Planete Bleue Television, Inc., et al. v. A&E Television Networks, LLC, et al.

MEMORANDUM OF LAW in Support re: 64 MOTION to Dismiss The Plaintiff's Complaint. . Document

S.D.N.Y.January 5, 2018

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PLANETE BLEUE TELEVISION, INC. and PLANETE BLEUE TELEVISION II, INC., Plaintiffs, vs. A&E TELEVISION NETWORKS, LLC and AON/ALBERT G. RUBEN INSURANCE SERVICES, INC., Defendants. Civil Action No. 1:16-cv-9317-PGG AON/ALBERT G. RUBEN INSURANCE SERVICES, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT Richard I. Werder, Jr. Renita Sharma QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 (212) 849-7000 rickwerder@quinnemanuel.com renitasharma@quinnemanuel.com Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 1 of 27 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 BACKGROUND .............................................................................................................................2 The Parties ...........................................................................................................................2 AETN’s Program Of Media-Liability Insurance And AGR’s Role As Its Broker ..............3 PBTV And AETN Sign A Production Agreement ..............................................................6 AGR Obtains Coverage For PBTV Under AETN’s Policies ..............................................7 PBTV Files Suit ...................................................................................................................8 STANDARD OF REVIEW .............................................................................................................9 ARGUMENT .................................................................................................................................10 I. PBTV FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT (FIFTH COUNT) ............................................................................................................................10 A. AGR And PBTV Do Not Have A Contractual Relationship .................................10 B. AGR’s Role As AETN’s Broker Does Not Create A Contractual Relationship With PBTV .......................................................................................13 C. AGR Fulfilled Any Contractual Duty To PBTV ...................................................14 II. PBTV FAILS TO STATE A CLAIM FOR BREACH OF FIDUCIARY DUTY (SIXTH COUNT) ..............................................................................................................16 A. AGR Has No Duty To Third Parties Like PBTV ..................................................16 B. Even If PBTV Were AGR’s Client, AGR Would Not Owe It Fiduciary Duties .....................................................................................................................18 III. PBTV FAILS TO STATE A CLAIM FOR BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING (SEVENTH COUNT) ....................................................19 IV. AGR DID NOT AID AND ABET ANY VIOLATIONS BY DEFENDANT AETN .................................................................................................................................20 CONCLUSION ..............................................................................................................................22 Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 2 of 27 ii TABLE OF AUTHORITIES Cases Page In re Agape Litig., 773 F. Supp. 2d 298 (E.D.N.Y. 2011) .......................................................................... 20, 21, 22 Allied Sheet Metal Works, Inc. v. Kerby Saunders, Inc., 619 N.Y.S.2d 260 (N.Y. App. Div. 1994) ................................................................................ 10 American Ref-Fuel Co. of Hempstead v. Resource Recycling, Inc., 671 N.Y.S.2d 93 (N.Y. App. Div. 1998) ...................................................................... 16, 17, 18 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................. 9, 22 ATSI Commc’ns v. The Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007).......................................................................................................... 9 Berman v. Morgan Keegan & Co., No. 10-cv-5866, 2011 WL 1002683 (S.D.N.Y. Mar 14, 2011) ............................................ 9, 21 Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc., 885 N.Y.S.2d 276 (N.Y. App. Div. 2009) .......................................................................... 16, 18 Cho v. 401-401 57th St. Realty Corp., 752 N.Y.S.2d 55 (N.Y. App. Div. 2002) .................................................................................. 20 Cortec Indus. v. Sum Holding, 949 F.2d 42 (2d Cir. 1991) ............................................................................................................... 3 Crabtree v. Tristar Automotive Group, Inc., 776 F. Supp. 155 (S.D.N.Y. 1991) ........................................................................................... 11 Davis v. Blige, 505 F.3d 90 (2d Cir. 2007)........................................................................................................ 11 Dreyfuss v. Etelecare Glob. Sols.-U.S. Inc., 349 F. App’x 551 (2d Cir. 2009) .............................................................................................. 10 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) ............................................................................................................ 11, 12 Fasolino Foods Co., Inc., v. Banca Nazionale del Lavoro, 961 F.2d 1052 (2d Cir. 1992).................................................................................................... 19 Federal Ins. Co. v. Spectrum Ins., 758 N.Y.S.2d 21 (N.Y. App. Div. 2003) ............................................................................ 13, 14 Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 3 of 27 iii Fleming v. Ponziani, 247 N.E.2d 114 (N.Y. 1969) ..................................................................................................... 10 Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595 (2d Cir. 1991)...................................................................................................... 16 Glynn v. United House of Prayer For All People, 741 N.Y.S.2d 499 (N.Y. App. Div. 2002) .......................................................................... 13, 14 Goldman v. Barrett, No. 15-civ-9223 (PGG), 2016 WL 5942529 (S.D.N.Y. Aug. 24, 2016) .................................... 3 Harris v. Mills, 572 F.3d 66 (2d Cir. 2009).......................................................................................................... 