OPINION
Defendants Belnovo, S.A. (“Belnovo”) and Grupo Mundial Tenedora, S.A. (“GM”) (collectively, the “Defendants”) have moved pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) to dismiss the Second Amended Complaint (“SAC”)
Prior Proceedings
This action was commenced by the Plaintiffs on May 19, 2010. The Amended Complaint (“AC”) was filed on June 2, 2010, and the SAC was filed on April 5, 2011.
On September 7, 2010, Defendants GPIM Holdings, Inc. (“GPIM Holdings”) and Global Plus+ Investment Management LLC (“GPIM”) moved to dismiss the AC, a motion which was denied in part and granted in party by the opinion of March 17, 2011 (the “March 17 Opinion”). Plaintiffs filed a motion to file a Second Amended Complaint on October 1, 2010, which was granted in the March 17 Opinion.
The allegations of the SAC as described in the March 17 Opinion are repeated in part as relevant to the issue presented by the instant motion.
According to the Second Amended Complaint, Plaintiffs were employees of Pali Capital (“Pali”), who decided together with Pali to form GPIM in order to manage Pali’s investment funds. (SAC ¶ 13.) The parties entered into a Limited Liability Company Agreement (the “LLC Agreement”) in January of 2008 for that purpose. (Id. ¶ 16.) By the LLC Agreement, Belnovo, Pali Holdings Asset Management LLC (a wholly-owned subsidiary of Pali Capital, also denoted “Pali”), and the Plaintiffs became members in GPIM. The voting interests in GPIM were split two ways: 72.5% for Pali and 27.5% for Belnovo. (Id.; LLC Agreement § 4.1., Schedule A) The econоmic interests were divided four ways: Belnovo maintained the same 27.5% interest that it had for voting; but Pali’s 72.5% interest was split among Pali (21.75%), Marino (25.375%), and Serpa (25.375%). (SAC ¶ 16; LLC Agreement § 4.1, Schedule A.)
GPIM was to be managed by a seven-member “Board of Managers,” consisting of four managers appointed by Pali, two by Belnovo, and one by the “Senior Managing Director,” who was Marino. (LLC Agreement §§ 3.2(a), 3.6(b).) Serpa was named
The LLC Agreement specified that the Managing Directors (namely, Plaintiffs) “shall owe to the Members duties of loyalty and due care of the type owed by the officers of a corporation to such corporation and its stockholders under the laws of the State of Delaware.” (Id. §§ 3.5, 3.6(c).) In contrast, with respect to Members, the LLC Agreement stated:
No Member, including any Manager or Managing Director in its capacity as such, shall have any liability under this Agreement or under the [Delaware Limited Liability Company] Act except as provided herein or as required by the Act ....; provided, however, that the liability of a Member shall not be eliminated or limited if a judgment or other final adjudication adverse to such Member establishes (i) that its acts were committed in bad faith or were the result of active or deliberate dishonesty or (ii) that such Member personally gained in fact a financial profit or other advantage to which such Member was not entitled.
(Id. § 4.3.)
The LLC Agreement contained specific provisions regarding the transfer of membership interests. In particular, it stated that each of Pali and Belnovo could transfer its own respective interest at any time to an “Affiliate.” (Id. § 7.1.) If either Pali or Belnovo wished to transfer its interest other than to its own affiliate, it had to first give the other a right of first offer (“ROFO”). (Id. § 7.2.) Under Section 7.3(a), if Belnovo failed to exercise its ROFO after receiving notice that Pali desired to sell its interest, Pali was given the authority to approve a sale of 100% of the membership interests and force the other Members (namely, Belnovo and Plaintiffs) to sell their interests on the same terms (a “Required Sale”). (Id. § 7.3(a).)
The LLC Agreement contained certain conditions regarding a “Required Sale” and specified that “each Member hereby waives all dissenters’ rights, appraisаl rights, approval rights or other similar rights in connection with a Required Sale to the maximum extent permitted by law.” (Id. § 7.3(a).)
The SAC alleges that, during 2008, GM had invested $20 million in Pali, but then “threatened to sue” Pali because Pali had failed to disclose material information before the investment was made. (SAC ¶¶ 24-26.) “Upon information and belief,” GM “desired to acquire total control of GPIM” and Pali “agreed to cede its membership interests in GPIM” to appease GM. (Id. ¶ 28.) Thus, “upon information and belief,” Pali and Belnovo agreed to transfer GPIM to a GM-owned subsidiary at less than fair value in an act of “self-dealing.” (Id. ¶ 29.)
