DoubleLine Capital LP et al v. Odebrecht Finance, Ltd et al

REPLY MEMORANDUM OF LAW in Support re: 75 MOTION to Dismiss the Third Amended Complaint. . Document

S.D.N.Y.February 13, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DOUBLELINE CAPITAL LP; DOUBLELINE INCOME SOLUTIONS FUND; and DOUBLELINE FUNDS TRUST (on behalf of its: 1) DOUBLELINE CORE FIXED INCOME FUND SERIES; 2) DOUBLELINE EMERGING MARKETS FIXED INCOME FUND SERIES; and 3) DOUBLELINE SHILLER ENHANCED CAPE® SERIES), Plaintiffs, v. CONSTRUTORA NORBERTO ODEBRECHT, S.A.; ODEBRECHT ENGENHARIA E CONSTRUÇÃO S.A. and ODEBRECHT, S.A., Defendants. Case No. 1:17-cv-4576-GHW REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS THE THIRD AMENDED COMPLAINT ON BEHALF OF CONSTRUTORA NORBERTO ODEBRECHT S.A., ODEBRECHT ENGENHARIA & CONSTRUÇÃO S.A., AND ODEBRECHT S.A. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 1 of 25 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 ARGUMENT ...................................................................................................................................3 I. PLAINTIFFS FAIL TO CURE DEFICIENT LOSS CAUSATION ALLEGATIONS ......................................................................................................3 A. Plaintiffs’ Unchanged Loss Causation Allegations are Subject to Dismissal Pursuant to the August 2018 Opinion .........................................3 B. Claims Arising From the June 2015 Stories Should Be Dismissed .............4 II. PLAINTIFFS FAIL TO ALLEGE ACTIONABLE MISSTATEMENTS ..............5 A. Plaintiffs Fail to Plead That CNO’s Financial Releases Breached Accounting Standards ..................................................................................5 1. Plaintiffs Fail to Plead That Discovery of the Bribery Scheme Was More Than a Remote Possibility During the Relevant Time Period ......................................................................5 2. Plaintiffs Fail to Remedy Deficient Allegations Concerning Revenue and Expense Recognition ..................................................6 3. Plaintiffs Fail to Allege Breaches of IAS 11 Relating to the Recognition of Bribery-Related Expenses .......................................8 B. Plaintiffs Fail to Plead Falsity for Statements in the Offering Memoranda ..................................................................................................9 III. PLAINTIFFS FAIL TO PLEAD SUCCESSOR LIABILITY...............................11 IV. PLAINTIFFS FAIL TO PLEAD CLAIMS AGAINST OSA................................14 A. Plaintiffs Fail to Plead Jurisdiction Over OSA ..........................................14 B. Plaintiffs Fail to Allege Control-Person Liability ......................................16 V. PLAINTIFFS FAIL TO PLEAD CAUSES OF ACTION UNDER STATE LAW ......................................................................................................................19 A. Plaintiffs Fail to Cure the Deficiencies in Their Reliance Allegations .................................................................................................19 B. Plaintiffs Fail to Plead a Conspiracy ..........................................................20 C. Plaintiffs Lack Standing to Assert Claims Under New York Debtor and Creditor Law Sections 276 or 276-a ...................................................20 CONCLUSION ..............................................................................................................................20 Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 2 of 25 ii TABLE OF AUTHORITIES Page Cases 7 West 57th Street Realty Co., LLC v. Citigroup, Inc., 2015 WL 1514539 (S.D.N.Y. Mar. 31, 2015) ......................................................................... 15 Ark. Teacher Ret. Sys. v. Bankrate, Inc., 18 F. Supp. 3d 482 (S.D.N.Y. 2014) ........................................................................................ 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................. 12 In re Banco Bradesco S.A. Sec. Litig., 277 F. Supp. 3d 600 (S.D.N.Y. 2017) ..................................................................................... 10 Bank Brussels Lambert v. Fiddler Gonzales & Rodriguez, 305 F. 3d 120 (2002) ................................................................................................................ 15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................................. 12 In re Braskem S.A. Secs. Litig., 246 F. Supp. 3d 731 (S.D.N.Y. 2017) ........................................................................... 2, 16, 17 In re Bristol Myers Squibb Co. Sec. Litig., 586 F. Supp. 2d 148 (S.D.N.Y. 2008) ..................................................................................... 17 Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2010) ................................................................................................................. 15 Colon v. Multi-Pak Corp., 477 F. Supp. 2d 620 (S.D.N.Y. 2007) ..................................................................................... 12 Dennis v. JPMorgan Chase & Co., 343 F. Supp. 3d 122 (S.D.N.Y. 2018) ..................................................................................... 15 DoubleLine Capital LP v. Odebrecht Fin., Ltd. (“Op.”) 323 F. Supp. 3d 393 (S.D.N.Y. 2018) .............................................................................. passim In re EZCorp, Inc. Sec. Litig., 181 F. Supp. 3d 197 (S.D.N.Y. 2016) ...................................................................................... 18 Fezzani v. Bear, Stearns, & Co., 384 F. Supp. 2d 618 (S.D.N.Y. 2004) ..................................................................................... 17 Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 3 of 25 iii In re Keryx Biopharm., Inc., Sec. Litig., 2014 WL 585658 (S.D.N.Y. Feb. 14, 2014) .............................................................................. 4 Lentell v. Merrill Lynch, 396 F.3d 161 (2d Cir. 2005) ...................................................................................................... 4 In re Parmalat Secs. Litig., 376 F. Supp. 2d 449 (S.D.N.Y. 2005) ..................................................................................... 15 Riley v. Roycroft, 2017 WL 782917 (S.D.N.Y. Feb. 28, 2017) ............................................................................ 11 S.E.C. v. Straub, 921 F. Supp. 2d 244 (S.D.N.Y. 2013) ..................................................................................... 