Simpson Suit 1

CLASS ACTION COMPLAINT 1

U N I T E D S T A T E S D I S T R I C T C O U R T

S O U T H E R N D I S T R I C T O F N E W Y O R K

OAKLAND POLICE AND FIRE RETIREMENT SYSTEM, individually and on behalf of all others similarly situated,

Plaintiff,

v.

JPMORGAN CHASE BANK, N.A. and SIMPSON THACHER & BARTLETT LLP,

Defendants.

Case No. JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

Plaintiff, on behalf of itself and all others similarly situated, by and through its

undersigned counsel, hereby files this Class Action Complaint against Defendants JPMorgan

Chase Bank, N.A. (JPMorgan) and Simpson Thacher & Bartlett LLP (Simpson Thacher),

and alleges as follows on information and belief:

SUMMARY OF THE ACTION

1.! This is a class action brought by Plaintiff City of Oakland Police and Fire

Retirement System (Plaintiff or PFRS) on behalf of a class of entities that participated in a

secured Term Loan with General Motors Corporation (General Motors).

Case 1:15-cv-06007-UA Document 1 Filed 07/30/15 Page 1 of 38


2.! In 2006, General Motors, as borrower, entered into a $1.5 billion term loan with

a syndicate of lenders. JPMorgan served as the administrative agent on the term loan and owed

certain duties to the syndicate of lenders with respect to maintaining and monitoring the term

loan collateral. Plaintiff and a class of more than 400 entities participated in the term loan

syndication.

3.! In 2008, the security interest underlying the term loan was erroneously released

by the filing of a termination statement, which was improperly reviewed and authorized by

Simpson Thacher and JPMorgan.

4.! As a result of the filing of the erroneous termination statement, caused by

JPMorgans gross negligence and breach of contract and Simpson Thachers gross negligence

and negligent misrepresentation, the value of Plaintiffs and the other term loan lenders

investment in the $1.5 billion term loan has been substantially lost.

5.! Plaintiff, on behalf of itself and the class of term loan participants, brings this

action against Defendants JPMorgan and Simpson Thacher to recover damages and such other

relief as is just and proper.

PARTIES

6.! Plaintiff Oakland Police and Fire Retirement System is a public pension trust

fund established by Article XXVI of the Oakland City Charter. PFRS is a closed, single-

employer defined benefit pension plan that provides retirement compensation to the City of

Oakland, Californias retired police officers and firefighters. As of June 30, 2013, PFRS

membership consisted of 597 police and 445 fire retirees and beneficiaries, in addition to one

currently employed and fully vested police member. PFRS is located in Oakland, California.



7.! Defendant JPMorgan is a national banking association that is the principal bank

subsidiary of JPMorgan Chase & Co. JPMorgans headquarters and principal place of business

is 270 Park Avenue, New York, New York 10017. JPMorgan acted at all relevant times

through its authorized partners and employees, who acted as agents within the scope of their

authority, including but not limited to Richard W. Duker, its managing director.

8.! Defendant Simpson Thacher is a limited liability partnership and law firm

organized under the laws of the State of New York. Simpson Thacher is headquartered and has

its principal place of business at 425 Lexington Avenue, New York, New York 10017.

Simpson Thacher acted at all relevant times through its authorized partners and employees,

who acted as agents within the scope of their authority, including but not limited to Mardi

Merjian, one of its attorneys.

9.! The Defendants JPMorgan and Simpson Thacher are sometimes collectively

referred to herein as the Defendants.

JURISDICTION AND VENUE

10.! This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1332(d) because the amount in controversy exceeds $5,000,000 exclusive of interest and

costs, there are hundreds of Class members, and Plaintiff, along with numerous members of the

Class, is a citizen of a different state than Defendants.

11.! This Court has personal jurisdiction over Defendants because Defendants

regularly do business in the State of New York, are headquartered and have principal places of

business in the State of New York, and/or have been established under the laws of the State of

New York.



12.! Venue is proper under 28 U.S.C. 1391(b) because (1) Defendants are subject

to personal jurisdiction in this District, and (2) a substantial part of the events or omissions

giving rise to Plaintiffs claims occurred in this District. Defendants also regularly do business

in this District.

FACTS

I.! JPMorgan, General Motors, and the Syndicate of Lenders Enter into a $1.5 Billion Term Loan.

13.! In 2006, General Motors, as Borrower, Saturn Corporation, as Guarantor,

JPMorgan, as Administrative Agent, and a syndicate of lenders entered into a $1.5 billion term

loan secured by a first-priority lien on certain assets of General Motors (the Term Loan).

14.! The parties signed the Term Loan Agreement, dated as of November 29, 2006

(the Term Loan Agreement), which sets forth the rights and responsibilities of the parties.

15.! In connection with the Term Loan Agreement, the parties also entered into a

collateral agreement, dated as of November 29, 2006 (the Collateral Agreement), which sets

forth their rights and responsibilities with respect to the collateral which secured the Term

Loan.

16.! The Term Loan was syndicated to a group of over 400 lenders (the

Syndicate). The Plaintiff and all members of the putative class held an interest in the Term

Loan syndication. Loan syndication is the process by which a group of lenders fund various

portions of the loan in order to limit the risk exposure of a single lender.

17.! Richard W. Duker (Duker), as managing director of JPMorgan, signed the

Term Loan Agreement and Collateral Agreement on behalf of JPMorgan. Duker has worked



for JPMorgan for over twenty-five years and has been responsible for JPMorgans credit

relationship with General Motors since 1999.

18.! On November 30, 2006, the Term Loan parties caused a UCC-1 financing

statement to be filed with the Delaware Department of State, perfecting the Term Loan security

interest in certain General Motors property. The UCC-1 financing statement was file-stamped

by the Delaware Department of State as filing number 6416808 4 (the Term Loan Financing

Statement).

II.! JPMorgan and General Motors Agree to Terminate an Unrelated Borrowing.

19.! In September 2008, General Motors contacted JPMorgan to pay off a separate

and unrelated borrowing that was nearing maturity. The borrowing was a 2001 synthetic lease

between General Motors, as Lessee, JPMorgan, as Administrative Agent, and various lenders

and other parties (the Synthetic Lease). The outstanding borrowing on the Synthetic Lease

was approximately $150 million. The parties agreed that General Motors would purchase the

Synthetic Lease properties from JPMorgan and that the parties would terminate the Synthetic

Lease and the underlying security interests (the Synthetic Lease Payoff). The parties had no

intention of amending, terminating, or otherwise modifying the $1.5 billion Term Loan or its

corresponding security interest.