According to the SAC, in order to avoid any methods of fair valuation, Pali and Belnovo “designed a scheme whereby Plaintiffs would be induced to make a below market offer at terms established by Defendants, which Defendants could then use as the ‘valuation’ of the company for their own self-dealing acquisition.” (Id. ¶ 31.) In particular, at a meeting of the GPIM Board on January 7, 2009, the “GM representatives” (Rodrigo Diaz, Executive Vice President of GM, and Juan Carlos Barrera) allegedly informed Plaintiffs that GM had decided not to invest any more money in GPIM and suggested that Plaintiffs acquire Pali’s interest themselves. (Id. ¶ 32.) At a subsequent meeting on January 16, 2009, the “Board” (Diaz, Bar
By a letter dated January 26, 2009, an attorney representing Plaintiffs forwarded to GPIM’s Board Plaintiffs’ offer to purchase GPIM. The letter and attached proposal stated that it was intended to address the requirements outlined during the January 16, 2009 Board meeting by Joseph A. Schenk, whom the SAC identifies as a Pali Board representative (Id. ¶ 32). The proposal states that Plaintiffs would purchase for $1 — and the assumption of GPIM’s operating liabilities accruing on and after the closing — all the assets of GPIM plus certain additional assets of Pali and Mundial Asset Management.
The SAC alleges that after Plaintiffs refused to resign, they were fired. (Id. ¶¶ 35-36.) The GPIM Board rejected Plaintiffs offer. (Id. ¶ 36.)
Pali and Belnovo then sold their interests to GPIM Holdings, a wholly-owned subsidiary of GM, for $1,000 plus assumption of all liabilities. (Id. ¶ 37.) By letters dated February 11, 2009, Pali issued notices to all three of Belnovo, Marino, and Serpa, informing them that Pali, following the offer by GPIM Holdings to purchase GPIM and Belnovo’s failure to exercise its ROFO, was exercising its right to force Belnovo and Plaintiffs to sell their membership interests to GPIM Holdings in a “Required Sale” pursuant to Section 7.3 of the LLC Agreement. Plaintiffs assert that Defendants made no “effort to secure a fair price for GPIM” nor to “appraisе the fair market value of the business.” (Id. ¶ 38.)
The SAC asserts the following three claims for relief against Belnovo and GM. First, Plaintiffs allege that Belnovo breached a fiduciary duty not to sell GPIM at less than fair market value. (Id. ¶¶ 50-53.) Second, Plaintiffs allege that Belnovo and GM conspired “to transfer GPIM to GPIM Holdings at an unfair price.” (Id. ¶¶ 54-57.) Third, Plaintiffs allege that GM aided and abetted Belnovo’s breach of fiduciary duty by establishing GPIM Holdings to purchase GPIM and by “exercising its financial power” over Pali to “execute a scheme to sell GPIM ... at an unfairly low price.” (Id. ¶¶ 58-63.)
The SAC concludes that the Plaintiffs were thus each harmed “by not less than $2,000,000.” (Id. ¶¶ 53, 57, 63.)
The instant motion was marked fully submitted on April 27, 2011.
The Appropriate Standards
Federal Rule of Civil Procedure 9(b) requires that, “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). The concerns аnimating Rule 9(b) are (1) to provide a defendant with fair notice of the claims against it; (2) to protect a defendant from harm to its reputation or goodwill by unfounded allegations of fraud; and (3) to reduce the number of strike suits.
To avoid speculative and conclusory claims and thereby comply with Rule 9(b), the Second Circuit has held that Rule 9(b) requires that a party “(1) specify the statements that the Plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Rombach v. Chang,
This rule applies to all claims that sound in fraud, as determined by the wording and imputations of the complaint, regardless of the label used in the pleading. See Rombach,
The SAC alleges that GM and Pali “engineered] a plan to transfer GPIM to GM’s subsidiary GPIM Holdings at an unfair price” (SAC ¶ 29); “Defendants agreed to avoid all methods of valuation that would have resulted in a fair value for the transaction” and then “designed a scheme whereby Plaintiffs would be induced to make a below market offer, which Defendants could then use as the ‘valuation’ of the company for their own self-dealing acquisition” (id. ¶ 31); the Plaintiffs were induced to make a low offer by “utter falsehoods” stated by Pali and/or GM (id. ¶¶ 33-34); Belnovo “acted in bad faith, with deliberate dishonesty and with willful misconduct” (id. ¶ 52); and GM aided and abetted the actions of Belnovo by “knowingly participating] in the scheme to defraud plaintiffs by acquiring GPIM’s assets [at] less than fair value” (id. ¶ 62).