15 In re Tronox, Inc. Secs. Litig., 769 F. Supp. 2d 202 (S.D.N.Y. 2011) ............................................................................... 16, 18 In re Vale Secs. Litig., 2017 WL 1102666 (S.D.N.Y. Mar. 23, 2017) ......................................................................... 12 Veterans in Positive Action, Inc. v. Dep’t of Veterans Affairs Veterans Health Admin., 2013 WL 5597186 (S.D.N.Y. Sept. 30, 2013)........................................................................... 9 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................................................................................................. 15 Youngers v. Virtus Investment Partners Inc., 195 F. Supp. 3d 499 (S.D.N.Y. 2016) ..................................................................................... 17 Rules / Statutes Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u–4(b) ................................ 9, 10 Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 4 of 25 1 Defendants Construtora Norberto Odebrecht S.A. (“CNO”), Odebrecht Engenharia & Construção S.A. (“OEC”), and Odebrecht S.A. (“OSA”), submit this Reply Memorandum of Law in Further Support of Motion to Dismiss the Third Amended Complaint (“TAC”) pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(2), 12(b)(6), and the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u–4(b) (“PSLRA”). PRELIMINARY STATEMENT The Court’s August 8, 2018 Opinion (the “August 2018 Opinion”)1 dismissed the vast majority of the claims in the Second Amended Complaint (“SAC,” Mot. Ex. B).2 The Third Amended Complaint offers limited additional allegations, and even fewer facts, and fails both to remedy the deficiencies in the SAC and to support Plaintiffs’ claims against OEC and OSA. In fact, in light of the August 2018 Opinion, all fraud-based causes of action should be dismissed for, inter alia, failure to allege loss causation, and the N.Y. D.C.L. § 276 claim should be dismissed for lack of standing. The TAC should thus be dismissed, in its entirety, with prejudice. First, the August 2018 Opinion rejected virtually all of Plaintiffs’ loss causation allegations as insufficient under both the “corrective disclosure” and “materialization of risk” theories. Plaintiffs do not deny that the TAC leaves those allegations substantively unchanged. Plaintiffs’ assertion that they may nonetheless somehow proceed on a “materialization of risk” theory—on the grounds that Defendants’ motion does not address that theory by name—is inapposite. Regardless, Defendants’ motion addresses both theories through uncontested argument and authority that, to support loss causation, any disclosure must provide the market with new information—allegations the August 2018 Opinion found lacking. By contrast, in light of the 1 DoubleLine Capital LP v. Odebrecht Fin., Ltd., 323 F. Supp. 3d 393 (S.D.N.Y. 2018) (Woods, J.). The August 2018 Opinion is cited as “Op.,” followed by a reporter cite. 2 The Opening Brief is cited herein as “Mot. __”; the Opposition as “Opp. __”. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 5 of 25 2 Court’s guidance in the August 2018 Opinion, the two remaining disclosures—news articles dated June 19 and 20, 2015 concerning the arrest of Marcelo Odebrecht (the “June 2015 Stories,” Mot. Exs. C and D)—should be rejected because they revealed nothing to the market about CNO’s alleged misstatements. Second, the Opposition fails to salvage Plaintiffs’ assertions of falsity, which largely concern supposed GAAP violations. Indeed, neither Plaintiffs’ allegations of bribe totals by year, nor their number-and-word salad of accounting terminology, pleads (i) when CNO supposedly earned illicit revenues, (ii) when those revenues should have been recognized, or (iii) when related bribe expenses should have been recognized. Plaintiffs thus fail to plead with particularity which of CNO’s financial statements was supposedly false. Third, Plaintiffs rely upon unsupported (and contradicted) assertions that CNO has disappeared into OEC through de facto merger. Plaintiffs fail to supply facts indicating that OEC: (i) received a single asset from CNO—meaning Plaintiffs fail to allege a transaction at all; (ii) operates a single construction project; (iii) substituted for CNO in a single contract; or (iv) is anything but a holding company—which is how the TAC itself describes OEC. And, by contrast to conclusory assertions that CNO “appears” to be an “empty shell”—which is insufficient to meet even a basic pleading burden—Plaintiffs incorporate by reference into the TAC a Moody’s Report (Mot. Ex. A) that indicates CNO is an ongoing concern, and even allege the same thing. Fourth, Plaintiffs fail to plead claims against OSA. Allegations that OSA participated in the bribery scheme fail to plead that OSA had any control over, participated in, or even had input into, CNO’s allegedly false Offering Memoranda (“OMs”) or financial statements, and fail to allege OSA directed any activity at the United States. These deficiencies preclude Plaintiffs from alleging personal jurisdiction or control-person liability over OSA. See In re Braskem S.A. Sec. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 6 of 25 3 Litig., 246 F. Supp. 3d 731, 770 (S.D.N.Y. 2017) (holding no jurisdiction, and rejecting 20(a) claim in dicta, where OSA played no role in subsidiary’s SEC filings). And, because Plaintiffs abandon any assertions that OSA itself made misstatements, there are no claims left against OSA. Finally, Plaintiffs hinge their allegations of direct reliance upon murky “internal reports” concerning CNO, then fail to specify the contents or date of a single report, which reports supported which purchases, or even that Plaintiffs relied on such reports. Plaintiffs thus fail to link the review of any purported misstatements to any of Plaintiffs’ 62 alleged purchases—the very deficiency in the SAC identified by the August 2018 Opinion. The state-law claims for fraud and negligent misrepresentation (and conspiracy) thus fail for lack of direct reliance. Plaintiffs’ Section 276 claim fails for lack of standing because the alleged injury is OFL’s supposed inability to pay a judgment—which injury disappeared when Plaintiffs’ claims against OFL disappeared. The TAC should be dismissed in its entirety, with prejudice. ARGUMENT I. PLAINTIFFS FAIL TO CURE DEFICIENT LOSS CAUSATION ALLEGATIONS A. Plaintiffs’ Unchanged Loss Causation Allegations are Subject to Dismissal Pursuant to the August 2018 Opinion The vast majority of Plaintiffs’ loss causation allegations fail for the inescapable reason that this Court already held they fail. See Op. 455-60. Plaintiffs do not contest the Court’s holding, or that the loss causation allegations in the TAC are substantively unchanged from the SAC. See Mot. 10. The August 2018 Opinion as to all disclosures after the June 2015 Stories therefore applies with equal force to the allegations in the TAC. Plaintiffs assert that, because Defendants’ Motion does not use the express words “materialization of risk,” Plaintiffs’ already-rejected allegations are somehow revived. See Opp. 9-12. Plaintiffs’ assertions cannot change that the Court has already rejected these allegations. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 7 of 25 4 Furthermore, the Opening Brief does, in fact, address both theories. Indeed, the point of the entire section is that Plaintiffs failed to revise allegations this Court already rejected. See Mot. 9-10. Furthermore, the very first paragraph of the same section makes clear that a “disclosure” to the market, by whatever means, must “correct[]” the “available public information regarding the company’s financial condition.” Id. 9 (quoting Op. 456); see also Op. 456 (“Plaintiffs plead loss causation by both risk materialization and corrective disclosures. Under either theory, Plaintiffs must show that the disclosure of information ‘concealed … from the market … negatively affected the value of the security.”) (quoting Lentell v. Merrill Lynch, 396 F.3d 161, 173 (2d Cir. 2005)). The Opening Brief then argues that Plaintiffs’ allegations fail to meet this basic requirement (as this Court held). Mot. 9-10. Defendants sufficiently address Plaintiffs’ unchanged allegations. B. Claims Arising From the June 2015 Stories Should Be Dismissed In light of the Court’s guidance in the August 2018 Opinion that the June 2015 Stories “refer generally to ‘Odebrecht’ and do not refer specifically to CNO,” Op. 457, n.11, Defendants argue that the June 2015 Stories do not provide new information to the market concerning CNO’s purported misstatements. Mot. 10-11. Plaintiffs attempt to shoehorn CNO into the June 2015 Stories by asserting that they “‘changed the available public information’ regarding CNO’s false statements,” concerned bribes “to obtain large construction contracts for CNO,” and that Note prices fell in response. Opp. 14. But the articles Plaintiffs plead (Mot. Exs. C and D) report nothing about CNO, its financial statements, any involvement in the bribery, or any other facet of its existence. Plaintiffs’ argument that the decline in Note values supports their claim likewise fails, because a bare decline in price, unaccompanied by a disclosure that corrects a falsehood, does not plead loss causation. See In re Keryx Biopharm., Inc., Sec. Litig., 2014 WL 585658, at *14 (S.D.N.Y. Feb. 14, 2014) (no loss causation “as a matter of law” where article that allegedly caused Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 8 of 25 5 stock drop discussed information market learned “more than two weeks” earlier). Absent allegations that the disclosures corrected information about CNO’s alleged misstatements—the only alleged misstatements still at issue—Plaintiffs fail to plead the “causation” part of “loss causation,” and thus also proximate cause for Plaintiffs’ state-law claims. II. PLAINTIFFS FAIL TO ALLEGE ACTIONABLE MISSTATEMENTS The Opposition fails to address Statements3 #4, #9, #13, #24, and #31-41, and thus appears to abandon claims arising from those statements. Defendants acknowledge that, under the August 2018 Opinion, Statements #5, #8, #10, and #11 are alleged to be false, but Defendants maintain they are subject to dismissal because Plaintiffs fail to plead loss causation. The remaining statements at issue are inadequately pleaded. A. Plaintiffs Fail to Plead That CNO’s Financial Releases Breached Accounting Standards Statements #1, #2, #12, #15, #17, #19, #20, #22, #23, #26, #28, and #29 1. Plaintiffs Fail to Plead That Discovery of the Bribery Scheme Was More Than a Remote Possibility During the Relevant Time Period Although the SAC alleged that the bribery scheme totaled $788 million, TAC ¶ 20, n.10, the August 2018 Opinion held that the SAC failed to plead disclosure of the scheme, and potential related losses, were “more than a remote possibility,” and so failed to allege the need to disclose a contingent liability. See Op. 446; Mot. 13. The TAC now alleges that the bribery scheme totaled $3.3 billion, TAC ¶ 72, and Plaintiffs argue that the “sheer size” of the scheme “gives it more than a remote chance of being detected by authorities.” Opp. 15. But this assertion relies on an inference that detection is “more than a remote possibility” if the total scheme is large—an inference the Court already declined to draw. See Op. 446. Plaintiffs contend that “no [] standard” 3 “Statement # _” refers to statements on Appendix A to the Opening Brief. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 9 of 25 6 requires them to plead the “precise dollar amount . . . that would move the possibility of detection from remote to more than remote.” Opp. 15. But it is reasonable to demand facts as to why a $3.3 billion scheme crosses the GAAP disclosure threshold when a $788 million scheme does not. The supposed warnings by Silva to Marcelo Odebrecht, and later by Marcelo Odebrecht to Silva, Soares, and Migliaccio, also fail to plead that the likelihood of disclosure was more than remote. See Mot. 13. Silva’s characterization of the scheme as “financial suicide” addresses, at most, the consequences of detection, but says nothing about the likelihood. See id. 13. The quote attributed to Marcelo Odebrecht offers no facts about the likelihood or timing of detection, and is otherwise merely an expression of general fear among co-conspirators. See id. Plaintiffs respond with speculation that “people involved in a criminal scheme with little or no chance of detection need not flee their country.” Opp. 16. It is equally plausible, however, that where detection is remote—but the consequences of detection severe—conspirators would take steps to protect themselves. The Court need not accept either party’s interpretation, however, but can find that Plaintiffs have failed to plead facts establishing that the likelihood of disclosure was less remote than alleged in the SAC. Notably, Plaintiffs do not address the failure to plead any facts indicating Brazilian authorities turned their attention to Odebrecht prior to June 19, 2015. See Mot. 13. 