         12-3605-cv
         Wachovia Bank, Nat. Ass’n, et al. v. VCG Special Opportunities Master Fund, Ltd.


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of May, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                J. CLIFFORD WALLACE,*
 9                         Circuit Judges.
10
11
12       WACHOVIA BANK, NATIONAL ASSOCIATION,
13       WACHOVIA CAPITAL MARKETS LLC,
14
15                                     Plaintiffs-Appellees,
16
17                             -v.-                                                 12-3605
18
19       VCG SPECIAL OPPORTUNITIES MASTER FUND,
20       LTD., FKA CDO PLUS MASTER FUND, LTD.,
21
22                                     Defendant-Appellant.
23
24
25       FOR APPELLANT:                TERENCE WILLIAM MCCORMICK (Steven Glen
26                                     Mintz, on the brief), Mintz & Gold LLP,
27                                     New York, NY.
28
29       FOR APPELLEES:                SHAWN PATRICK REGAN (Patrick L. Robson,
30                                     on the brief), Hunton & Williams LLP, New
31                                     York, NY.

                *
                Judge J. Clifford Wallace of the United States Court of
         Appeals for the Ninth Circuit, sitting by designation.
1         Appeal from the United States District Court for the
2    Southern District of New York (Swain, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Southern District of New York is AFFIRMED.

7        Defendant-Appellant VCG Special Opportunities Master

8    Fund, Ltd. (“VCG”) appeals from an August 2012 judgment of

9    the United States District Court for the Southern District

10   of New York (Swain, J.) granting Plaintiff-Appellee Wachovia

11   Bank’s motion for an award of attorney’s fees and costs in

12   the sum of $723,142.69.   We assume the parties’ familiarity

13   with the underlying facts, the procedural history, and the

14   issues presented for review.

15       VCG does not contest the reasonableness of the amount

16   of attorney’s fees awarded.    Instead, VCG’s principal

17   argument on appeal is that Wachovia Bank did not have

18   standing to bring this lawsuit and is not entitled to

19   receipt of fees under the parties’ May 2007 credit default

20   swap transaction agreement (the “ISDA Agreement”).    We

21   review de novo the district court’s alleged errors of law

22   with respect to awarding attorney’s fees.    Oscar Gruss &

23   Son, Inc. v. Hollander, 337 F.3d 186, 198 (2d Cir. 2003).

24

                                    2
1        Wachovia Bank instituted the present action to enjoin

2    VCG from forcing Wachovia Bank’s affiliate, Plaintiff-

3    Appellee Wachovia Capital Markets (“WCM”), to submit to

4    FINRA arbitration involving issues identical to those

5    already being litigated between VCG and Wachovia Bank before

6    Judge Swain in the Southern District of New York.1     The

7    district court initially granted summary judgment to VCG and

8    refused to enjoin the arbitration against WCM.     Wachovia

9    Bank, N.A. v. VCG Special Opportunities Master Fund, Ltd.,

10   No. 08 Civ. 5655 (LTS), 2010 WL 1222026 (S.D.N.Y. Mar. 29,

11   2010).   Plaintiffs appealed and we reversed and remanded for

12   the district court to enter summary judgment in favor of

13   Wachovia Bank and WCM.   Wachovia Bank, Nat. Ass’n v. VCG

14   Special Opportunities Master Fund, Ltd., 661 F.3d 164 (2d

15   Cir. 2011).

16       Thereafter, Wachovia Bank moved for attorney’s fees and

17   costs pursuant to Section 11 of the ISDA Agreement, which

18   obligates a defaulting party to “indemnify and hold harmless

19   the other party for and against all reasonable out-of-pocket

20   expenses, including legal fees . . . incurred by such other

         1
            The prior action has since been concluded in favor of
     Wachovia Bank. CDO Plus Master Fund Ltd. v. Wachovia Bank, N.A.,
     No. 07 Civ. 11078(LTS)(AJP), 2010 WL 3239416 (S.D.N.Y. Aug. 16,
     2010).

                                    3
1    party by reason of the enforcement and protection of its

2    rights under this Agreement.”       (JA 172.)   The district court

3    granted Wachovia Bank’s motion and rejected VCG’s arguments

4    in opposition.   We affirm for substantially the reasons

5    given by the district court.

6        This Court previously considered VCG’s claim that

7    Wachovia Bank does not have standing to litigate this

8    matter; our prior mandate directing the district court to

9    enter summary judgment in favor of Wachovia and WCM should

10   suffice to remind VCG of our view.       Moreover, we agree with

11   the district court’s explanation:       Wachovia Bank has

12   standing to enforce and protect its rights under the ISDA

13   Agreement.   Here, Wachovia Bank sought to guard its rights

14   generated by the provision of the ISDA Agreement prohibiting

15   VCG from claiming reliance on guidance provided by a

16   Wachovia affiliate – exactly what VCG attempted to do in its

17   arbitration statement of claim against WCM.

18       We have considered all of VCG’s remaining arguments on

19   appeal and hold them to be without merit.

20

21

22


                                     4
 1       For the foregoing reasons, the judgment of the district
 2
 3   court is hereby AFFIRMED.
 4
 5
 6
 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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