20.! On September 30, 2008, General Motors instructed its counsel, Mayer Brown, to

prepare the necessary documentation to effect the payoff of the Synthetic Lease. Robert

Gordon (Gordon) was the partner at Mayer Brown responsible for the Synthetic Lease Payoff

and was responsible for supervising all work performed by Mayer Brown in connection with it.



Gordon had worked in the real estate group of Mayer Brown since 1979 and had been a partner

with the firm since 1986.

21.! On October 1, 2008, Gordon instructed his associate, Ryan Green (Green) to

prepare a closing checklist for the Synthetic Lease Payoff (the Closing Checklist) and draft

the documents necessary to complete the transaction. Green graduated from law school in 2005

and began practicing in Mayer Browns real estate group in June 2007.

III.! Simpson Thacher Reviewed and Authorized the Erroneous Term Loan Termination Statement.

22.! On October 7, 2008, Green contacted Michael Perlowski (Perlowski), a

paralegal at Mayer Brown, and asked Perlowski to run a UCC search on General Motors in

Delaware and Michigan to determine which UCC financing statements needed to be

terminated.

23.! Perlowski responded to Greens request by emailing him three effective UCC

filings against General Motors in favor of JPMorgan. Two of the three UCC filings from the

prior search were dated as of April 2002 and referenced the Synthetic Lease real property as

collateral. The third UCC filing was the unrelated Term Loan Financing Statement, which

perfected the security interest in the unrelated $1.5 billion Term Loan.

24.! The Term Loan Financing Statement included in Perlowskis email was dated

November 30, 2006, four years later than the Synthetic Lease financing statements. The Term

Loan Financing Statement included an Annex I, which unlike the real property identified in

the Synthetic Lease financing statements, listed all equipment, fixtures and related collateral

located at U.S. manufacturing facilities as collateral. Moreover, Annex I to the Term Loan

Financing Statement identified the Credit Agreement and Collateral Agreement, each dated



November 29, 2006. Although the Synthetic Lease was dated 2001, and although the Synthetic

Lease transaction did not include any documents entitled Credit Agreement or Collateral

Agreement, Green nevertheless listed the completely unrelated Term Loan Financing Statement

on the Synthetic Lease Closing Checklist as a UCC financing statement to be terminated upon

the payoff of the Synthetic Lease.

25.! On October 15, 2008, Green emailed Arun Sundaram (Sundaram), one of his

client contacts at General Motors, a draft of the Closing Checklist which listed the Term Loan

Financing Statement as a UCC filing for which a termination statement would be prepared.

Sundaram forwarded the documents to Duker at JPMorgan.

26.! On October 15, 2008, Green also emailed a draft of the Closing Checklist to

Mardi Merjian (Merjian), an attorney at Simpson Thacher. Simpson Thacher represented

JPMorgan in connection with the Synthetic Lease Payoff. Merjian was the attorney responsible

for the matter. Merjian has practiced as a real estate attorney with Simpson Thacher in its New

York office since 1987, and his legal practice often involves UCC filings. Merjian has

represented JPMorgan since he began his legal practice with Simpson Thacher in 1987.

27.! Upon receipt of Greens email, Merjian forwarded the email with the Closing

Checklist attachment to Duker at JPMorgan.

28.! Later on October 15, 2008, Green circulated an updated, but substantially

similar draft of the Closing Checklist to Merjian at Simpson Thacher. Gordon and Stuart

Gonshorek (Gonshorek), a paralegal at Mayer Brown, were copied on the email. The updated

version of the Closing Checklist still erroneously listed the termination of the Term Loan

Financing Statement, which secured the unrelated $1.5 billion Term Loan. Also attached to this

email were drafts of the closing documents for the Synthetic Lease Payoff. Among these



documents was a UCC-3 termination statement that, if filed, would terminate the Term Loan

Financing Statement (the Erroneous Termination Statement).

29.! The first line of the Erroneous Termination Statement reads INITIAL

FINANCING STATEMENT FILE #6416808 4 on 11.30.06. (Emphasis added.) The other

financing statements to be terminated were dated as of April 2002.

30.! Upon receipt of the updated Closing Checklist and closing documents (including

the Erroneous Termination Statement), Merjian forwarded the documents to Duker at

JPMorgan. According to his testimony in the Adversary Bankruptcy Proceeding (as defined

below), Duker is familiar with how UCC filings operate and understands the purpose of UCC

financing and termination statements. Duker received Merjians email but was unable to open

or review the documents because the attachments were corrupted. Duker never requested

additional copies of the documents from Merjian or any of the other persons involved in the

Synthetic Lease Payoff, and Duker never reviewed the Synthetic Lease Payoff documents.

31.! On October 17, 2008, Merjian replied to Greens email, which included the

Closing Checklist and Erroneous Termination Statement as an attachment, stating:

Ryan Nice job on the documents. My only comment, unless I am missing something, is that all references to JPMorgan Chase Bank as Administrative Agent for the Investors should not include the reference for the Investors. (Emphasis added.) 32.! Merjian provided no further comments to the Closing Checklist or Erroneous

Termination Statement.



IV.! Simpson Thacher Executes Escrow Instructions Authorizing the Filing of the Term Loan Termination Statement.

33.! On October 24, 2008, Green, the Mayer Brown associate, emailed draft escrow

instructions (the Escrow Instructions) for the closing of the Synthetic Lease Payoff to

Merjian at Simpson Thacher.

34.! The Escrow Instructions listed each of the documents to be filed or signed in

connection with the Synthetic Lease Payoff. Item Number 2 of this list included the Erroneous


35.! On October 27, 2008, Green emailed Merjian asking Do you have any

comments to the draft escrow letter?

36.! On October 27, 2008, Merjian replied to Greens email stating it was fine.

37.! The Escrow Instructions were subsequently signed by Green, as attorney for

General Motors, and Merjian as attorney for JPMorgan.

V.! The Erroneous Termination Statement Is Filed with the Delaware Department of State.

38.! On October 30, 2008, the Synthetic Lease Payoff closed and Green told

Gonshorek to file the Erroneous Termination Statement.

39.! On October 30, 2008, Gonshorek caused the Erroneous Termination Statement

to be filed with the Delaware Department of State, thereby terminating the $1.5 billion security

interest for the Term Loan.

40.! No one at JPMorgan, including Duker, ever asked any questions about or

communicated any changes to the Erroneous Termination Statement.

41.! No one at Simpson Thacher, including Merjian, ever asked any questions about

or communicated any changes to the Erroneous Termination Statement.



VI.! JPMorgan Breached the Term Loan Agreement by Authorizing the Filing of the Erroneous Termination Statement.

42.! Under Section 10.01(vii) of the Term Loan Agreement, JPMorgan was

prohibited from releasing all or substantially all of the Collateral from the Liens of the

Security Documents without the written consent of each Lender.