9 Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73 (2d Cir. 2002)........................................................................................................ 19 Int’l Audiotext Network v. AT&T., 893 F. Supp. 1251 (62 F.3d 69 (2d Cir. 1995) ............................................................................ 3 Int’l Customs Assocs., Inc. v. Ford Motor Co., 893 F. Supp. 1251 (S.D.N.Y. 1995), aff’d, 201 F.3d 431 (2d Cir. 1999) ................................. 11 Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131 (2d Cir. 2011)...................................................................................................... 16 Jordan v. Verizon Corp., No. 08-cv-6414, 2008 WL 5209989 (S.D.N.Y. Dec. 10, 2008) ......................................... 19, 20 L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2d Cir. 2011)...................................................................................................... 19 Leavitt-Berner Tanning Corp. v. Am. Home Assur. Co., 516 N.Y.S.2d 992 (N.Y. App. Div. 1987) .......................................................................... 17, 18 Lerner v. Fleet Bank, N.A., 459 F.3d 273 (2d Cir. 2006).................................................................................................. 9, 21 Marson Const. Corp. v. Illinois Union Ins. Co., 714 N.Y.S.2d 207 (N.Y. App. Div. 2000) .......................................................................... 13, 14 McKenzie v. Fishko, No. 12CV7297-LTS-KNF, 2015 WL 685927 (S.D.N.Y. Feb. 13, 2015)....................... 9, 10, 12 Miller v. Distribution Sys. of Am., Inc., 670 N.Y.S.2d 668 (N.Y. App. Div. 1997) ................................................................................ 10 Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 4 of 27 iv Murphy v. Kuhn, 682 N.E.2d 972 (N.Y. 1997) ............................................................................................... 14, 15 People v. Liberty Mut. Ins. Co., 861 N.Y.S.2d 294 (N.Y. App. Div. 2008) ................................................................................ 18 Pomerance v. McGrath, 2 N.Y.S.3d 436 (N.Y. App. Div. 2015), leave to appeal dismissed, 32 N.E.3d 958 (N.Y. 2015) ............................................................ 21 Purvi Enterprises, LLC v. City of New York, 879 N.Y.S.2d 410 (N.Y. App. Div. 2009) ................................................................................ 21 Regno v. City of New York, 931 N.Y.S.2d 71 (N.Y. App. Div. 2011) ) ................................................................................ 11 RJ Capital, S.A. v. Lexington Capital Funding III, Ltd., No. 10-cv-24(PGG), 2011 WL 3251554 (S.D.N.Y. July 28, 2011) ......................................... 20 Smith v. Fitzsimmons, 584 N.Y.S.2d 692 (N.Y. App. Div. 1992) ................................................................................ 11 St. George v. W.J. Barney Corp., 706 N.Y.S.2d 24 (N.Y. App. Div. 2000) ............................................................................ 17, 18 Sutton Park Dev. Corp. Trading Co. Inc. v. Guerin & Guerin Agency Inc., 745 N.Y.S.2d 622 (N.Y. App. Div. 2002) .......................................................................... 16, 17 Voss v. Netherlands Ins. Co., 8 N.E.3d 823 (N.Y. 2014) ......................................................................................................... 15 Williams Trading LLC v. Wells Fargo Securities, LLC, 553 Fed. App’x 33 (2d Cir. 2014)....................................................................................... 16, 18 Rules and Regulations Page Fed. R. Civ. P. 9(b) ............................................................................................................... 1, 9, 22 Fed. R. Civ. P. 12(b)(6)............................................................................................................... 1, 9 Other Authorities Page § 2:1, Scope, 28 N.Y. Prac., Contract Law § 2:1 ......................................................................... 10 68A N.Y. Jur. 2d Insurance § 507 .......................................................................................... 15, 16 Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 5 of 27 Defendant Aon/Albert G. Ruben Insurance Services, Inc. (“AGR”) respectfully submits this memorandum of law in support of its motion to dismiss the complaint of plaintiffs Planete Bleue Television, Inc. and Planete Bleue Television II, Inc. (collectively, “PBTV”) as against AGR for failure to state a claim upon which relief can be granted and for failure to state with particularity the circumstances constituting fraud or mistake. See Fed. R. Civ. P. 9(b), id. at 12(b)(6). PRELIMINARY STATEMENT AGR is an insurance broker for defendant A&E Television Networks, LLC (“AETN”), which signed a production agreement with plaintiffs PBTV regarding a television series initially known as Killer Kids. As it did for many of AETN’s third-party production partners, and at AETN’s request, AGR obtained insurance coverage for Plaintiffs under AETN’s existing program of insurance. AGR next heard from Plaintiffs over two years later, when they filed this suit alleging that AGR had “delayed [insurance] approvals” for Plaintiffs and “favor[ed]” another production company in obtaining insurance coverage. (Compl. ¶¶ 124-27.) However, Plaintiffs’ claims against AGR are meritless. Even taking their factual allegations as true— which they are not—Plaintiffs have failed to state any legally cognizable claims. As such, each of Plaintiffs’ claims must be dismissed. First, Plaintiffs cannot establish a claim against AGR for breach of contract because Plaintiffs and AGR do not have a contract. Plaintiffs’ contracts are with AETV, and AGR was not a party to them. Because Plaintiffs cannot establish a valid contract between themselves and AGR, their breach of contract claim against AGR must fail. Second, Plaintiffs cannot establish a claim against AGR for breach of fiduciary duty because AGR has no duty to third parties like Plaintiffs—much less a fiduciary duty. Moreover, even if Plaintiffs were clients instead of third parties—which they are not—New York law states Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 6 of 27 2 that the relationship between insurance brokers and clients is not a fiduciary one. As such, because Plaintiffs cannot establish that they were owed any fiduciary duties by AGR, their claim for breach of fiduciary duty must fail. Third, Plaintiffs cannot establish a claim against AGR for breach of the duty of good faith and fair dealing because, while that duty is implied in all contracts, Plaintiffs and AGR do not have a contract. Moreover, even if Plaintiffs and AGR did have a contract, New York does not recognize an independent claim for breach of the duty