2. Plaintiffs Fail to Remedy Deficient Allegations Concerning Revenue and Expense Recognition The TAC’s limited additional allegations are insufficient to remedy the SAC’s failure to “identify which, if any, revenue derived from unlawfully obtained contracts during the periods for which CNO’s financial figures were disclosed.” Op. 447. The Opening Brief walks through the handful of allegations concerning specific CNO contracts, and why none pleads GAAP violations concerning revenue or expense recognition. See Mot. 14-15. The Opposition offers no response. The Opening Brief also establishes that Plaintiffs’ chart of annual revenues that CNO earned from Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 10 of 25 7 Petrobras fails to show which revenues were connected to bribery, particularly because the TAC identifies no more than two Petrobras contracts, for which it fails to plead the execution dates, when (if at all) the projects began, when (if at all) revenues were earned, see TAC ¶ 75, and therefore when alleged bribery-related expenses should have been recognized. Mot. 14-16. Plaintiffs respond that the TAC “plainly alleges that all of the revenue from Petrobras contracts was obtained illicitly.” Opp. 17. But in support of this sweeping claim, Plaintiffs cite only TAC ¶ 107, which alleges the existence of unidentified “governmental investigations and investigative news reports” that purportedly “identified a number of contracts that CNO obtained through the Bribery and Kickback Scheme, including CNO’s construction contracts with Petrobras.” Opp. 17, n.37 (emphasis added). But Plaintiffs cannot rely on an unsupported, six- word phrase to allege R$ 10 billion in illicit revenues over five years, particularly since they (barely) identify just two actual contracts between Petrobras and CNO. See TAC ¶ 75. The failure to allege which revenues should have been recognized, and when, means Plaintiffs fail to plead which bribes associated with which revenues should have been disclosed on which financial statements. See Op. 447. Listing annual bribe totals does not tie them to specific contracts or revenues, see Mot. 18, and Plaintiffs are incorrect that the Court dismissed GAAP- related claims because Plaintiffs failed to allege the “specific [bribe] amount per year.” Opp. 18. Rather, the August 2018 Opinion found failure to allege “specific dates on which the bribes were paid or on which their corresponding contracts were granted to CNO or Odebrecht,” such that “bribe payments that resulted in contract revenue obtained before or after [2009-1Q 2012] . . . could not have been considered costs to be reported against the revenues listed in the offering Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 11 of 25 8 memoranda.” Opp. 447 (emphasis added).4 Plaintiffs fail to fix this deficiency. 3. Plaintiffs Fail to Allege Breaches of IAS 11 Relating to the Recognition of Bribery-Related Expenses The SAC argued that, under IAS 11, bribery-related expenses must be recognized when associated revenues are recognized, but the TAC argues they must be recognized when paid. See Mot. 16. Plaintiffs’ current interpretation of IAS 11, however, is based solely on unsupported opinion that (i) bribe expenses constitute “selling costs” under IAS 11, ¶ 20, and (ii) “selling costs” must be recognized when paid. See Mot. 16. Plaintiffs further note that bribes are not included among the “contract costs” listed in IAS 11 ¶¶ 16-17 (an assertion not in the TAC itself, and so not permitted in the Opposition), nor in IAS 11 ¶ 21, and that, because bribes are related to “marketing or obtaining projects” they are “selling costs.” Opp. 19. And Plaintiffs promise they ultimately will produce an expert to support their claims. Id. None of these assertions supports Plaintiffs’ view of the treatment of bribe expenses under IAS 11. Critically, IAS 11 does not define “selling costs” or provide that they are recognized when paid. See IAS 11, ¶ 20. By contrast, IAS 11, ¶ 215 (quoted at TAC ¶ 111) provides that costs “incurred in securing the contract”—which costs, Plaintiffs of course allege, include bribes, TAC ¶¶ 62-119—are, in fact, contract costs, i.e. not “selling costs.” Contrary to Plaintiffs’ assertion, Defendants therefore offer strong textual support within IAS 11 that bribes are contract costs. But, again, the Court need find only that Plaintiffs offer no support for their interpretation, and thus fail to meet their basic pleading burden. And Plaintiffs’ promise that experts will provide support for 4 Plaintiffs also assert that the “exclusion of hundreds of millions of dollars in transactions from . . . CNO’s financials” rendered them false. Opp. 18. The SAC (¶ 77) made this claim, too, and therefore the Court already rejected it. See Op. 447. 5 As Plaintiffs correctly assess, Defendants intended to argue that Plaintiffs offer no reason that IAS 11, ¶ 21 does not apply to bribes (as detailed above). Opp. 19, n.40. Plaintiffs’ unsupported response that they have stated that IAS 11, ¶ 20 applies to bribes is insufficient. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 12 of 25 9 their claims merely emphasizes that the TAC does not. See Opp. 19. Plaintiffs also argue that IAS 11, ¶ 21 is inapplicable to bribes because certain bribes— such as a $35 million payment to the president of Venezuela—“were not tied to particular projects.” See Opp. 19, Mot. 17. But, as the Opening Brief explains, and as Plaintiffs ignore, the TAC concedes that Plaintiffs do not know whether this payment was tied to securing construction contracts. See TAC ¶ 113 (the payment “does not appear to relate to any one particular project”). If it was tied to a construction contract, then IAS 11 (subtitled “Construction Contracts”) applies as discussed above; if it was not tied to a construction contract, then Plaintiffs fail to plead the accounting standard that does apply, and so fail to plead that standard was breached. See Mot. 17. B. Plaintiffs Fail to Plead Falsity for Statements in the Offering Memoranda Statement #3. As described above, Plaintiffs fail to plead the falsity of CNO’s financial statements, and thus fail to plead the falsity of Statement #3, which is a general statement about CNO’s “financial strength.” See, e.g., TAC ¶ 125. And Plaintiffs do not answer that, although Statement #3 mentions CNO’s “competitive strengths,” the TAC does not plead that Statement #3 is false for that reason, and thus fails to plead “why” it is false. See