These allegations sound in fraud and the pleading requirements of Rule 9(b) are applicable. See DeBlasio v. Merrill Lynch & Co., Inc., No. 07 Civ. 318,
The Rule 12(b) standard set forth in the March 17 Opinion, slip op. at 7-8, is applicable here.
The Amended Complaint Fails To State a Claim For Breach Of Fiduciary Duty Against Belnovo
As this case arises under the diversity jurisdiction of a federal court sitting in New York, New York’s conflict of law rules apply to Plaintiffs’ claims. See Klaxon Co. v. Stentor Elec. Mfg. Co.,
Under Delaware law, the elements of a claim for breach of fiduciary duty include (i) the existence of a fiduciary duty and (ii) a breach of that duty. See York Linings v. Roach, No. 16622-NC,
The Delaware Limited Liability Company Act allows an LLC agreement to alter common law fiduciary duty rules by restricting, expanding, or ehminating LLC members’ or managers’ fiduciary duties. See DeLCode Ann. tit. 6, § 18-1101(c) (2009). The relevant provision states: “To the extent that, at law or in equity, a member or manager or other person has duties (including fiduciary duties) to a limited liability company or to another member or manager or to another person that is a party to or is otherwise bound by a limited liability company agreement, the member’s or manager’s or other person’s duties may be expanded or restricted or eliminated by provisions in the limited liability company agreement; provided, that the limited liability company agreement may not eliminate the implied contractual covenant of good faith and fair dealing.” Id.
The policy of the Delaware Act is “to give maximum effect to the principle of freedom of contract and to the enforceаbility of limited liability company agreements.” Id. § 18 — 1101(b); Elf Atochem N. Am., Inc. v. Jaffari,
Here, the LLC Agreement contained a provision allowing either Pali or Belnovo to
In addition, minority members of an LLC do not owe fiduciary duties to other members. See In re S. Canaan,
Belnovo owned 27.3% of GPIM, possessed 27.5% voting interests, and was not a manager or a controlling member. (See SAC ¶ 16.)
The Plaintiffs concede that, even in the absence of contractual provisions eliminating fiduciary duties, controlling members of an LLC owe fiduciary duties to other members and that Belnovo owned only 27.5% of thе LLC. (See Pls. Mem. 11-12.) Plaintiffs claim that Belnovo can nonetheless be viewed as “controlling,” because it allegedly acted in concert with Pali. Plaintiffs allege that “Pali Holdings AM and Belnovo, acting in concert, were the controlling members of GPIM, accounting for 100% of the voting interest in GPIM. As such they owed plaintiffs, the other members of GPIM, fiduciary duties____” (SAC ¶ 29.) However, Plaintiffs’ sole support for that assertion, Kelly v. Blum,
In Kelly, one member who owned 24% of the LLC was found to jointly be “controlling” with a member that owned over 50%, when both voted in favor of a merger to which a minority member objected. However, the two members at issue— namely, MBC Investment and MBC Lender — were, as their names imply, affiliated entities. Both were wholly-owned subsidiaries of ELB Capital Management, LLC. See Kelly,
Here, there is no allegation that Pali and Belnovo were related entities. The reasoning of Kelly is therefore inapplicable. Under Plaintiffs’ argument, any time multiple members who combine to over 50% of the voting interests agree to a transaction, the aggrieved member could argue that
Moreover, even if Belnovo owed a duty, Plaintiffs’ allegations do not establish that Belnovo breached that duty. Pah, not Belnovo, triggered the “Required Sale” under Section 7.3 of the LLC Agreement that forced Belnovo to sell its GPIM interests for the same share of $1,000 that Plaintiffs received. Although the SAC alleges “upon information and belief’ that Pali triggered the “Required Sale” to appease GM in unrelated business dealings (SAC ¶ 28), that does not change the allegation that it was Pali, not Belnovo, that triggered the Required Sale. Belnovo’s involvement was that: (i) it was a minority member of the LLC owned by GM, a non-member which created another subsidiary to buy out Pali; and (ii) it was subjected by Pali to the same Required Sale as Plaintiffs. All that Belnovo did in connection with the sale was to decline to exercise a ROFO. Had Belnovo exercised the ROFO, the result to Plaintiffs would have been no better: a Required Sale to Belnovo instead of a Required Sale to GPIM Holdings. (LLC Agreement § 7.3.)