43.! In authorizing the filing of the Erroneous Termination Statement, JPMorgan

released substantially all of the Collateral from the Liens of the Security Documents without

the consent of the Term Loan lenders and thereby breached the Term Loan Agreement.

44.! As a direct and proximate result of JPMorgans breach of the Term Loan

Agreement, on October 30, 2008, the Erroneous Termination Statement was filed with the

Delaware Department of State. As described below, on January 21, 2015, the United States

Court of Appeals for the Second Circuit held that the filing of the Erroneous Termination

Statement terminated the Term Loan security interest. None of the Term Loan lenders

consented to this release of the Term Loan security interest.

VII.! JPMorgan Inquires about the Term Loan Collateral.

45.! In May 2009, JPMorgan became concerned about the potential bankruptcy of

General Motors and the protection of the $1.5 billion security interest in the Term Loan.

Consequently, on May 6, 2009, Duker asked JPMorgans traditional credit products group

(TCP) for a summary of legal/collateral documentation including details on all UCC filings

regarding the Term Loan.

46.! TCP told Duker to email IB Collateral Services to inquire about collateral, and

to email LienPerfection Bangalore to inquire about UCCs. Lien Perfection, Bangalore



(Bangalore) is a JPMorgan division located in India that is responsible for tracking UCC

filings.

47.! Bangalore responded to Dukers inquiry by erroneously providing

documentation for a completely different and unrelated loan. Duker never received the correct

UCC information from Bangalore and thus did not discover the Erroneous Termination

Statement.

VIII.! General Motors Files for Bankruptcy, and Morgan Lewis Discovers the Erroneous Termination Statement.

48.! On June 1, 2009, General Motors filed for protection under Chapter 11 of the

United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District

of New York (the Bankruptcy Court).

49.! Sometime in the middle of June 2009, Morgan Lewis & Bockius LLP, counsel

to JPMorgan, discovered that the Erroneous Termination Statement had been filed with the

Delaware Department of State.

50.! On June 18, 2009, Morgan Lewis, on behalf of JPMorgan, informed the Official

Committee of Unsecured Creditors of Motor Liquidation Company f/k/a General Motors

Corporation (the Creditors Committee) of the filing of the Erroneous Termination

Statement. However, JPMorgan did not inform Plaintiff or, on information and belief, any of

the other Term Loan lenders that the Erroneous Termination Statement had been filed.

51.! On June 25, 2009, the Bankruptcy Court entered a Debtor-in Possession Order

(the DIP Order), which approved repayment of the Term Loan in full with interest, subject to

the Creditors Committees right to investigate and challenge the perfection of the Term Loan

security interest. The final repayment amount was $1,481,656,507.70.



52.! General Motors repaid the Term Loan, in full with interest, to JPMorgan in early

July 2009. JPMorgan then distributed the principal and interest to each of the Term Loan

lenders in accordance with their ratable interest. However, JPMorgan failed to notify Plaintiff,

and on information and belief, any of the other Term Loan lenders that:

a.! the Erroneous Termination Statement had been filed with the Delaware

Department of State in 2008;

b.! the Term Loan security interest was subject to challenge by the Creditors

Committee;

c.! as a result of a Creditors Committee challenge, the security interest could be

deemed terminated in 2008; and

d.! Plaintiff and the other Term Loan lenders could be compelled to repay the

Term Loan funds.

IX.! The Creditors Committee Files an Adversary Complaint, but JPMorgan Prevents the Plaintiff and the Other Term Loan Participants from Discovering Its Errors.

53.! On July 31, 2009, the Creditors Committee filed a complaint (the Adversary

Complaint) in the United States Bankruptcy Court for the Southern District of New York

(Motors Liquidation Company Avoidance Action Trust v. JPMorgan Chase Bank, N.A. et al,

No. 09-50026-reg) (the Adversary Proceeding). The complaint named as defendants

JPMorgan and all other Term Loan participants who had received Term Loan interest payments

in May 2009 or principal and interest payments pursuant to the July 2009 DIP Order. The

complaint alleged, inter alia, that the Term Loan security interest had been terminated in

October 2008 upon the filing of the Erroneous Termination Statement.

54.! The Plaintiff has never been served with process in the Adversary Proceeding.



55.! On July 31, 2009, JPMorgan took affirmative steps to prevent the Plaintiff and

the other Term Loan participants from learning that the Adversary Proceeding had been filed.

JPMorgans actions had the intent and effect of preventing the Plaintiff and the other Term

Loan participants from learning that the Erroneous Termination Statement had been filed due to

the misconduct of Defendants, as alleged herein.

56.! JPMorgan entered into stipulations with the Creditors Committee in the

Adversary Proceeding, which provided that service of process upon the Plaintiff and the other

Term Loan participants would be deferred until there was a final determination in the

Adversary Proceeding. Specifically,

a.! By Stipulation dated October 6, 2009 between JPMorgan and the Creditors

Committee, JPMorgan accepted service of the Adversary Complaint. The

stipulation recognized that the other defendants had not been served and

provided: The committee shall have 240 days to complete service on the

other defendants, without prejudice to seek an additional extension of time

to serve the summons and Complaint upon other defendants, if necessary.

b.! By Stipulation dated January 20, 2010, JPMorgan and the Creditors

Committee agreed to modify the October 6, 2009 stipulation to provide that:

The Committee shall have until thirty (30) days after the date of entry of

the Courts decision on any dispositive motion made under this modified

Stipulated Scheduling Order to serve the summons and complaint upon other

defendants.

c.! On March 25, 2013, JPMorgan and the Creditors Committee filed a

Proposed Order in the Adversary Proceeding that the time by which



Plaintiff shall serve the Summons and Complaint upon the Other Defendants

is extended to thirty (30) days after the date of entry of a Final Order [by the

Bankruptcy Court, after appeals thereof], without prejudice to the right of

Plaintiff to seek additional extensions thereof. The Proposed Order was

entered by the Bankruptcy Court on April 10, 2013.

57.! By entering into each of the above agreements and stipulations, JPMorgan

intentionally concealed from the Plaintiff and the other Term Loan participants that it had

authorized the filing of the Erroneous Termination Statement with the Delaware Department of

State.

58.! By entering into each of the stipulations to defer service of the Summons and

Complaint on the Plaintiff and the other Term Loan participants, JPMorgan intentionally

concealed from the Plaintiff and the other Term Loan participants that the Creditors

Committee had challenged the perfection of the Term Loan security interest.