of good faith and fair dealing. As such, this claim must fail. Fourth and finally, Plaintiffs cannot establish a claim against AGR for aiding and abetting contractual violations by AETN because New York does not recognize a claim for aiding and abetting the violation of a contract. Plaintiffs also cannot establish a claim against AGR for aiding and abetting fraud by AETN because Plaintiffs have not met the heightened pleading standards applicable to fraud claims. As such, Plaintiffs’ aiding and abetting claim must fail. For these reasons, this Court should dismiss the Complaint as against AGR with prejudice. BACKGROUND The Parties Defendant AGR is an insurance broker that works exclusively in the entertainment industry. As a broker, AGR acts on behalf of its clients to seek and obtain insurance coverage from a variety of insurance companies. (Dkt. 1 (hereinafter “Compl.”) at ¶ 121.) AGR’s clients work in a wide range of areas, including motion pictures, radio and television broadcasting, television commercial production, theatrical and sports venues, professional sports teams, Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 7 of 27 3 Broadway shows, live events and touring companies, and for many other related activities that support the entertainment industry. Defendant A&E Television Networks, LLC is an American media company and one of AGR’s clients. (Id. at ¶ 8.) AETN owns and operates cable and satellite television channels, which air content produced by AETN and content produced by third-party production companies in partnership with AETN. (Id.) Plaintiffs Planete Bleue Television, Inc. and Planete Bleue Television II, Inc. (collectively, “PBTV”) are television production companies. (Id. at ¶ 7.) In 2012, PBTV and AETN signed a production agreement by which PBTV agreed to “produce a fall 2013 season of [a television program initially titled Killer Kids, and AETN would use a U.S. producer for its fall 2012 season” of the show. (Id. at ¶ 22.) AETN’s Program Of Media-Liability Insurance And AGR’s Role As Its Broker Since approximately 2008, AGR has provided insurance brokerage services for AETN. As AETN’s insurance broker, AGR works with various insurance companies to secure a program of media-liability insurance for AETN. (Id. at ¶ 121.) At the time of PBTV and AETN’s production agreement, AETN’s program of media-liability insurance included the following policies (collectively, the “Policies”)1: 1 On a motion to dismiss, the Court may consider “any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference.” Int’l Audiotext Network v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus. v. Sum Holding, 949 F.2d 42, 47-48 (2d Cir. 1991)); see also Goldman v. Barrett, No. 15-cv-9223 (PGG), 2016 WL 5942529, at *2 n.2 (S.D.N.Y. Aug. 24, 2016). Indeed, “‘when a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it solely relies and which is integral to the complaint,’ the court may nevertheless take the document into consideration in deciding the defendant’s motion to dismiss, without converting the proceeding to one for summary judgment.” Int’l Audiotext, 62 F.3d at 72 (quoting Cortec Indus., 949 F.2d at 47-48). PBTV refers to and relies on the production agreement between AETN and PBTV (which incorporates the insurance coverage agreements, infra) and the insurance coverage afford to PBTV under the AETN Policies. (See Compl. ¶¶ 1, 47-54, 78-79, & 123-31.) As such, Plaintiffs’ agreements and the Policies may be considered by this Court in Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 8 of 27 4 • the Commercial Lines Policy issued by Great Divide Insurance Company, Policy No. CNA1025659-14, for the coverage period March 1, 2012 to March 1, 2015 (“CL Policy I,” attached hereto as Exhibit 12); • the Commercial Lines Policy issued by Great Divide Insurance Company, Policy No. CUA1025744-14, for the coverage period March 1, 2012 to March 1, 2015 (“CL Policy II,” attached hereto as Exhibit 2); • the Film & Entertainment Liability Policy issued by AXIS Insurance Company, Policy No. MCN000158551201, for the coverage period March 1, 2012 to April 1, 2013 (extended by endorsement) (“FEL Policy I,” attached hereto as Exhibit 3); and • the Film & Entertainment Liability Policy issued by AXIS Insurance Company, Policy No. MCN000193951301, for the coverage period April 1, 2013 to April 1, 2014 (“FEL Policy II,” attached hereto as Exhibit 4) Each of the Policies provided coverage to AETN as a Named Insured or First Named Insured. (See CL Policy I at 1, CL Policy II at 1, FEL Policy I at 14 (Endorsement No. 1); FEL Policy II at 15 (Endorsement No. 2).) In situations where AETN worked with third-party production companies on productions for AETN’s networks, AETN’s program of media-liability insurance also “afford[ed those third party] Producer[s] coverage . . . in connection with the production[s]” they created for AETN. (See, e.g., Dkt. 43-2 at 43 (Redacted Copy of AETN’s Contract with Plaintiff (Part II)).) To do addressing AGR’s motion to dismiss. 2 All exhibits referenced herein are Exhibits to the Declaration of Renita Sharma, filed in Support of AGR’s Motion to Dismiss the Complaint. Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 9 of 27 5 so, each of the AETN Policies included provisions that allowed AETN to add third-party production partners as additional insured parties, subject to the insurers’ review and acceptance. CL Policies I and II provided coverage for, inter alia, “Production Compan[ies]” with respect to “Insured Production[s].” These policies defined “Insured Productions” to include “any Television Pilot, Series, Specials or Commercials . . . that has been declared to” the insurer. (CL Policy I at 10 (Named Insured Endorsement); CL Policy II at 48 (Named Insured Endorsement).) And FEL Policies I and II provided coverage for, inter alia, “Program Providers furnishing Matter to the First Named Insured,” AETN. (FEL Policy I at 14 (Endorsement No. 1); FEL Policy II at 15 (Endorsement No. 2).) These policies defined “Program Provider” as “a production company, person or entity . . . furnishing Matter to A&E Television Networks (‘AETN’), but only as respects the Scheduled Production(s) on file with the Company and AETN.” (FEL Policy I at 20 (Endorsement No. 4); FEL Policy II at 20 (Endorsement No. 4).) To obtain coverage for partner production companies, AETN’s production agreements with third-party production companies included a separate contract known as the AETN Insurance Coverage Program for Production Companies. (See, e.g., Dkt. 43-2 at 43 (Redacted Copy of AETN’s Contract with Plaintiff (Part II)).) Under the AETN Insurance Coverage Program for Production Companies, AETN agreed to “direct [AGR] to contact Producer promptly after the terms for