SUMMARY ORDER
Plаintiff-appellant IKB Deutsche Indus-triebank AG (“IKB”), a German commercial bank, sued defendants-appellees McGraw Hill Financial, Inc. and its wholly owned subsidiary, Standard & Poor’s Financial Services (together, “S & P”) for fraud, negligent misrepresеntation, and civil conspiracy to commit fraud in relation to credit ratings issued by S & P with respect to a structured investment vehicle called “Rhinebridge.” IKB appeals from a final judgment entеred on March 31, 2015 granting S & P’s motion to dismiss the complaint as time-barred under New York’s borrowing statute and German law. We assume the parties’ familiarity with the facts, procedural history, and issues on аppeal.
According to the complaint, Rhinebridge was designed to earn a profit by issuing debt securities and investing the proceeds in income-producing assets, including mortgage-baсked securities. Rhinebridge was managed by an IKB subsidiary, which hired S & P not merely to rate the instrument’s creditworthiness, but also to help create and operate it. S & P received triple its customary fees for performing those additional services, with a portion of its compensation contingent on Rhine-bridge receiving high credit ratings. That arrangement placed S & P in the unusual position of rating an instrument of its own design, with resulting economic incentives to issue favorable ratings.
Rhinebridge launched in June 2007, at which point S & P issued high ratings for the instrument’s overall structure and several of its debt securities. IKB immediately invested $149 million in dеbt securities. Over the next two months, S & P
In 2009, King County sued both IKB and S & P in federal court, alleging— among other things—that S & P had fraudulently inflated its Rhinebridge ratings. See JA 119. To support that claim, King County’s complaint cited a range of publicly available documents, including: 1) an instant message cоnversation between two S & P analysts concerning the company’s rating of a financial instrument similar to Rhinebridge, which stated that the “model definitely] does not capture half of the ris[k],” and that an instrument “could be structured by cows and we would rate it”; 2) a 2006 email sent by an S & P analyst stating that ratings agencies were creating “an even bigger monster—the CDO market,” and adding, “[l]et’s hope we аre all wealthy and retired by the time this house of cards falters”;
IKB entered into a statute of limitations tolling agreement with S & P on May 10, 2013, and filed this action оn May 12, 2014. The district court dismissed the suit as untimely under Germany’s statute of limitations, which applies here under New York’s borrowing statute. This Court reviews de novo both a district court’s decision to dismiss a complaint as untimely and a district court’s determination of foreign law. Golden Pac. Bancorp v. F.D.I.C,
New York’s borrowing statute requires a non-resident plaintiff to file a claim within the shorter of either: 1) the New York statute of limitations; or 2) .the statutе of limitations in the jurisdiction in which the claim accrued. N.Y. C.P.L.R. § 202; Glob. Fin. Corp. v. Triarc Corp.,
Under New.York law, IKB’s claim accrued in Germany. See Glob. Fin. Corp.,
The parties’ experts agree that, under German law, a plaintiff has knowledge of the circumstances giving rise to the claim when she obtains knowledge of the facts necessary to commence an action in Germany with an “expectation of. success” or “some prospect of success,” though not without risk and еven if the prospects of success are uncertain. JA 383, 1019-20. To satisfy this standard, a plaintiff need not know all the relevant details or have conclusive proof available; knowledge of the factual circumstances underlying the claim is sufficient. See, e.g., Bundesgeri-chtshof [BGH] [Federal Court of Justice] Feb. 26, 2013, Neue Juristische Wochen-schrift [NJW] 1801,2013.
For example, according to IKB’s expert, the German Supreme Court (“BGH”) has held that a plaintiff investor did not have sufficient knowledge to trigger the statute of limitations against a defendant broker when the plaintiff was aware only of investment losses that—from the plaintiffs point of view—could be attributed to market conditions alone. JA 1022. In that case, the BGH held that a plaintiff must also know facts that would allow him to concludе that the defendant was culpable in a way that caused plaintiffs losses. Bundesgerichtshof [BGH] [Federal Court of Justice] July 13, 2010, [BKR] 421, 2010 (“[T]he subjective preconditions of § 199[BGB] Para 1 No.2 at most could exist if thе Plaintiff, in addition to ... [knowing the] circumstances allowing him to conclude that the transactions brokered by [the defendant broker’s employer] were hopeless for him, also was awarе ... of circumstances from which it could be concluded that the [broker] was participating conditionally and willfully in [impermissible conduct].”). This is consistent with how other American courts have аrticulated the standard for triggering the German statute of limitations. See In re Countrywide Fin. Corp. Mortgage-Backed Sec. Litig., No. 2:11-ML-02265-MRP,
Upon review of the rеcord, we agree with the district court that the facts avah
Because IKB had “knowledge of the circumstances giving rise to the claim and of the identity of the [defendant],” § 199 BGB, by December 31, 2009, the three-year German limitations period expired on December 31, 2012, prior to the parties’ tolling agreement. Therefore, IKB’s complaint was untimely.
We have considered all of IKB’s remaining arguments and find them to be without merit. Accоrdingly, we AFFIRM the judgment of the district court.
Notes
. Special purpose vehicles like Rhinebridge are essentially CDOs (collateralized debt obligations).
. On appeal, IKB argues that the district court erred in holding that a plaintiff is charged with knowledge under German law as soon as the plaintiff is able to form a consistent and coherent statement of the claim. It is clear, however, thаt the district