59.! Pursuant to Article VII(g) of the Term Loan Agreement, an Event of Default has

occurred if any of the Security Documents shall cease, for any reason, to be in full force and

effect with respect to Collateral with a book value in excess of $25,000,000 in the aggregate, or

any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of

the Security Documents shall cease to be enforceable and of the same effect and priority

purported to be created thereby. (Emphasis added.)

60.! General Motors is a Loan Party, as that term is defined in the Term Loan

Agreement. The Creditors Committee is an Affiliate of a General Motors, as that term is

defined in the Term Loan Agreement, and thus an Affiliate of a Loan Party under the Term

Loan Agreement.



61.! In filing the Adversary Complaint, the Creditors Committee asserted that the

Term Loan security interest was no longer valid. Thus, under Article VII(g) of the Term Loan

Agreement an Event of Default occurred upon the filing of the Adversary Complaint because

the Creditors Committee, an affiliate of a loan party, had asserted that the security documents

of the Term Loan ceased to be in full force and affect with respect to collateral with a book

value in excess of $25,000,000.

62.! JPMorgan had notice of this Event of Default on or about July 31, 2009, when it

was notified by the Creditors Committee that the Adversary Complaint had been filed.

63.! Under Section 8.05 of the Term Loan Agreement, if JPMorgan is notified of an

Event of Default, it has an obligation to give notice thereof to the Lenders and to take such

action with respect to such Default or Event of Default as shall be reasonably directed by the

Majority Lenders.

64.! Accordingly, under Section 8.05 of the Term Loan Agreement, JPMorgan had a

duty to give notice to the Plaintiff and the other Term Loan participants of the filing of, the

pendency of, and the claims asserted in the Adversary Proceeding. In breach of this duty under

the Term Loan, as well as its independent duties as an agent to the Term Loan participants,

JPMorgan never disclosed to Plaintiff and, on information and belief, any of the other Term

Loan participants that it had authorized the filing of the Erroneous Termination Statement and

that as a result of the Erroneous Termination Statement, the Creditors Committee had

challenged the Term Loan security interest.

65.! Neither the Plaintiff nor, on information and belief, any of the other Term Loan

participants were informed by JPMorgan of the filing or pendency of the Adversary Proceeding

at any time from its filing on July 31, 2009 through May 2015.



66.! Plaintiff had no knowledge of the Adversary Proceeding until July 2015.

67.! On March 1, 2013, the Bankruptcy Court issued a decision in the Adversary

Proceeding, finding that the Term Loan Financing Statement was not terminated by the

Erroneous Termination Statement. See Official Comm. v. JPMorgan Chase Bank, NA (In re

Motors Liquidation Co.), 486 B.R. 596, 602 (Bankr. S.D.N.Y. 2013). The Creditors

Committee appealed the decision to the United States Court of Appeals for the Second Circuit.

X.! The Second Circuit Rules the Erroneous Termination Statement was Authorized by JPMorgan and Simpson Thacher and Terminated the Term Loan Security Interest.

68.! On January 21, 2015, the Second Circuit reversed the Bankruptcy Courts

decision and ruled that the Term Loan security interest had been terminated upon the filing of

the Erroneous Termination Statement. The Second Circuit wrote:

JPMorgans and Simpson Thachers repeated manifestations to Mayer Brown show that JPMorgan and its counsel knew that, upon the closing of the Synthetic Lease transaction, Mayer Brown was going to file the termination statement that identified the Main Term Loan UCC-1 for termination and that JPMorgan reviewed and assented to the filing of that statement. Nothing more is needed.

Official Comm. of Unsecured Creditors of Motors Liquidation Co. v. JPMorgan Chase Bank,

N.A. (In re Motors Liquidation Co.), 777 F.3d 100, 105 (2d Cir. 2015).

69.! JPMorgan did not inform the Plaintiff or, on information and belief, any of the

other Term Loan participants of the Second Circuits decision.

70.! As detailed herein, JPMorgan consistently and repeatedly breached its

disclosure obligations under Section 8.05 of the Term Loan Agreement and its independent

duties as agent to the Term Loan participants by repeatedly failing to inform and notify the

Term Loan participants of the ongoing Event of Default.



XI.! The Amended Adversary Complaint Now Seeks to Claw Back the 2009 Term Loan Payments from the Term Loan Lenders.

71.! On May 20, 2015, the Motors Liquidation Company Avoidance Trust (the

Avoidance Trust), as successor in interest to the Creditors Committee, filed a First Amended

Adversary Complaint (the Amended Complaint) in the Adversary Proceeding.

72.! The Amended Complaint seeks to claw back from Plaintiff and the Term Loan

participants:

a.! the Term Loan interest payments received by Plaintiff and the Term Loan

participants in May 2009; and

b.! the Term Loan principal and interest payments received by Plaintiff and the

Term Loan participants in July 2009 pursuant to the DIP Order.

73.! The Avoidance Trust asserts these claims on the basis that the Plaintiff and the

other Term Loan participants received payments as secured creditors when, in fact, they were

unsecured creditors due to JPMorgans and Simpson Thachers authorization of the Erroneous


ALL OF THE CLAIMS ASSERTED HEREIN HAVE BEEN TIMELY FILED

74.! All of the claims asserted herein have been timely filed. To the extent that any

of the claims asserted herein against the Defendants could be found to have accrued beyond the

period set by any applicable statute of limitations, such limitations periods were tolled for

multiple reasons, rendering those claims timely.



75.! First, all of the claims against the Defendants were tolled because the Plaintiff

did not discover and could not with reasonable diligence have discovered the facts underlying

the claims until June 2015.

76.! As detailed herein, JPMorgan intentionally failed to disclose to the Plaintiff and

the other Term Loan participants that it had authorized the filing of the Erroneous Termination

Statement and that, as a result, the Creditors Committee had challenged the perfection of the

Term Loan Security Interest. JPMorgan intentionally withheld this information from the

Plaintiff and the Term Loan participants from June 2009 through the present, even though

JPMorgan had a duty to promptly disclose this information under the Term Loan Agreement

and, independently, as agent for the Term Loan participants.

77.! The Plaintiff and the other Term Loan participants were entitled to rely on

JPMorgan, as their appointed agent, to preserve their security interest in the Team Loan and

had no obligation to inquire what information JPMorgan knew and was intentionally

withholding from them.

78.! Having appointed JPMorgan as their agent to represent their interests on the

Term Loan, the Plaintiff and other Term Loan participants had no separate duty to monitor the

status of the Term Loan security interest. To require them to monitor the security interest of the

Term Loan, a task that they had already appointed JPMorgan to perform, would undermine the

entire intent and purpose of their appointment of JPMorgan as Administrative Agent.