the Production had been agreed upon” by AETN and the producer. (Id.) The producer in turn agreed to “complet[e] the Television Production Insurance Application (set forth as Exhibit B-2)” and provide it to AGR. (Id.) When directed to do so by AETN, AGR would correspond with AETN’s insurers to add AETN’s third-party production partners to the AETN Policies. (See id.) AGR was not a party or signatory to AETN’s Insurance Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 10 of 27 6 Coverage Program for Production Companies. (See id. at 44 (containing signature blocks for Producer and AETN).) PBTV And AETN Sign A Production Agreement In November 2012, AETN and PBTV signed a production agreement for nine episodes of a series known as Killer Kids. (Compl. ¶ 26; Dkts. 43-1 and 43-2 (Redacted Copy of AETN’s Contract with Plaintiff (Parts I and II)) (hereinafter, collectively, the “Production Agreement”).)3 The Production Agreement set out the parties’ ownership rights, payment schedules, and technical specifications. (Production Agreement at Dkt. 43-1, 1-11.) The Production Agreement also required that PBTV “comply with AETN’s insurance requirements,” including by completing the attached AETN Insurance Coverage Program for Production Companies and accompanying documents to secure coverage under existing AETN’s program of insurance. (Id. at 18-19.) By signing the Production Agreement, PBTV agreed that it was “aware that the insurance [required by the Production Agreement] . . . must be obtained through AON/Albert G. Ruben Company.” (Id. at 19.) AGR was not a party to the Production Agreement. (Id. at 21.) Pursuant to its obligations under the Production Agreement, PBTV signed the AETN Insurance Coverage Program for Production Companies and the accompanying forms, which sought information regarding the Killer Kids production, on January 11, 2013. (Ex. 5 (the “January 11, 2013 Insurance Coverage Agreement”).) As with the Production Agreement, AGR was not a party to the January 11, 2013 Insurance Coverage Agreement. (Id. at 2.) 3 The Complaint alleges that PBTV “signed off on” the “[]production agreement[] between PBTV and AETN” “on November 7, 2016,” and that AETN “signed off on” the agreement on November 12, 2012. (Compl. ¶ 26.) PBTV’s reference to 2016 appears to be a typo, and the parties’ signatures are dated November 12, 2012. (Production Agreement at 21.) Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 11 of 27 7 AGR Obtains Coverage For PBTV Under AETN’s Policies Pursuant to the requirements of its Production Agreement and Insurance Coverage Agreement with AETN, PBTV submitted its completed January 11, 2013 Insurance Coverage Agreement and accompanying forms to AGR. (Id.) AGR immediately began the process of obtaining coverage for PBTV as secondary insureds for the nine episodes of Killer Kids series contemplated by the Production Agreement. On January 23, 2013—only twelve days after PBTV signed the Insurance Coverage Agreement—AGR issued Certificates of Insurance reflecting that PBTV had been added as an additional insured under AETN’s Policies. Ex. 6 (Certificates of Insurance for CL Policy I, CL Policy II, and FEL Policy I).4 On October 21, 2013, PBTV supplemented its January 11, 2013 Insurance Coverage Agreement for a separately-ordered tenth episode of the Killer Kids series. (Compl. ¶ 46; Ex. 8 (the “October 21, 2013 Insurance Coverage Agreement”).) Again, AGR moved expeditiously to obtain coverage and on October 29, 2013—only eight days after PBTV signed the additional Insurance Coverage Agreement—AGR issued Certificates of Insurance reflecting that PBTV had been added as an additional insured under AETN’s Policies. Ex. 9 (Certificates of Insurance for CL Policy I, CL Policy II, and FEL Policy II).5 PBTV did not request any additional coverage under AETN’s Policies. 4 On April 16, 2013, AGR issued a Certificate of Insurance for now in-force FEL Policy II, reflecting the new policy number. Ex. 7 (Certificate of Insurance for FEL Policy II). 5 On December 6, 2013, PBTV contacted AGR and requested revised Certificates of Insurance, because PBTV had listed the incorrect corporate name in the forms accompanying its January 11, 2013 Insurance Coverage Agreement. (Ex. 8 at 7; Ex. 10 (December 6, 2013 Correspondence.) AGR provided the revised Certificates of Insurance the same day. (Id.) Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 12 of 27 8 PBTV Files Suit Over two years later, on December 2, 2016, PBTV filed this lawsuit against AETN, Aon Corporation and the named entity “Aon d/b/a Albert G. Ruben Insurance Service, Inc.” PBTV made no factual allegations regarding Aon Corporation in its own capacity; PBTV only alleged that actions were taken by Aon Corporation “via” the second entity. (Compl. ¶¶ 123-27.) PBTV mischaracterized and improperly named the relevant entities. On August 29, 2017, the parties submitted a stipulation to the Court amending the Complaint to discontinue and dismiss all claims against defendant Aon Corporation and to substitute AGR for the fictitious entity “Aon d/b/a Albert G. Ruben Insurance Service, Inc.” This Court approved that amendment on August 30, 2017. (Dkt. 50.) The Complaint, as amended, includes three counts related to AGR: a claim that AGR “breached its contract with plaintiff” (Compl. (Count Five) ¶¶ 145-46); a claim that AGR “breached its fiduciary duty to plaintiff” (id. (Count Six) at ¶¶ 147-48); and a claim that AGR violated “the duty of good faith and fair dealing implied in all New York contracts” (id. (Count Seven) at ¶¶ 149-51). Counts Five and Six also allege that AGR “aided and abetted defendant AETN and [nonparty] 44 BLUE in activity directed to plaintiff.” (Id. at ¶¶ 146, 148.) None of PBTV’s claims state a plausible claim for relief. First, PBTV’s claim for breach of contract fails because PBTV has not—and cannot—allege that it has a contractual relationship with AGR. Second, PBTV’s claim for breach of fiduciary duty fails because as a broker to AETN, AGR had no fiduciary duty to PBTV. Third, PBTV’s claim for a breach of the duty of good faith and fair dealing fails first because that duty cannot arise absent a contract, and second, because any claim would be duplicative of PBTV’s claim for breach of contract. And fourth, PBTV’s claim of aiding and abetting fails because New York law does not recognize a claim for aiding and abetting a violation of a contractual or quasi-contractual duty, and because PBTV has Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 13 of 27 9 not pled any liability related to fraud with particularity. As such, PBTV’s Complaint against AGR should be dismissed with prejudice. STANDARD OF REVIEW AGR moves to dismiss PBTV’s Complaint for failure to state a claim upon which relief can be granted and for failure to state with particularity the circumstances constituting fraud or mistake. See Fed. R. Civ. P. 9(b), id. at 12(b)(6). In deciding a Rule 12(b)(6) motion, the Court applies a “plausibility standard.