Mot. 8-9 (PSLRA standard). Statement #6. Plaintiffs claim that the OM statements concerning “political risk” are false because they omit that such risk was managed through bribery. See, e.g., TAC ¶ 131. The Opening Brief explained that Plaintiffs nowhere plead what “political risk” means nor how bribery would manage it, see Mot. 19, and the Opposition acknowledges that deficiency by asserting an unpleaded and unsourced definition of “political risk.” See Opp. 21. The Court should not consider this purported definition. See Veterans in Positive Action, Inc. v. Dep’t of Veterans Affairs Veterans Health Admin., 2013 WL 5597186, at *2 (S.D.N.Y. Sept. 30, 2013) (“[P]laintiffs may not use an opposition brief to amend their complaint.”). Regardless, Plaintiffs offer no facts suggesting what CNO actually meant by the term, nor that Plaintiffs’ self-serving, post hoc Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 13 of 25 10 definition reflects how an investor would understand it. Plaintiffs failure to plead the meaning of an alleged misstatement precludes pleading that it was false or made with scienter, or that Plaintiffs relied on it. The Opening Brief also explained, and Plaintiffs ignore, that CNO’s statements about “political risk” indicate that Odebrecht managed such risk for decades before the alleged bribery scheme, and so there is no reason bribery would be part of managing “political risk.” Mot. 19. Statement #7. The Opening Brief made clear that statements about compliance with laws that do not assert past compliance, or guarantee future compliance, are “aspirational and hortatory” under the securities laws. In re Banco Bradesco S.A. Sec. Litig., 277 F. Supp. 3d 600, 658 (S.D.N.Y. 2017) (Woods, J.); see also Mot. 20; id. 29-31 (unanswered argument that OSA’s “code of conduct” is inactionable). Plaintiffs do not claim that Statement #7 makes such representations or guarantees, but merely assert that it falsely “implies that CNO followed local laws.” Opp. 22. In support, Plaintiffs cite Banco Bradesco as holding that the defendant there “misled investors by disclosing an anti- bribery policy when it was engaging in bribery.” Opp. 22, n.43. In fact, Banco Bradesco finds that Banco Bradesco’s code of conduct is aspirational, 277 F. Supp. 3d at 658, but that the company’s statements about that code are actionable because, inter alia, they were made “to reassure the investing public about the Company’s integrity, specifically with respect to bribery, during a time of concern.” Id. at 659-60. By contrast, Statement #7 does not discuss bribery, pre- dates the bribery investigation alleged here, see TAC ¶ 81 (investigation began “[i]n or about 2014”), and is not alleged to have been a response to external events or made to reassure investors. And the “basis in law” for making Plaintiffs allege which regulations CNO supposedly breached Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 14 of 25 11 is the PSLRA’s requirement that Plaintiffs allege why a statement is false.6 See Mot. 8-9. III. PLAINTIFFS FAIL TO PLEAD SUCCESSOR LIABILITY Plaintiffs fail to allege facts indicating a transaction between OEC and CNO, or that CNO ceased operations and effectively merged into OEC. And Plaintiffs append to the TAC the Moody’s Report, which contradicts their allegations. See Mot. 22-24. Plaintiffs assert that the Court should consider only the sliver of the Moody’s Report that they plead, see TAC ¶ 45, and ignore the rest of the document. Opp. 24. Indeed, the same paragraph Plaintiffs cite (incorrectly) to argue that CNO ceased doing business also provides that OEC is a “holding company,” Mot. Ex. A at 1—i.e. not an operating company—that will consolidate the finances of its subsidiary, CNO, and the next paragraph provides that CNO itself will consolidate 30% of Odebrecht’s multi-billion-dollar construction business. See Mot. 22-23, Mot. Ex. A at 1-2. This Court need not accept conclusory allegations that CNO has ceased doing business, particularly when the TAC appends a document that contradicts them. See Riley v. Roycroft, 2017 WL 782917, at *6 (S.D.N.Y. Feb. 28, 2017) (“If the allegations of a complaint are contradicted by documents made a part thereof ... the court need not accept as true the allegations of the complaint.”). The same unpleaded portions of the Moody’s Report contradict the already- equivocal allegations that CNO “appears” to lack earnings and “appears” to have ceased doing business. See TAC ¶ 44. Even setting aside Exhibit A, the TAC is devoid of non-conclusory allegations that CNO engaged in a transaction with OEC. Allegations that, for instance, OEC “assumed the entire 6 Statements #14, #16, #18, #19, #21, #22, #25, #27, #28, #30 include reports, by CNO, of its Rating Agency ratings. The August 2018 Opinion opined, however, that such statements “appear to be nothing more than inactionable historical facts.” Op. 450; Mot. 21. The Court also held that the ultimate Rating Agency downgrades do not support loss causation. See Op. 459. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 15 of 25 12 business operation of CNO,” TAC ¶ 49, offer no facts about OEC’s or CNO’s operations, nor allege that OEC acquired a single asset from CNO. The Opposition highlights allegations that are merely variations on the theme that OEC’s business description is similar to CNO’s, see TAC ¶¶ 46-53, which are consistent with OEC’s pleaded role as a parent company, see TAC ¶ 39, and do not allege that CNO transferred its assets (or stopped acting as an operating subsidiary). Because Plaintiffs fail to plead that OEC acquired CNO’s assets, the Court need not determine whether such “acquisition” is an exception to the rule that the acquiring corporation “is not liable for the torts of its predecessor,” Colon v. Multi-Pak Corp., 477 F. Supp. 2d 620, 626 (S.D.N.Y. 2007). Even if Plaintiffs had pleaded a transaction, they fail to allege it was a de facto merger. The assertion that CNO “appears to have ceased its ordinary business activities,” Opp. 23, is a “threadbare recital[]” of this “element” of the claim. See In re Vale S.A. Sec. Litig., 2017 WL 1102666, at *19 (S.D.N.Y. Mar. 23, 2017) (Woods, J.) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 7 Indeed, the use of “appears” does not even rise to the level of conclusory. Furthermore, Plaintiffs cannot argue coherently that CNO “appears” to have ceased doing business, Opp. 25, and that OEC conclusively has “assumed the entire business operation” of CNO, see id. 26. And Plaintiffs’ assertion that “OEC substituted itself as the replacement of CNO in all respects,” Opp. 24, is another mere conclusion based on the foregoing conclusory claims. Plaintiffs allege not a single fact supporting their assertions that CNO ceased operating, ceased serving as counterparty on a single construction contract, or lacks earnings, or that OEC is anything more 7 Plaintiffs’ authority that they need only make a “bare allegation” that OEC is CNO’s successor-in-interest, Opp. 24, n.53, predates Ashcroft v. Iqbal, 556 U.S. 662 (2009), and is inconsistent with the instruction that “bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than ‘formulaic recitation of the elements’” of a claim. Id. at 681 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 16 of 25 13 than a typical parent-holding company of CNO’s subsidiary-operating company.8 Finally, rather than argue that their allegations do not contradict, Plaintiffs ask the Court to resolve the contradiction—which this Court’s unchallenged authority says the Court should not do. See Mot. at 23-24. Regardless, Plaintiffs offer no reason that resolving the contradiction means rejecting the allegations in paragraphs 36 and 37. The sole substantive change to paragraph 36, across all four complaints, is a slight revision from “CNO is the largest engineering and construction firm in Latin America,” SAC ¶ 31, to “CNO was the largest engineering and construction firm in Latin America,” TAC ¶ 36 (emphasis added).9 This revision reflects, at most, that CNO is no longer the largest construction firm in Latin America—not that it shut down. And the next sentence continues to plead that CNO “engages in the construction of large-scale infrastructure and other projects.” See id. The following paragraph, TAC ¶ 37, alleges in the present tense that CNO is a substantial operating concern. Plaintiffs argue that TAC ¶ 40 reflects what Plaintiffs intended to plead, see Opp. 27, but this assertion merely identifies a contradictory allegation, and highlights the disparity between the fact-based allegations of paragraphs 36 and 37, and the conclusory assertions of succession in paragraph 40. See TAC ¶ 40 (“CNO has essentially become an empty shell and OEC substituted itself in as the replacement to CNO in all respects.”).10 8 Plaintiffs also fail to allege that OEC assumed even the single liability—the Note guarantee—they purport to plead, much less any other liabilities. See Mot. 24. Plaintiffs concede that they do not allege CNO somehow withdrew its guarantee, see Opp. 26, but nowhere explain how OEC could assume a liability for which CNO is still on the hook. 9 See Complaint (ECF No. 1) ¶ 23; First Amended Complaint (“FAC”) (ECF No. 26) ¶ 27; SAC (ECF No. 41) ¶ 31; TAC ¶ 36. 10 That paragraphs 36 and 37 could have been more “artfully worded,” Opp. 27, and are thus unintentional, is contrary to the facts that paragraph 36 is virtually unchanged since the first complaint, and paragraph 37 is identical to its other iterations in the FAC (¶ 28) and SAC (¶ 32). Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 17 of 25 14 IV. PLAINTIFFS FAIL TO PLEAD CLAIMS AGAINST OSA A. Plaintiffs Fail to Plead Jurisdiction Over OSA Plaintiffs’ allegations, both of direct and “related” contacts, fail to support specific jurisdiction over OSA. See Mot. 25-29.11 Simply reiterating that “OSA” participated in road shows does not plead who, if anyone, affiliated with OSA actually attended, nor on behalf of which entity. See Opp. 30. Similarly, listing again the claims that Odebrecht’s head of investor relations “typically . . . respond[ed] to investor questions regarding the Notes,” and made Statement #36 directly to Plaintiffs, id., fail because the former specifies no misconduct that gives rise to Plaintiffs’ claims, and the latter fails to address Defendants’ arguments, Mot. 31-32, effectively abandoning Statement #36. And allegations that, at some late stage, individuals from the Division of Structured Operations (“DSO”) worked in Miami are unrelated to the alleged misstatements— which form the alleged misconduct underlying Plaintiffs’ claims. See Opp. 30-31.12 Plaintiffs also try to argue that alleged DSO activities in the United States constitute “minimum contacts” because they are “relevant contacts.” See id. The Opposition claims that OSA “employees . . . direct[ed] the transfer of funds through various bank accounts in New York,” Opp. 30, but the TAC pleads the account belonged to CNO, and fails to allege who made deposits or withdrawals. See Mot. 27, TAC ¶ 79. Assertions about DSO operations in Miami fare no better for the same reason—they are neither connected to the alleged misstatements, nor indicate that such misstatements were directed toward the United States. Plaintiffs also fail to plead whether the alleged DSO employees moved to Miami before November 2014—the latest date of the alleged 11 Defendants do not here challenge the sufficiency of service of process upon OSA. 12 To clarify statements in the Opening Brief, see Mot. 25-26, Plaintiffs must allege separate jurisdictional contacts with New York for their N.Y. D.C.L. § 276 claim, which does not share a nucleus of operative facts with Plaintiffs’ other claims. See Op. 469. Their failure to make any such allegations means this claim should be dismissed as to OSA. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 18 of 25 15 misstatements still at issue (Statements #29, #30). See Mot. 13 (noting that the article quoting Marcelo Odebrecht as encouraging Silva, Soares, and Migliaccio to leave Brazil places the quotation in “mid-2014”). Consequently, even if the Miami operations were “relevant contacts,” they cannot support specific jurisdiction over OSA arising from the alleged misconduct because Plaintiffs do not allege that such “relevant contacts” occurred before the last alleged misstatement still at issue. See, e.g., TAC ¶ 90 (Migliaccio’s secretary went to Miami on June 15, 2015).13 Plaintiffs’ “effects” theory—first raised in the Opposition—fails to plead that OSA “expressly aimed to cause [] an effect in” the United States. 