79.! Second, the claims against JPMorgan are also tolled by N.Y. C.P.L.R. 206(b)

because the Plaintiff and the other Term Loan participants are subject to a judgment against

them in the Adversary Proceeding as a result of the acts and omissions of their agent,

JPMorgan. Because all claims against JPMorgan arise from JPMorgans acts and omissions as



agent for the Plaintiff and the other Term Loan participants, all claims against JPMorgan are

tolled until judgment is entered against the Plaintiff and the other Term Loan participants.

80.! Third, JPMorgan is equitably estopped from asserting a statute of limitations

defense to any claims against it, because JPMorgan fraudulently concealed the facts underlying

the claims against it, both through its affirmative conduct and through its failure to disclose to

the Plaintiff and the other Term Loan participants the facts regarding the release of the security

interest.

81.! In order to avoid disclosure of the Erroneous Termination Statement, JPMorgan

entered into Stipulations with the Creditors Committee, which allowed the Creditors

Committee to defer service of the Adversary Complaint on Plaintiff and the other Term Loan

participants. These actions constitute affirmative conduct by JPMorgan to conceal material

information from the Plaintiff and the other Term Loan participants concerning claims that

could be asserted against JPMorgan.

82.! Furthermore, JPMorgan deliberately concealed the filing of the Erroneous

Termination Statement and the release of the Term Loan security interest, facts that JPMorgan

had an affirmative duty to disclose to the Plaintiff and the other Term Loan participants.

JPMorgans deliberate breach of its duty to disclose provides additional and independent

grounds for equitable estoppel. JPMorgans affirmative duty to disclose arises from multiple

sources:

a.! as detailed herein, the Term Loan Agreement created an affirmative duty,

which required JPMorgan to notify the Lenders that the Creditors

Committee had challenged the enforceability of the security interest;



b.! as the agent for the Plaintiff and the other Term Loan participants, JPMorgan

had an independent legal duty to disclose to the Plaintiff and the other Term

Loan participants material information relevant to the affairs entrusted to

JPMorgan, which JPMorgan knew the Plaintiff and the other Term Loan

participants would want to know, and which JPMorgan could have

communicated without violating a superior duty to a third party;

c.! as the agent for the Plaintiff and the other Term Loan participants, JPMorgan

had independent legal duties specifically to (i) notify the Plaintiff and the

other Term Loan participants that JPMorgan had acted beyond its actual

authority by releasing the Term Loan security interest and (ii) advise the

Plaintiff and the other Term Loan participants on the courses of action

reasonably available to the Plaintiff and the other Term Loan participants in

light of the actions of JPMorgan, Mayer Brown, and Simpson Thacher, as

detailed herein;

d.! JPMorgan possessed superior knowledge, not readily available to the

Plaintiff and the other Term Loan participants, and JPMorgan knew that the

Plaintiff and the other Term Loan participants were acting or refraining from

acting because they lacked such knowledge, giving rise to a legal duty for

JPMorgan to provide the relevant, material information to the Plaintiff and

the other Term Loan participants;

e.! there was inherent secrecy in JPMorgans conduct, since the Plaintiff and the

other Term Loan participants specifically relied upon JPMorgan as their



agent to act on their behalf in connection with the Term Loan, which gives

rise to a duty to disclose; and

f.! when JPMorgan provided partial information to Plaintiff and the Term Loan

participants at the time of the July 2009 principal and interest repayment,

JPMorgan was obligated to provide complete disclosure about the potential

clawback.

83.! Furthermore, the Plaintiff filed this action within a reasonable time after

discovering the facts underlying its claim. The Plaintiff first learned of the release of the Term

Loan security interest in July 2015, and it promptly filed this suit within one month of that

discovery. Therefore, JPMorgan is equitably estopped from asserting that the claims asserted

against it are untimely.

84.! Fourth, all claims against JPMorgan are additionally tolled by the continuing

representation doctrine. JPMorgan, the Plaintiff, and the other Term Loan participants had a

continuing relationship as agent and principal in connection with the Term Loan, and

JPMorgan purported to act on behalf of the Plaintiff and the other Term Loan participants

throughout the Adversary Proceeding. Claims against JPMorgan were tolled during its ongoing

representation of the Plaintiff and the other Term Loan participants.

85.! Even if the Plaintiff and the other Term Loan participants had been notified of

the Adversary Proceedingwhich they were notthey would have been entitled to rely upon

JPMorgans continuing representation of their interests.

86.! Furthermore, the Plaintiff and the other Term Loan participants specifically

appointed JPMorgan to act on their behalf and had an ongoing relationship with JPMorgan, and

they therefore were not required to sue JPMorgan while JPMorgan was still litigating their



interests in the Adversary Proceeding. Moreover, there was a relationship of trust between the

Plaintiff and the other Term Loan participants and JPMorgan because the Plaintiff and the other

Term Loan participants entrusted JPMorgan as their agent to preserve the security interest for

the Term Loan on their behalf.

CLASS ALLEGATIONS

87.! Plaintiff seeks to represent a class defined as:

All Term Loan participants that received interest payments on the Term Loan in May 2009 and/or received principal and interest payments on the Term Loan in or about July 2009 (the Class). Excluded from the Class are Defendant JPMorgan and any of its affiliates.

88.! This action is brought and may be properly maintained as a class action pursuant

to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3). This action satisfies the numerosity,

ascertainability, commonality, typicality, adequacy, predominance, and superiority

requirements of these rules.

89.! Numerosity under Rule 23(a)(1). There are several hundred members of the

Class, which is so numerous that the individual joinder of all members is impracticable. Each

of these Class members can be ascertained by referencing Defendants business records, which

contain the contact information for the participants in the Term Loan.

90.! Commonality under Rule 23(a)(2). Common legal and factual questions exist

that predominate over any questions affecting only individual Class members. These common

questions, which do not vary among Class members and which may be determined without

reference to any Class members individual circumstances, include, but are not limited to:



a.! whether JPMorgan breached the Term Loan Agreement by authorizing the

filing of the Erroneous Termination Statement that released substantially all

of the collateral for the Term Loan without the consent of the Plaintiff and

the Class.

b.! whether JPMorgan breached its duty to the Plaintiff and the Class in its

performance of its duties as Administrative Agent under the Term Loan;

c.! whether JPMorgan acted recklessly and was grossly negligent when it

authorized the filing of the Erroneous Termination Statement;

d.! whether JPMorgan breached its duty to the Plaintiff and the Class and

violated the Term Loan Agreement by failing to inform the Plaintiff and the

Class that it had authorized the filing of the Erroneous Termination

Statement and that the Creditors Committee had asserted that the Term

Loan security interest had been released;

e.! whether JPMorgan fraudulently concealed from the Plaintiff and the Class

that it had authorized the filing of the Erroneous Termination Statement and

that the Creditors Committee had asserted that the Term Loan security

interest had been released;

f.! whether Simpson Thacher owed a duty to the Plaintiff and the Class,

independently or as a result of its duties to JPMorgan, in connection with its

review and approval of the Synthetic Lease closing documents, which

included the Erroneous Termination Statement;

g.! Whether Simpson Thacher acted negligently or was grossly negligent in its

review and approval of the closing documents for the Synthetic Lease, and



in particular, its review and approval of the Erroneous Termination

Statement; and

h.! whether Simpson Thacher made negligent misrepresentations with respect to

the Synthetic Lease closing documents and, in particular, with respect to the

inclusion therein of the Erroneous Termination Statement.