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). Although the Court must accept all allegations as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also Harris, 572 F.3d at 72. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. In addition, to the extent that a plaintiff alleges fraud or mistake, he must allege those claims with particularity. Fed. R. Civ. P. 9(b); Iqbal, 556 U.S. at 679. “Allegations that are conclusory or unsupported by factual assertions are insufficient.” ATSI Commc’ns v. The Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007). This heightened pleading standard also applies where plaintiff alleges aiding and abetting of claims sounding in fraud. Berman v. Morgan Keegan & Co., No. 10-CV-5866, 2011 WL 1002683, at *7 (S.D.N.Y. Mar 14, 2011) (citing Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292-93 (2d Cir. 2006)) (“[a] plaintiff alleging aiding and abetting claims sounding in fraud must also plead the elements of aiding and abetting with particularity”). Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 14 of 27 10 ARGUMENT I. PBTV FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT (FIFTH COUNT) PBTV’s Fifth Count alleges that “Defendant [AGR] breached its contract with plaintiff[s].” (Compl. ¶¶ 145-46.) However, AGR and PBTV do not have a contractual relationship. Because there is no direct contract between AGR and PBTV, and because PBTV cannot base its claim for breach of contract on any relationship between AGR and AETN, PBTV has failed to state a claim for breach of contract by AGR. Moreover, even if PBTV could establish the existence of a contract, AGR fulfilled any duty under that contract. As such, PBTV’s claim for breach of contract should be dismissed. A. AGR And PBTV Do Not Have A Contractual Relationship “A party asserting a breach of contract claim has the burden of proving by a preponderance of the evidence that a good and valid contract having a legal inception is binding upon the defendant.” § 2:1, Scope, 28 N.Y. Prac., Contract Law § 2:1 (citing Fleming v. Ponziani, 247 N.E.2d 114, 119 (N.Y. 1969)); see also Dreyfuss v. Etelecare Glob. Sols.-U.S. Inc., 349 F. App’x 551, 555 (2d Cir. 2009) (“under New York law a party seeking to enforce a contract must prove not only the existence of the contract, but also its terms”) (citing Allied Sheet Metal Works, Inc. v. Kerby Saunders, Inc., 619 N.Y.S.2d 260, 263 (N.Y. App. Div. 1994) (“The party seeking to enforce a contract bears the burden to establish that a binding agreement was made and to prove the terms of the contract.”)); Miller v. Distribution Sys. of Am., Inc., 670 N.Y.S.2d 668, 669 (N.Y. App. Div. 1997) (“plaintiff’s cause of action for breach of contract was properly dismissed” where “plaintiff failed to meet his burden of proving the existence of a contract which defendant breached”). Indeed, it is axiomatic that “[t]o prevail on a claim for breach of contract,” the first element a plaintiff “must establish [is] the existence of an Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 15 of 27 11 agreement” between the parties. McKenzie v. Fishko, No. 12CV7297-LTS-KNF, 2015 WL 685927, at *7 (S.D.N.Y. Feb. 13, 2015); see also Regno v. City of New York, 931 N.Y.S.2d 71, 72 (N.Y. App. Div. 2011) (dismissal of breach of contract claim affirmed where “[t]here was no written indemnity agreement in existence between the parties on the date of” any breach). As the Supreme Court has stated, “[i]t goes without saying that a contract cannot bind a nonparty.” EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002); see also Davis v. Blige, 505 F.3d 90, 103 (2d Cir. 2007) (calling the prohibition against a contract binding a nonparty a “fundamental principle of contract law”); Int’l Customs Assocs., Inc. v. Ford Motor Co., 893 F. Supp. 1251, 1255 (S.D.N.Y. 1995), aff’d, 201 F.3d 431 (2d Cir. 1999) (“with respect to the contract claim, a contract cannot bind a non-party”). “As a general rule, privity or its equivalent remains the predicate for imposing liability for nonperformance of contractual obligations.” Smith v. Fitzsimmons, 584 N.Y.S.2d 692, 695 (N.Y. App. Div. 1992); see also Crabtree v. Tristar Automotive Group, Inc., 776 F. Supp. 155, 166 (S.D.N.Y. 1991) (“It is hornbook law that a non-signatory to a contract cannot be named as a defendant in a breach of contract action unless it has thereafter assumed or been assigned the contract.”). As such, the existence of a contract between the parties is a necessary predicate for a claim of breach of contract. PBTV cannot prove the existence of a contract between PBTV and AGR. More importantly, however, PBTV has not even alleged the existence of such a contract. PBTV’s Complaint alleges that PBTV and AETN “signed . . . [a] formal contract, designated a ‘production agreement’ between PBTV and AETN,” in November 2012. (Compl. ¶ 26.) PBTV further alleges that “the true agreement” between PBTV and AETN was decided orally on a “June 29, 2012 conference call between Jean Leclerc, representing PBTV” and three representatives for AETN—Charles Wright, AETN in-house Counsel; Thomas Moody, AETN Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 16 of 27 12 Senior Vice-President of Programing; and Maggie Reilly-Brooks, AETN Senior Vice-President of Legal and Business Affairs. (Id. at ¶ 40.) PBTV then alleges that it was this contract—the production agreement, as modified to reflect the oral “true agreement”—that caused PBTV to seek insurance through AGR because, “[p]ursuant to the production agreement [between PBTV and AETN], use of [AGR] was mandatory.” (Id. at ¶ 123.) PBTV does not allege that AGR was a party to these alleged agreements between PBTV and AETN, or that PBTV ever separately agreed to or signed a contract with AGR. As such, even accepting each of PBTV’s allegations as true, PBTV has not pled a breach of contract claim against AGR because PBTV has not pled a contract with AGR. As PBTV’s Complaint makes clear, AGR was not a party to the written agreements between AETN and PBTV, and AGR was not a party to any oral agreement between AETN and PBTV. (See id. at ¶¶ 26, 40, 123.) PBTV admits that it used AGR’s services because it was mandated by the Production Agreement between PBTV and AETN (id. at ¶ 124)—but AGR was not a party to the Production Agreement and therefore cannot be bound by it. Waffle House, 534 U.S. at 294. PBTV has not alleged—because one does not exist—any other contractual relationship with AGR.6 As such, because PBTV cannot establish the existence of an agreement between PBTV and AGR, it has not established “the predicate for imposing liability for nonperformance of contractual obligations” and its claim for breach of contract against AGR must be dismissed. Smith, 584 N.Y.S.2d at 695; see McKenzie, 2015 WL 685927, at *7. 