a representation. The City would be relying upon general statements made by
Ambac in its annual reports and references to the term credit enhancement in
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the City’s resolutions. The City and Ambac are sophisticated parties that
engaged in arm’s length negotiations with respect to this bond offering.
Ambac’s statements in its annual reports and the statements in the City’s
resolutions are “too general reasonably to rely on in light of the clarity of the
parties’ written agreement.” In re Merrill Lynch, 2010 WL 1924719 at *15.
Therefore, the district court properly dismissed this claim.
                                      III.
      The district court properly dismissed the breach of contract, failure of
cause, bad-faith, and detrimental reliance claims. AFFIRMED.




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