91.! Typicality under Rule 23(a)(3). Plaintiffs claims are typical of the claims of the

members of the Class. Plaintiff alleges a common set of facts and theories of recovery against

Defendants relating to the Term Loan and the course of conduct that led to the release of the

Class members security interest in the Term Loan through the filing of the Erroneous

Termination Statement. Plaintiff and the Class seek identical remedies under identical legal

theories based on identical factual occurrences. There is no antagonism or factual variation

between the Plaintiffs claims and those of the Class.

92.! Adequacy of Representation under Rule 23(a)(4). Plaintiff is an adequate Class

representative because the Plaintiff is a Class member, and the Plaintiffs interests do not

conflict with the Classs interests. Plaintiff will fairly and adequately protect and represent the

interests of each member of the Class. Plaintiff is fully cognizant of its responsibilities as Class

representative and has retained experienced counsel fully capable of, and intent upon,

vigorously prosecuting this action on behalf of the Class.

93.! Superiority under Rule 23(b)(3). A class action is superior to other available

methods for the fair and efficient adjudication of the controversy within the meaning of Rule

23(b)(3) and in consideration of the matters set forth in Rule 23(b)(3)(A)-(D). The maintenance

of separate actions would place a substantial and unnecessary burden on the courts and could



result in inconsistent adjudications, while a single class action can determine, with judicial

economy, the rights of all members of the Class.

94.! The Class can be properly maintained under Rule 23(b)(2). Defendants have

acted or refused to act on grounds that apply to the entirety of the Class such that final

injunctive or declaratory relief is appropriate respecting the Class as a whole.

95.! The Class can be properly maintained under Rule 23(b)(3). A class action is

superior to other available methods for the fair and efficient adjudication of this litigation

because individual litigation of each Class members claim would create a risk of (a)

inconsistent or varying adjudications with respect to individual Class members that would

establish incompatible standards of conduct for the party opposing the Class, or (b)

adjudications with respect to individual Class members that, as a practical matter, would be

dispositive of the interests of the other members not parties to the individual adjudications or

would substantially impair or impede their ability to protect their interests.

FIRST CLAIM FOR RELIEF

Breach of Contract Against JPMorgan

96.! Plaintiff, individually and on behalf of the Class, incorporates by reference all of

the allegations contained in the preceding paragraphs of this Complaint.

97.! By reason of the conduct alleged herein, JPMorgan is liable to the Plaintiff and

the other Term Loan participants for its breaches of the Term Loan Agreement.

98.! Pursuant to Section 8.01 of the Term Loan Agreement, each Term Loan

participant designated and appointed JPMorgan as its agent and authorized JPMorgan, as its

agent, to take such action on its behalf under the provisions of this Agreement and the other



Loan Documents and to exercise such powers and perform such duties as are expressly

delegated to the Agent by the terms of this Agreement and the other Loan Documents, together

with such other powers as are reasonably incidental thereto.

99.! Under Section 10.01(vii) of the Term Loan Agreement, JPMorgan had no

authority to release all or substantially all of the Collateral from the Liens of the Security

Documents without the written consent of each Lender.

100.! JPMorgan breached the Term Loan Agreement by authorizing Mayer Brown to

file the Erroneous Termination Statement, which released substantially all of the Collateral

from the Liens of the Security Documents without the written consent of each Lender.

101.! Under Article VII(g) and Section 8.05 of the Term Loan Agreement, JPMorgan

has a continuous duty to inform the Lenders and take direction given by a majority of them if

there is an Event of Default. An Event of Default occurs if any of the Security Documents

shall cease, for any reason, to be in full force and effect with respect to Collateral with a book

value in excess of $25,000,000 in the aggregate, or any Loan Party or any Affiliate of any Loan

Party shall so assert, or any Lien created by any of the Security Documents shall cease to be

enforceable and of the same effect and priority purported to be created thereby.

102.! In breach of these obligations, JPMorgan did not inform the Plaintiff, or on

information and belief, the other Term Loan participants that on July 31, 2009, an Event of

Default occurred when the Creditors Committee asserted that the Security Documents, with

respect to Collateral with a book value in excess of $25,000,000 in the aggregate, had ceased to

be in full force and effect.

103.! The Plaintiff and the other Term Loan participants were damaged as a direct and

proximate result of JPMorgans breaches of contract.



104.! Because JPMorgan breached its disclosure obligations with respect to the Event

of Default, which deprived the Plaintiff and the other Term Loan participants of their

opportunity to instruct JPMorgan as to what action to take against Mayer Brown, Simpson

Thacher and JPMorgan itself, JPMorgan had the obligation to take all reasonable steps to

ensure that any statutes of limitations on any claims that could be asserted against Mayer

Brown, Simpson Thacher, and JPMorgan itself, arising out of the conduct and events described

herein, would not expire. This could have included, but not have been limited to, entering into

tolling agreements with Mayer Brown, Simpson Thacher, and JPMorgan itself, which tolled the

running of the statute of limitations, or bringing those claims prior to any possible expiration of

any applicable statutes of limitations. Plaintiff does not know if any such tolling agreements

have been executed. Any failure by JPMorgan to meet the obligations described herein

constitute further damages caused by JPMorgans breach of contract.

SECOND CLAIM FOR RELIEF

Gross Negligence Against JPMorgan



106.! By reason of the conduct alleged herein, JPMorgan is liable to the Plaintiffs and

the other Term Loan participants for its gross negligence.

107.! Defendant JPMorgan entered into a contract to perform services as an agent and

therefore owed a duty of reasonable care to the Plaintiff and the other Term Loan participants.

108.! By authorizing Mayer Brown to file the Erroneous Termination Statement,

which released substantially all of the Term Loan security interest without the written consent



of each Lender, JPMorgan consciously and voluntarily disregarded its duty of reasonable care,

acting with reckless indifference to the rights of the Plaintiff and the other Term Loan

participants in performing its duties as an agent under the Term Loan. As a result, JPMorgan

breached its duty of care to the Plaintiff and the Class.