6 To the extent PBTV purports to base its claim upon the Policies, AGR is not a party to the Policies. See CL Policy I, CL Policy II, FEL Policy I, & FEL Policy II. Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 17 of 27 13 B. AGR’s Role As AETN’s Broker Does Not Create A Contractual Relationship With PBTV As discussed above, pursuant to AETN’s request and its Production Agreement with PBTV, AGR obtained coverage for PBTV as an additional named insured on AETN’s existing Policies. PBTV’s status as an additional insured on those Policies is dispositive of PBTV’s breach of contract claim against AGR. New York law is clear and unanimous that insurance brokers do not owe contractual (or extra-contractual) duties to additional insureds. In Federal Insurance Co. v. Spectrum Insurance, 758 N.Y.S.2d 21 (N.Y. App. Div. 2003), plaintiff sued a “broker who allegedly failed to procure sufficient insurance coverage” for it “as additional insureds” on a contractor’s policies. 758 N.Y.S.2d at 22. Plaintiff claimed that the broker had a duty to provide it with the insurance requested. However, the First Department found that “the broker’s duty is to its customer (here, the contractor) and not to additional insureds,” and affirmed the dismissal of plaintiff’s claim. Id. In Glynn v. United House of Prayer For All People, 741 N.Y.S.2d 499 (N.Y. App. Div. 2002), third-party plaintiff United House of Prayer sued its general contractor LMA and the contractor’s broker for failing to name the United House of Prayer as an additional insured on the contractor’s general and excess liability insurance policies. Id. at 503. The United House of Prayer claimed that it was “presented with a certificate of insurance by LMA’s broker” which showed that it was covered, and by failing to obtain that coverage, the broker had violated an agreement with the United House of Prayer. Id. The Court affirmed the dismissal of the claim, finding that the broker, “having had no contractual relationship with UHP, and not having otherwise been in privity with it, was under no duty to UHP that might serve as a predicate for UHP’s claim.” Id. Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 18 of 27 14 Likewise, in Marson Construction Corp. v. Illinois Union Insurance Co., 714 N.Y.S.2d 207 (N.Y. App. Div. 2000), plaintiffs sued an insurance broker that had provided a certificate of insurance which incorrectly showed that the plaintiffs had been added to an existing policy as an additional insured. Id. at 208. The First Department affirmed dismissal of their claim, holding that, inter alia, the claim was improper where “there was no privity between plaintiff general contractor and defendants-respondents, the insurance broker and agent for the subcontractor.” Id. Just as in Federal Insurance, Glynn, and Marson, PBTV here brings a claim against its contract-counterparty’s insurance broker regarding that contract-counterparty’s insurance policies—and just as in Federal Insurance, Glynn, and Marson, PBTV’s claim must be dismissed for lack of privity. AGR added PBTV to AETN’s Policies as an additional insured, pursuant to AGR’s duty to its client AETN. PBTV was not a client of AGR’s, nor was PBTV in privity with AGR. PBTV’s addition to the Policies at AETN’s request did not give PBTV rights against AGR, nor did it obligate AGR to PBTV. Because there was no contract between AGR and PBTV (see supra Section I(A)), and because PBTV’s addition to the Policies by AGR did not create a “duty to [PBTV] that might serve as a predicate for [PBTV’s] claim,” Glynn, 741 N.Y.S.2d at 503, PBTV’s claim against AGR for breach of contract must be dismissed C. AGR Fulfilled Any Contractual Duty To PBTV In all events, even if AGR were considered to have a client relationship with PBTV, AGR fulfilled any duty it owed. “Generally, the law is reasonably settled on initial principles that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage.” Murphy v. Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 19 of 27 15 Kuhn, 682 N.E.2d 972, 974 (N.Y. 1997). This is the extent of a broker’s duty.7 Furthermore, where a broker is unable to obtain coverage for a potential insured because the potential insured does not provide sufficient information, the broker is not liable for the failure to procure insurance. 68A N.Y. Jur. 2d Insurance § 507. Here, it is undisputed that PBTV submitted the January 11, 2013 Insurance Coverage Agreement and the October 21, 2013 Insurance Coverage Agreement to AGR, and that AGR transmitted that information to A&E’s existing insurers. (See Compl. ¶ 123; Exs. 5 & 8.) It also is undisputed that, in each instance where PBTV requested coverage, the carriers promptly bound that coverage. (See Exs. 5, 6, 8, & 9.) For PBTV’s initial nine-episode series with AETN, AGR issued Certificates of Insurance reflecting that PBTV had been added as an additional named insured under AETN’s Policies within twelve days of PBTV’s signing of the January 11, 2013 Insurance Coverage Agreement (see Exs. 5 & 6); for PBTV’s final one-episode agreement with AETN, AGR issued Certificates with eight days of PBTV’s signing of the October 21, 2013 Insurance Coverage Agreement (see Exs. 8 & 9). PBTV cannot demonstrate any violation of the limited duties owed by an insurance broker to a client. As such, even if PBTV were AGR’s “client”—which it was not—AGR “obtain[ed the] requested coverage for [that] client[] within a reasonable time,” and fulfilled any duty it owed. Murphy, 682 N.E.2d at 7 While in Murphy the New York Court of Appeals noted that “other jurisdictions have recognized [] an additional duty of advisement [by insurance brokers] in exceptional situations,” it held that the “relationship established in the instant case does not rise to the level of these exceptional situations and we refrain from determining when the special relationship analysis may apply in the insurance context.” Murphy, 682 N.E.2d at 975-76. In a later case, the Court of Appeals again recognized the possibility that a special relationship could give rise to additional duties on a broker, but cautioned that “special relationships in the insurance brokerage context are the exception, not the norm.” Voss v. Netherlands Ins. Co., 8 N.E.3d 823, 829 (N.Y. 2014). In both cases, the Court of Appeals stated that if such a special relationship analysis did apply, insureds would “bear the burden of proving the specific undertaking.” Murphy at 976; Voss at 829. Here, as discussed infra, PBTV has not pled a special relationship. (Section II(B).) Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 20 of 27 16 974 . As such, PBTV cannot show that any contractual duty was violated by AGR, and its breach of contract claim should be dismissed. II. PBTV FAILS TO STATE A CLAIM FOR BREACH OF FIDUCIARY DUTY (SIXTH COUNT) For its sixth claim, PBTV alleges that AGR “breached its fiduciary duty to plaintiff.” (Compl. ¶¶ 147-48.) First, under New York law, AGR does not owe a third-party like PBTV any duty, fiduciary or otherwise. And second, even if PBTV were AGR’s “client”—which it was not—New York law is clear that brokers do not owe fiduciary duties to clients. Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc., 885 N.Y.S.2d 276, 278 (N.Y. App. Div. 2009). As such, PBTV’s claim for breach of fiduciary duty must be dismissed. A. AGR Has No Duty To Third Parties Like PBTV Just as insurance brokers do not owe contractual duties to additional insureds, New York law is clear that brokers do not owe extra-contractual duties to additional insureds. The principle remains the same: brokers owe duties to their clients, not to third-party additional insureds. As such, AGR does not owe any duty to PBTV, must less a fiduciary duty. As such, PBTV’s claim for breach of a fiduciary duty must be dismissed. The first element of a claim for breach of fiduciary duty is “the existence of a fiduciary duty.” Williams Trading LLC v. Wells Fargo Securities, LLC, 553 Fed. App’x 33, 35 (2d Cir. 2014) (quoting Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 138 (2d Cir. 2011)). A “fiduciary relationship exists under New York law ‘when one [person] is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.’” Williams Trading, 553 Fed. App’x at 35 (quoting Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 599 (2d Cir. 1991)). Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 21 of 27 17 A broker does not owe any duty, fiduciary or otherwise, to parties other than its clients. In American Ref-Fuel Co. of Hempstead v. Resource Recycling, Inc., 671 N.Y.S.2d 93 (N.Y. App. Div. 1998), plaintiff American Ref-Fuel was contractually entitled to be named as an additional insured on its subcontractor Universal’s policy. Id. at 96. Universal asked its broker, the Nelsen Agency, “to add the plaintiff as an additional insured”; the Nelsen Agency issued a certificate of insurance indicating that it had done so, and “plaintiff permitted Universal to proceed with its performance under the subcontract.” Id. at 95-96. But plaintiff had not been added to Universal’s policy, and when an accident occurred, the plaintiff sued (among others) the Nelsen Agency for failing to obtain coverage. Id. The Court denied the claim, finding that “plaintiff cannot seek damages from Nelsen Agency for its failure to procure the insurance requested by Universal. Assuming arguendo that Nelsen Agency was negligent, it breached a duty owed to Universal. Nelsen Agency owed no duty to the plaintiff.” Id. at 96-97 (citations omitted) (emphasis added). Similarly, in St. George v. W.J. Barney Corp., 706 N.Y.S.2d 24 (N.Y. App. Div. 2000), a subcontractor, Kurtz, sued its contractor’s insurance broker, arguing that the contractor had promised to add Kurtz to an existing insurance policy. 706 N.Y.S.2d at 25. Kurtz argued that the broker had violated duties owed to Kurtz when it failed to obtain coverage for Kurtz as an additional insured. Id. The Court granted summary judgment to the broker, finding, inter alia, that “while [the broker] may have arguably breached its duty to its client [by failing to add Kurtz to the policy], it cannot be held liable to Kurtz, the additional insured, to whom it owed no duty.” Id. (emphasis added); see also Leavitt-Berner Tanning Corp. v. Am. Home Assur. Co., 516 N.Y.S.2d 992, 994 (N.Y. App. Div. 1987) (plaintiff claimed that its contract with debtor entitled it to be named a “loss payee” under debtor’s insurance policy, and sued debtor’s broker and Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 22 of 27 18 insurer; the Court found that neither the broker nor insurer “owed a duty to [plaintiff] Norstar; rather, their duty ran to” the debtor-insured). Just like the brokers in American Ref-Fuel, St. George, and Leavitt-Berner, AGR owed no duty—fiduciary or otherwise—to PBTV. AGR’s duty was to its client, AETN (and it fulfilled that duty by obtaining coverage for PBTV under AETN’s Policies, as AETN directed). As such, PBTV cannot establish the first element of a claim for breach of fiduciary duty, “the existence of a fiduciary duty,” Williams Trading, 553 Fed App’x at 35, and PBTV’s claim against AGR for breach of fiduciary duty must be dismissed. B. Even If PBTV Were AGR’s Client, AGR Would Not Owe It Fiduciary Duties Notwithstanding that PBTV is not AGR’s client, even if PBTV were AGR’s client, its relationship with AGR would not have been fiduciary in nature and therefore PBTV cannot have a claim for breach of fiduciary duty. New York courts have held that “absent a special relationship, a claim for breach of fiduciary duty does not lie” against a broker. Bruckmann, 885 N.Y.S.2d at 278; see also infra at 15 n.7, People v. Liberty Mut. Ins. Co., 861 N.Y.S.2d 294, 296 (N.Y. App. Div. 2008) (holding that “the court did err in failing to dismiss in its entirety the fifth cause of action, which alleges breach of fiduciary duty, since, absent a special relationship that does not exist here, an insurance agent or broker owes no common-law duty to its customer other than to obtain the policy requested within a reasonable period of time, or to inform the customer that it could not do so”); Sutton Park Dev. Corp. Trading Co. Inc. v. Guerin & Guerin Agency Inc., 745 N.Y.S.2d 622, 624 (N.Y. App. Div. 2002) (“While extraordinary or special circumstances may warrant imposition of liability upon an insurance broker for breach of such a duty, the facts alleged herein establish nothing more than that the relationship between plaintiffs and Guerin was a common consumer-insurance broker relationship. Consequently, those Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 23 of 27 19 portions of the fifth and sixth causes of action which were premised on a breach of fiduciary duty were properly dismissed.”) (citations omitted). In this case, PBTV does not allege a “special relationship” with AGR; in fact, it alleges only that PBTV used AGR because it was mandated by PBTV’s Production Agreement with AETN. (Compl. ¶ 123.) There is nothing in the Complaint that could be construed to establish anything more than, at most, a “common consumer-insurance broker relationship.” Sutton Park, 745 N.Y.S.2d at 624. As that relationship does not create any fiduciary obligations, PBTV’s claim against AGR for breach of fiduciary duty must be