         12-2956-cv
         Merrill Lynch Capital Services, Inc. v. UISA Finance, USINAS Itamarati S.A.

                                 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 30th day of August, two thousand and thirteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       MERRILL LYNCH CAPITAL SERVICES, INC.,
14
15                                     Plaintiff-Counter Defendant–Appellee,
16
17       MERRILL, LYNCH, PIERCE, FENNER & SMITH, INC., MERRILL LYNCH
18       CREDIT PRODUCTS, LLC, MERRILL LYNCH & CO. INC.,
19
20                                     Counter Defendants,
21
22                             -v.-                                                 12-2956-cv
23
24       UISA FINANCE, USINAS ITAMARATI S.A.,
25
26                                     Defendants-Counter Claimants–Appellants.
27
28
29       FOR APPELLANT:                RICHARD I. WERDER, Jr. (Sanford I.
30                                     Weisburst, Adam S. Cashman, on the
31                                     brief), Quinn Emanuel Urquhart &
32                                     Sullivan, LLP, New York, NY.
33
1    FOR APPELLEE:     THOMAS C. RICE (William T. Russell, Jr.,
2                      Paul J. Sirkis, on the brief), Simpson
3                      Thacher & Bartlett LLP, New York, NY.
4
5         Appeal from the United States District Court for the
6    Southern District of New York (Sullivan, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the District Court’s judgment entered June

10   22, 2012, against UISA Finance and USINAS Itamarati, S.A.

11   (“Itamarati”) is AFFIRMED.

12       In its June 21, 2010 order, the District Court (1)

13   correctly dismissed defendants’ counter claims on the

14   grounds that defendants failed to plead sufficient facts to

15   plausibly establish claims for, inter alia, breach of a

16   fiduciary duty by plaintiff-counter defendant Merrill Lynch

17   Capital Services, Inc., or counter defendants Merrill,

18   Lynch, Pierce, Fenner & Smith, Merrill Lynch Credit

19   Products, LLC, and Merrill Lynch & Co; and (2) correctly

20   awarded summary judgment against defendant UISA Finance with

21   respect to liability because defendants had failed to

22   establish a genuine issue of material fact with regard to

23   any of their contract defenses.   For the reasons stated in

24   its thorough and thoughtful opinion of April 10, 2012, the

25   District Court also correctly held that (1) Itamarati’s

26

27

                                  2
1   guaranty of UISA Finance’s obligations to plaintiff is

2   enforceable, and (2) defendants are liable to plaintiff in

3   the amount of $146,138,856 plus interest and expenses.

4
5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8
9




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