109.! Defendant JPMorgan further breached its duty of reasonable care by failing to

inform the Plaintiff and the other Term Loan participants that the Erroneous Termination

Statement had been filed with the Delaware Department of State and that the Creditors

Committee had asserted that the security interest had been terminated. JPMorgan knew the

Plaintiff and the other Term Loan participant would want this relevant information and could

have communicated this information without violating any duties to a third party. By failing to

provide this information, JPMorgan intentionally concealed incriminating facts in order to

prevent the Plaintiff and the other Term Loan participants from learning about its egregious

conduct and the grave consequences. JPMorgan acted with reckless indifference to the rights of

the Plaintiff and the other Term Loan participants.

110.! JPMorgan owed a duty to the Plaintiff and the other Term Loan participants to

take action only within the scope of its actual authority as agent and to comply with all lawful

instructions received from the participants in the Term Loan.

111.! JPMorgan took actions beyond the scope of its actual authority as agent, and in

contravention of the lawful instructions of the Term Loan participants, when it authorized

Mayer Brown to file the Erroneous Termination Statement, which released substantially all of

the Term Loan security interest without the written consent of each Lender.

112.! As a result of the actions taken beyond the scope of its authority and in

contravention of the lawful instruction of the Term Loan participants, JPMorgan is liable to the



Plaintiff and the other Term Loan participants for all losses caused by its unauthorized actions.

This liability includes any losses that stem from actions taken by JPMorgan with apparent

authority and that resulted in the Term Loan participants liability to the Creditors Committee.

113.! In allocating the potential risk of loss, the Term Loan Agreement expressly

states that JPMorgan can be held liable for its own gross negligence or willful misconduct.

114.! The Plaintiff and the other Term Loan participants were damaged by

JPMorgans reckless and grossly negligent breaches of the foregoing duties, and their damages

were the foreseeable and expected result of these breaches.


proximate result of JPMorgans reckless and grossly negligent breaches of its duty of care.

THIRD CLAIM FOR RELIEF

Fraudulent Concealment Against JPMorgan



117.! By reason of the conduct alleged herein, JPMorgan is liable to the Plaintiff and

the other Term Loan participants for fraudulent concealment.

118.! In June 2009, JPMorgan learned that the Erroneous Termination Statement had

been filed with the Delaware Department of State and that the Term Loan security interest in

the collateral had been terminated.

119.! JPMorgan did not disclose this material information to the Plaintiff or, on

information and belief, to any of the other Term Loan participants. Furthermore, when

JPMorgan distributed the Term Loan repayment in July 2009, JPMorgan failed to disclose to



the Plaintiff and other Term Loan participants that the Term Loan security interest could be

challenged and that the Plaintiff and the other Term Loan participants could be compelled to

return the proceeds of the repayment. By distributing the loan proceeds without disclosing that

the payment might be subject to clawback, JPMorgan omitted material information needed to

make its partial disclosure complete.

120.! On July 31, 2009, the Creditors Committee commenced an Adversary

Proceeding against JPMorgan, claiming that the Term Loan security interest had been

terminated by the Erroneous Termination Statement.

121.! The Plaintiff and the other Term Loan participants were named as defendants in

the Adversary Proceeding. However, in order to avoid the disclosure that it had authorized the

Erroneous Termination Statement, JPMorgan entered into a Stipulation with the Creditors

Committee allowing the Creditors Committee to defer service of the Adversary Proceeding

Complaint, thereby engaging in further affirmative steps to conceal this material information

from the Plaintiff and the other Term Loan participants.

122.! JPMorgan acted with full knowledge and intent and was motivated by its

interest in protecting itself from the legal consequences of its misconduct.

123.! JPMorgan had a duty to disclose the concealed material information because:

a.! the Term Loan Agreement obligated JPMorgan to notify the Plaintiff and the

other Term Loan participants about the claim that had been made by the

Creditors Committee challenge to the enforceability of the security interest

in most of the collateral pledged to secure the Term Loan;

b.! as an agent, JPMorgan had an independent legal duty to disclose information

relevant to the affairs entrusted to JPMorgan by the Term Loan participants,



which JPMorgan knew the Plaintiff and the other Term Loan participants

would wish to have and which JPMorgan could have communicated without

violating any duties to a third party;

c.! JPMorgan possessed superior knowledge, not readily available to the

Plaintiff and the other Term Loan participants, and knew that the Plaintiff

and the other Term Loan participants were acting or refraining from acting

on the basis of that mistaken knowledge; and

d.! by providing partial information at the time of the distribution in July 2009,

JPMorgan was obligated to provide complete disclosure about the potential

clawback.

124.! The Plaintiff and the other Term Loan participants were lulled into inaction by

JPMorgans deliberate silence, notwithstanding its duty to disclose, and justifiably relied on

JPMorgans nondisclosures to their substantial detriment.


proximate result of JPMorgans fraudulent concealment.

126.! As a direct and proximate result of JPMorgans fraudulent concealment, the

Plaintiff and the other Term Loan participants were unaware of the claims they could assert

against JPMorgan, Mayer Brown, and Simpson Thacher.

127.! Because JPMorgan fraudulently concealed these facts from the Plaintiff and the

other Term Loan participants, Plaintiff and the other Term Loan participants were deprived of

their opportunity under the Term Loan Agreement to instruct JPMorgan as to what action to

take against Mayer Brown, Simpson Thacher, and JPMorgan itself. As a result, JPMorgan had

the obligation, without instructions from a majority of the participants in the Term Loan, to



take all reasonable steps to ensure that the statutes of limitations on any claims that could be

asserted against Mayer Brown, Simpson Thacher, and JPMorgan itself would not expire. This

could have included entering into tolling agreements with Mayer Brown, Simpson Thacher,

and JPMorgan itself to preserve any claims that could possibly be extinguished under any

applicable statutes of limitations. Plaintiff does not know if any such tolling agreements have

been executed. Any failure by JPMorgan to meet the obligations described herein constitutes

further damages caused by JPMorgans fraudulent concealment.

128.! If it is found that any of the other claims asserted herein against JPMorgan and

Simpson Thacheror elsewhere against Mayer Brownare untimely due to the expiration of

any applicable statute of limitations, then the damages directly and proximately caused by

JPMorgans fraudulent concealment will include the damages the Plaintiff and the members of

the Class would have recovered from JPMorgan, Simpson Thacher, and Mayer Brown on the

claims found to have been untimely filed.