dismissed. III. PBTV FAILS TO STATE A CLAIM FOR BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING (SEVENTH COUNT) PBTV has also alleged an independent cause of action for a breach of “the duty of good faith and fair dealing implied in all New York contracts.” (Compl. ¶¶ 149-51.) This claim must be dismissed because, as discussed above, PBTV and AGR did not have a contractual relationship. But, even if there were a contractual relationship—which there was not—this claim would fail because under settled New York law, a claim for breach of an implied covenant of good faith and fair dealing does not provide a cause of action separate from a breach of contract claim. “[P]arties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80 (2d Cir. 2002) (citing Fasolino Foods Co., Inc., v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056 (2d Cir. 1992)); see also L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 433 n. 17 (2d Cir. 2011) (“[B]reach of [the duty of good faith and fair dealing] is merely a breach of the underlying contract.”) (internal citations and quotations omitted). “Raising both claims [for breach of contract and breach of the duty of good faith and fair Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 24 of 27 20 dealing] is redundant, and courts confronted with such complaints under New York law regularly dismiss any freestanding claim for breach of the covenant of fair dealing.” Jordan v. Verizon Corp., No. 08-cv-6414, 2008 WL 5209989, at *7 (S.D.N.Y. Dec. 10, 2008). Here, PBTV relies on the same alleged factual predicates in asserting its claims for breach of contract and for breach of the implied duty of good faith and fair dealing. (Compare Compl. ¶¶ 145-46 (Breach of Contract Count) and id. at ¶¶ 149-51 (Good Faith and Fair Dealing Count).) Thus, even if there were a contract, and even if those factual predicates demonstrated a breach of any duty by AGR, PBTV’s claim against AGR for breach of the implied duty of good faith and fair dealing should be dismissed for failure to state a claim. IV. AGR DID NOT AID AND ABET ANY VIOLATIONS BY DEFENDANT AETN Finally, in Counts Five and Six, as well as in other allegations, PBTV claims that AGR “aided and abetted defendant AETN and [nonparty] 44 BLUE in activity directed to plaintiff.” (Compl. ¶¶ 146 & 148.) To the extent such statements are cognizable as a separate claim for aiding and abetting, PBTV appears to be alleging that AGR aided and abetted each of the following alleged violations by AETN: breach of contract (First Count, ¶¶ 132-33), breach of the implied duty of good faith and fair dealing (Second Count, ¶¶ 134-36), and reformation and unilateral mistake or fraud (Fourth Count, ¶¶ 139-44).8 However, PBTV has not stated an aiding and abetting claim against AGR related to any of these theories. “To plausibly state a claim premised on aiding and abetting, New York law requires the plaintiff to allege (i) the existence of a violation by the primary wrongdoer; (ii) knowledge of the 8 PBTV’s Third Count seeks “specific performance,” which is “an equitable remedy for a breach of contract, rather than a separate cause of action.” RJ Capital, S.A. v. Lexington Capital Funding III, Ltd., No. 10-cv-24(PGG), 2011 WL 3251554, at *16 (S.D.N.Y. July 28, 2011) (quoting Cho v. 401-401 57th St. Realty Corp., 752 N.Y.S.2d 55, 57 (N.Y. App. Div. 2002)). Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 25 of 27 21 violation by the aider and abettor; and (iii) proof that the aider and abettor substantially assisted in the primary wrong.” In re Agape Litig., 773 F. Supp. 2d 298, 307 (E.D.N.Y. 2011) (citation omitted). First, to the extent that any claim against defendant AETN is dismissed for failure to state a claim, any corresponding claim against AGR for aiding and abetting in those violations also must be dismissed. See id. (holding that to state a claim for aiding and abetting, plaintiff must allege “the existence of a violation by the primary wrongdoer”). Second, to the extent that PBTV alleges that AGR aided and abetted a violation by AETN of a contractual or quasi-contractual duty, such a claim is not cognizable under New York law. New York courts have recognized that “no cause of action exists for aiding and abetting a breach of contract.” Pomerance v. McGrath, 2 N.Y.S.3d 436, 440 (N.Y. App. Div. 2015), leave to appeal dismissed, 32 N.E.3d 958 (N.Y. 2015); see also Purvi Enterprises, LLC v. City of New York, 879 N.Y.S.2d 410, 412 (N.Y. App. Div. 2009) (“To the extent plaintiff alleges that the Cozen O’Connor defendants either conspired with 3206 Emmons to breach the agreement or aided and abetted a breach thereof by 3206 Emmons, these defendants cannot be enjoined from such conduct because no such cause of action exists.”). As such, PBTV cannot state a claim against AGR for aiding and abetting any breach of contract or breach of the implied duty of good faith and fair dealing by AETV. Third and finally, to the extent that PBTV alleges that AGR aided and abetted fraud by AETN, PBTV has failed to plead its claim with the requisite particularity. “A plaintiff alleging aiding and abetting claims sounding in fraud must also plead the elements of aiding and abetting with particularity.” Berman, 2011 WL 1002683, at *7 (citing Lerner, 459 F.3d at 292-93). PBTV has not done so here. Even crediting PBTV’s allegations that AETN committed fraud, Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 26 of 27 22 PBTV has not alleged any particularized facts showing that AGR had “knowledge of the violation by the aider and abettor”—nor has PBTV alleged particularized facts showing that AGR “substantially assisted in the primary wrong” by AETN. See In re Agape Litig., 773 F. Supp. 2d at 307. Indeed, PBTV’s allegations hardly even rise to the level of “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” which the Supreme Court has held “do not suffice.” See Iqbal, 556 U.S. at 678. As such, PBTV’s claim of aiding and abetting fraud does not meet the heightened pleading standards of Rule 9(b) and must be dismissed. CONCLUSION For the foregoing reasons, this Court should dismiss the Complaint as against Aon/Albert G. Ruben Insurance Services, Inc. with prejudice for failure to state a claim upon which relief can be granted and for failure to state with particularity the circumstances constituting fraud or mistake. Dated: September 14, 2017 New York, New York QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Richard I. Werder, Jr. Richard I. Werder, Jr. Renita Sharma QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 (212) 849-7000 rickwerder@quinnemanuel.com renitasharma@quinnemanuel.com Attorneys for Aon/Albert G. Ruben Insurance Services, Inc. Case 1:16-cv-09317-PGG Document 65 Filed 01/05/18 Page 27 of 27