7 West 57th Street Realty Co. v. Citigroup, Inc., 2015 WL 1514539, at *11 (S.D.N.Y. Mar. 31, 2015). Rather, Plaintiffs argue that a Brazilian holding company, OSA, somehow caused its Brazilian subsidiary, CNO, to issue faulty financial statements, Opp. 31; that those financial statements were reported in the OMs, id., which were issued by CNO in connection with notes issued by OFL—a Caymans entity, TAC ¶ 54—and listed on the Luxembourg Stock Exchange, see, e.g., Mot. Ex. F at ii-iii. None of this remotely justifies Plaintiffs’ leap that, several attenuated steps up the chain, OSA aimed its activity at the United States. See Opp. 31. At the very most, Plaintiffs appear to suggest their purchases might have been foreseeable, which does not plead personal jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980) (foreseeability “has never been a sufficient benchmark for personal jurisdiction”). Plaintiffs’ authority, by contrast, concerns false statements 13 Plaintiffs’ authority here is no help. In Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2010), both the jurisdictional contact and related contacts revolved around shipping counterfeit handbags to New York and marketing them directly to New Yorkers. See id. at 166- 67. In Bank Brussels Lambert v. Fiddler Gonzales & Rodriguez, 305 F. 3d 120 (2d Cir. 2002), a Puerto Rican law firm’s maintenance of a New York apartment, and representation of New York clients, were “related” to a claim arising from representation of a New York client. See id. 128- 29. By contrast, Plaintiffs allege harm from misleading statements, but allege no “related” contacts arising from facilitation of that misconduct, which is the subject of Plaintiffs’ suit. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 19 of 25 16 made in connection with securities traded on U.S. exchanges, or offerings made in the United States. Opp. 31, n.74 (citing S.E.C. v. Straub, 921 F. Supp. 2d 244, 255 (S.D.N.Y. 2013); In re Parmalat Sec. Litig., 376 F. Supp. 2d 449, 454 (S.D.N.Y. 2005)).14 B. Plaintiffs Fail to Allege Control-Person Liability Plaintiffs abandon any claim that OSA made misstatements by failing to address Defendants’ arguments concerning Statements #31-#36. Instead, Plaintiffs fall back on attempting to plead that OSA is liable as a control person because it (i) controlled CNO and (ii) participated in the bribery scheme. Neither of these is adequately pleaded. Plaintiffs concede that, to plead Section 20(a) liability, they must allege the ability to control both the entity and the transaction at issue. See Opp. 34. See also Ark. Teacher Ret. Sys. v. Bankrate, Inc., 18 F. Supp. 3d 482, 486 (S.D.N.Y. 2014) (dismissing 20(a) claim where plaintiff “alleged no particularized facts suggesting that [Defendants] had control over the alleged misrepresentations”); In re Tronox, Inc. Sec. Litig., 769 F. Supp. 2d 202, 207 (S.D.N.Y. 2011) (cited by Plaintiffs) (“[T]he Section 20(a) defendant must … have actual control over the transaction in question.”). The transactions here at issue, from which Plaintiffs’ claims arise, are the alleged misrepresentations. See TAC ¶¶ 302-30. Although Plaintiffs cite the OM statements that CNO is “controlled by the Odebrecht family,” see id. ¶ 33, Plaintiffs make only conclusory assertions that OSA had the ability to control, or any role in preparing, the OMs or CNO’s financial statements. See Mot. 33. And each OM attributes its contents to CNO. See, e.g., Mot. Ex. F at ii. 14 Alternatively, Plaintiffs request “jurisdictional discovery” to “allow the Court to more fully understand the scope of OSA’s ‘minimum contacts’ with the United States.” Opp. 32-33. But Plaintiffs “propose no actual plan,” and “it would be inappropriate to permit limitless discovery at this stage of the proceedings.” Dennis v. JPMorgan Chase & Co., 343 F. Supp. 3d 122, 212 (S.D.N.Y. 2018). Plaintiffs’ lack of specifics indicates they seek only a fishing expedition. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 20 of 25 17 Plaintiffs also improperly equate participation in the bribery scheme with culpable participation in the misstatements. As noted in the Opening Brief, this Court recently rejected an analogous attempt to plead personal jurisdiction over OSA, based on supposed contacts with the United States through the SEC filings of a different OSA subsidiary. See Mot. 28 (citing In re Braskem, 246 F. Supp. 3d at 770).15 Like Plaintiffs here, the Braskem plaintiffs failed to plead that “Odebrecht played any role in making, proposing, editing or approving [its subsidiary’s] public filings in the United States.” Id. The Court also acknowledged plaintiffs’ allegations that OSA participated in the underlying bribery scheme alleged here, see id. at 742-43, but nonetheless found (in dicta) that the Court “would have granted the motion to dismiss [under] § 20(a), on the grounds that the SAC fails to allege Odebrecht’s culpable participation in the relevant Braskem public filings.” Id. at 770, n.17. Thus, in the very similar Braskem case, mere participation in the bribery scheme was insufficient to allege culpable participation in a subsidiary’s alleged misstatements (or personal jurisdiction). Plaintiffs’ attempts to distinguish Fezzani and Youngers fail. In Youngers v. Virtus Investment Partners Inc., 195 F. Supp. 3d 499 (S.D.N.Y. 2016), the Court rejected control-person claims against certain defendants who purportedly caused a primary defendant to market an investment strategy with a falsified record of returns, even though the primary defendant then made the same misrepresentation to investors. See id. 508-09. The Court found, as Plaintiffs emphasize, that, indeed, the control-person defendants’ underlying misconduct concerning provision of the strategy was unrelated to the primary defendant’s misstatements. See id. at 525, Opp. 36. And in Fezzani v. Bear, Stearns & Co., 384 F. Supp. 2d 618 (S.D.N.Y. 2004), the Court 15 Braskem’s holding post-dates the Plea Agreement, see TAC ¶ 272, and belies Plaintiffs’ notion that the Plea Agreement precludes OSA from resisting personal jurisdiction. See Opp. 30. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 21 of 25 18 rejected control-person claims against Bear Stearns despite allegations that Bear Stearns participated in the underlying fraud of the primary defendant, a broker-dealer. See id. at 646. Similarly, Plaintiffs claim that OSA participated in the bribery scheme, but fail to allege that OSA had the ability to direct CNO’s specific misconduct, and fail to distinguish Fezzani simply by citing its wholesale rejection of 20(a) liability. See Opp. 36-37.16 Plaintiffs also assert that OSA participated in CNO’s financial statements because the DSO “did not enter” its bribe-related transactions “into CNO’s accounting records,” Opp. 3, and “distributed funds that were never reported in CNO’s reported financial results.” Id. These assertions again plead, at most, that OSA and the DSO participated in the bribery scheme, but not that OSA had control over, or even involvement in, preparing the OMs or CNO’s financial statements, and so again plead no control over, or participation in, the alleged misstatements. (Such allegations also self-evidently plead no connection to any alleged misstatements not contained in CNO’s financial statements).17 Plaintiffs’ scienter allegations as to OSA likewise fail. Plaintiffs argue that OSA acted with scienter with respect to the bribery scheme, and not as to CNO’s alleged misstatements. See Opp. 37-38. Plaintiffs identify Silva, Soares, and Migliaccio, but nowhere plead why their positions within the DSO support imputing their intent to all of OSA. See id. 38. And Plaintiffs 16 Plaintiffs’ authority is distinguishable. See In re Bristol Myers Squibb Co. Sec. Litig., 586 F. Supp. 2d 148 (S.D.N.Y. 2008) (alleged control persons also liable as primary violators); In re Tronox, 769 F. Supp. 2d at 213-14 (defendant KMG “controlled Tronox’s management and reporting of [certain] obligations” and defendant Andarko was “deeply involved in Tronox’s day- to-day operations as they pertained to the transaction at issue—Tronox’s reporting of reserves”) (emphasis added); In re EZCorp, Inc. Sec. Litig., 181 F. Supp. 3d 197, 214 (S.D.N.Y. 2016) (alleging “participation in management” and “access to information suggesting recklessness”). 17 Plaintiffs’ reference to allegations concerning “OSA’s” supposed participation in “road shows” and statements by Odebrecht’s head of Investor Relations fail to plead culpable participation for the same reasons they fail to allege jurisdiction. See supra Section IV.A. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 22 of 25 19 otherwise assert that Marcelo Odebrecht’s knowledge concerning CNO’s financial results can be assumed, Opp. 37-38, which is plainly insufficient to plead scienter concerning CNO.18 V. PLAINTIFFS FAIL TO PLEAD CAUSES OF ACTION UNDER STATE LAW A. Plaintiffs Fail to Cure the Deficiencies in Their Reliance Allegations The Opening Brief explained that Plaintiffs’ allegations of “internal reports” concerning CNO nowhere allege that Plaintiffs relied on those reports in making purchases. See Mot. 36. Plaintiffs offer no response. Regardless, despite claims that such reports are Plaintiffs’ internal documents, see TAC ¶¶ 294-96, they fail to plead particularized information about their contents, dates, or what reports (if any) were consulted in connection with any alleged purchases. See Mot. 35 (the SAC did not “provide Defendants with notice of which misstatements were relied upon by Plaintiffs in their decision to purchase the Notes”) (quoting Op. 463). And Plaintiffs’ claim that certain information was “importan[t]” does not come close to pleading the contents of the “internal reports” with any particularity. See Opp. 38. Similarly, the TAC’s chronological list of CNO’s financial statements, accompanied by assertions that Plaintiffs “reviewed and relied” upon every statement that preceded a given purchase, tell a different reliance story from the “internal reports,” and are also insufficient to identify which of Plaintiffs’ 62 alleged purchases over almost two years were made in reliance on which alleged misstatements. See Mot. 36-38 (citing Op. 462-63). Plaintiffs’ assertions that they plead the “specific financial reports that were relied upon,” provide “the specific portions of CNO’s financial results that Plaintiffs relied upon,” and that, accordingly, they identify “how the financial results were relied upon”—are therefore inconsistent with Plaintiffs’ actual allegations. 18 Plaintiffs assert that, should the Court dismiss the 20(a) claim against OSA, they should have yet another chance to amend. Opp. 38, n.98. Plaintiffs’ single-sentence footnote offers no reason Plaintiffs would be able to state a claim with a fifth opportunity to amend the complaint. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 23 of 25 20 See Opp. 39. Citing TAC ¶ 295, Plaintiffs try to provide a modicum of particularity by claiming they reviewed “the most recent reports” before “any purchase of Notes”—but TAC ¶ 295 nowhere makes this allegation, and so Plaintiffs only highlight its absence. Plaintiffs’ reliance allegations wholly fail. B. Plaintiffs Fail to Plead a Conspiracy In addition to pleading no underlying tort, see Mot. 38-39, Plaintiffs fail to allege the “agreement” that they concede is necessary to plead a conspiracy. See Opp. 40. Rather, Plaintiffs assert that the “totality” of all the “allegations in the TAC” warrants a “reasonable inference” of a “tacit understanding” among Defendants about a “plan” to “mislead investors.” Opp. 40. Plaintiffs apparently rely on Defendants (and the Court) to piece together this jigsaw puzzle of allegations to reveal this element of their claim. Regardless, Plaintiffs nowhere allege that anyone “planned,” tacitly or otherwise, to mislead investors, nor that OSA—the only potential conspirator besides CNO—had a role in issuing the Notes or preparing the OMs or CNO’s financial statements. C. Plaintiffs Lack Standing to Assert Claims Under New York Debtor and Creditor Law Sections 276 or 276-a Plaintiffs offer general propositions about standing under Section 276, but do not respond to the fact that their identified injury is OFL’s supposed inability to satisfy a judgment. See Mot. 39-40. Plaintiffs likewise fail to answer that this injury disappeared when they stopped seeking recovery against OFL. See id. Plaintiffs cannot claim standing under Section 276 based upon a non-existent injury for which the Court can, in any case, provide no redress. CONCLUSION For the reasons stated above, CNO, OEC, and OSA respectfully request an Order dismissing the TAC in its entirety, with prejudice, and any further relief the Court deems just and proper. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 24 of 25 21 DATED: New York, New York February 12, 2019 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Michael B. Carlinsky Michael B. Carlinsky Jacob J. Waldman 51 Madison Avenue, 22nd Floor New York, New York 10010-1601 Telephone: (212) 849-7000 michaelcarlinsky@quinnemanuel.com jacobwaldman@quinnemanuel.com --and-- Michael E. Liftik (pro hac vice) Eric C. Lyttle (pro hac vice) 1300 I Street, Suite 900 Washington, D.C. 20005 Telephone: (202) 538-8000 michaelliftik@quinnemanuel.com ericlyttle@quinnemanuel.com Attorneys for Construtora Norberto Odebrecht S.A., Odebrecht Engenharia & Construção S.A., and Odebrecht S.A. Case 1:17-cv-04576-GHW Document 80 Filed 02/13/19 Page 25 of 25