FOURTH CLAIM FOR RELIEF

Declaratory Relief Against JPMorgan for Common Law Indemnification



130.! The Plaintiff and the other Term Loan participants received disbursements as

purported secured creditors for repayments of principal and interest under the terms of the

Term Loan Agreement.



131.! On May 20, 2015, the Motors Liquidation Company Avoidance Trust, as

successor in interest to the Creditors Committee, filed the Amended Complaint in the

Adversary Proceeding.

132.! The Amended Complaint seeks to claw back from Plaintiff and the Term Loan

participants:

a.! the Term Loan interest payments received by Plaintiff and the Term Loan

participants in May 2009; and

b.! the Term Loan principal and interest payments received by Plaintiff and the

Term Loan participants in July 2009 pursuant to the DIP Order.

133.! The basis for the demand for repayment levied against the Plaintiff and the other

Term Loan participants is that they and JPMorgan received payments from the bankruptcy

estates as secured creditors when, in fact, they were unsecured creditors.

134.! The improper payments were caused by JPMorgans wrongful authorization of

the Erroneous Termination Statement in contravention of contractual obligations owed by

JPMorgan to the Plaintiff and the other Term Loan participants.

135.! Despite its obviously wrongful conduct, JPMorgan has failed to assume

responsibility for any repayment of principal or interest that is being sought against the Plaintiff

and the other Term Loan Participants.

136.! Due to the pending lawsuit against the Plaintiff and the other Term Loan

participants for repayment of any principal and interest they have received under the Term

Loan, and because JPMorgans has refused to assume responsibility for such repayment, an

actual controversy exists as to the rights of the Plaintiff and the Term Loan participants to

obtain indemnification from JPMorgan for any repayment of principal, interest, and any other



fees or costs that they may be required to make as a result of the pending legal proceeding

against them.

137.! The Plaintiff and the other Term Loan participants have standing to seek a

declaratory judgment from this Court, declaring that due to JPMorgans wrongful and grossly

negligent conduct in authorizing the filing of the Erroneous Termination Statement, JPMorgan

is and will continue to be liable to Plaintiff and the other Term Loan participants for

indemnification of any amounts that Plaintiff and the other Term Loan participants will have to

pay as a result of any resolution or disposition of the legal proceedings before the Bankruptcy

Court.

FIFTH CLAIM FOR RELIEF

Malpractice and Professional Negligence Against Simpson Thacher



139.! Defendant Simpson Thacher assumed professional responsibility for

representing JPMorgan, which was the agent for and representative of the lenders in the

Synthetic Lease and the Term Loan. In connection with the Synthetic Lease Payoff, Simpson

Thacher agreed to exercise its professional skill and talent on behalf of and for the benefit of

JPMorgan. Simpson Thacher had a duty to exercise professional competence and due

professional care in doing so. To the extent that Simpson Thacher had this duty to JPMorgan in

its capacity as agent for Plaintiffs, Simpson Thacher owed the same duty to Plaintiffs.



140.! In reviewing the closing checklist, escrow letter, and UCC termination

statements, Simpson Thacher had a duty to JPMorgan, and to Plaintiff and the Class members

as JPMorgans principals, to use due professional care.

141.! Simpson Thacher failed to exercise professional competence and due

professional care by negligently, grossly negligently, and recklessly approving and authorizing

the filing of the Erroneous Termination Statement.

142.! Furthermore, Simpson Thacher failed to conduct proper due diligence and failed

to properly review the closing checklist, escrow letter, and UCC termination statements.

143.! As a direct and proximate result of Simpson Thachers professional negligence

and gross negligence, the Term Loan participants lost substantially all of the security interest

under the Term Loan and thereby suffered damages in an amount to be proven at trial.

SIXTH CLAIM FOR RELIEF

Negligent Misrepresentation Against Simpson Thacher



145.! Defendant Simpson Thacher assumed professional responsibility for

representing JPMorgan, Plaintiff, and the other Term Loan participants with respect to the

transactions alleged herein. In connection with the Synthetic Lease Payoff, Simpson Thacher

agreed to exercise its professional skill and talent on behalf of and for the benefit of JPMorgan,

Plaintiff and the other Term Loan participants. Simpson Thacher had a duty to exercise

professional competence and due professional care in doing so. To the extent that Simpson



Thacher had this duty to JPMorgan in its capacity as agent for Plaintiffs, Simpson Thacher also

owed the same duty to Plaintiffs.

146.! Simpson Thacher knew that JPMorgan would rely on its review and approval of

the closing checklist, escrow letter, and UCC termination statements.

147.! Simpson Thacher negligently misrepresented to JPMorgan and Mayer Brown

that the closing checklist, escrow letter, and UCC termination statements for the Synthetic

Lease were fine, when, in fact, they were grossly inaccurate because they contained the

Erroneous Termination Statement, which would, when filed, terminate the security interest for

the $1.5 billion Term Loan.

148.! Simpson Thacher knew that JPMorgan would rely on its representations

regarding the documentation prepared in connection with the Synthetic Lease Payoff.

149.! As a direct, foreseeable, and proximate result of Simpson Thachers negligent

misrepresentations, the Plaintiff and other Term Loan participants lost substantially all of their

security interest under the Term Loan and thereby suffered damages in an amount to be proven

at trial.

PRAYER FOR RELIEF

Plaintiff, on behalf of itself and the Class, respectfully requests:

a.! That that the Court certify this action as a class action pursuant to Federal

Rule of Civil Procedure 23(a) and (b)(1), (2), and (3), appoint Plaintiff as the

representative of the Class, and appoint its counsel as counsel for the Class;



b.! That the Court enter judgment awarding actual damages to Plaintiff and the

Class against all of the Defendants in an amount to be proven at trial, as well

as prejudgment and postjudgment interest at the maximum allowable rate;

c.! That the Court award appropriate and reasonable attorneys fees and

expenses and the costs of this suit;

d.! That the Court enter the appropriate declaratory relief to which Plaintiff and

the Class are entitled; and

e.! That the Court award such other and further relief as it may deem just and

proper.

JURY DEMAND

Plaintiff demands a trial by jury on all causes of action so triable. Dated: July 30, 2015

By: /s/ Willem F. Jonckheer WILLEM F. JONCKHEER

Robert C. Schubert Willem F. Jonckheer Noah M. Schubert Kathryn Y. Schubert SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Ctr Ste 1650 San Francisco, CA 94111 Ph: 415.788.4220 Fx: 415.788.0161 [email protected] [email protected] [email protected] [email protected]



Andy Katz LAW OFFICES OF ANDY KATZ 2150 Allston Way Suite 400 Berkeley, CA 94704 Ph: 510.985.9050 Fx: 510.900.6070 [email protected] Attorneys for Plaintiff and the Putative Class