The SAC maintains that an alleged subsidiary of GM, GPIM Holdings, was the purchaser, it alleges a claim for breach of fiduciary duty against Belnovo. (SAC ¶¶ 50-53.) However, with respect to Belnovo, Plaintiffs have alleged no affirmative action at all. The Plaintiffs’ opposition brief asserts that Belnovo is a “shell” of GM, whose separate corporate existence should be disregarded. (Pis. Mem. 7-9.) The SAC does not assert a claim for veil piercing nor do Plaintiffs anywhere address whether a corporate veil can be pierced under Panamanian law and, if so, under what circumstances. Both Belnovo and GM are Panamanian corporations (SAC ¶¶ 3-4), and whether the corporate veil cаn be pierced is analyzed under the law of the place of incorporation. See, e.g., Sykes v. Mel Harris & Assocs., LLC,
Even if the corporate veil between the two entities should be pierced under Panamanian law, it would still not demonstrate that Belnovo breached any fiduciary duty to Plaintiffs in the first instance; instead, it would show only that GM could be found liable to the extent Belnovo was liable. However, here, the allegation that Belnovo is liable for breach of fiduciary duty is insufficient as Belnovo was neither a managеr nor a controlling member of the LLC. The Amended Complaint Fails To State A Claim For Civil Conspiracy Against Defendants
Parties to this suit reside in a variety of locations, including Panama, Delaware, New York, and Connecticut. However, only Delaware and New York have a substantial connection to all parties and occurrences at issue. Delaware is the place of incorporation of GPIM and GPIM Holdings, and the LLC Agreement contains a Delaware choice of law provision. New York is the forum state, the place of residence of the two Plaintiffs, the location of the majority of the occurrences alleged in the AC, (SAC ¶¶ 9-10), and the principal
In the event of an actual conflict between New York and Delaware law, since it appears that New York was thе place in which the allegedly tortious events took place, New York law would normally apply to tort claims, such as one for conspiracy, arising from those events. See Steinberg,
Under the law of either Delaware or New York, conspiracy is not an independent tort, but a theory under which a party can establish thе vicarious liability of co-conspirators for each other’s offenses. See Green v. Beer, No. 6 Civ. 4156,
Once the underlying tort is established and deemed sufficiently supported by factual allegations, а plaintiff must establish: “(1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” Meisel v. Grunberg,
Claims of civil conspiracy which do not allege, or which insufficiently allege, an underlying tort must be dismissed for failure to state a claim under Rule 12(b)(6). See Meisel,
The SAC does not specify the tort underlying Plaintiffs’ civil conspiracy claim, but alleges a “conspiracy whereby [defendants] agreed to transfer GPIM to GPIM Holdings at an unfair price.” (SAC ¶ 55.) If it assumed that Belnovo’s alleged breach of fiduciary duty is meant to be the underlying tort, for the reasons stated above, the breach of fiduciary duty claim is dismissed. Because these claims must stand or fall together, the civil conspiracy claim is likewise dismissed. See Filler v. Hanvit Bank,
In addition, “ ‘[i]n order to sustain an allegation of civil conspiracy that involves a conspiracy to breach a fiduciary duty, all members of the alleged conspiracy must independently owe a fiduciary duty to the plaintiff.’ ” Briarpatch Ltd. L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623,
Plaintiffs do not adequately allege overt acts and intentional participation in furtherance of the alleged plan. With respect to Belnovo, it declined to exercise a ROFO and thus become subject to the same Required Sale to which Plaintiffs were subject. With respect to GM, purportedly as part of a scheme to “engineer a low offer from Plaintiffs,” employees of GM allegedly said that GM had decided to invest no more money in GPIM and suggested the Plaintiffs acquire GPIM themselves. (SAC ¶¶ 32-34.) However, given that the LLC Agreement contains no requirement for bidding, appraisal, or fair market value in connection with a Required Sale, such a scheme is entirely irrelevant to the wrong alleged of forcing plaintiffs to sell in a Required Sale at an unfair price.
In sum, the Plaintiffs’ civil conspiracy claim against Belnovo and GM is dismissed for failure to allege an underlying tort. GM is not alleged to have owed any fiduciary duty to the Plaintiffs, and the SAC is devoid of allegations of actions taken by either Belnovo or GM that could be considered an overt act or intentional participation in the alleged conspiracy.
Plaintiffs do not deny that they contractually waived any right to complain of the sale price (LLC Agreement § 7.3) and gave Pali the ability to force a sale of their interests in a “Required Sale” without any requirement of an appraisal or a fair market value determination. (Id.) In the face of Delaware law that gives maximum effect to the principle of freedom of contract up
In response, the Plaintiffs have cited In re Atlas Energy Res., LLC, Unitholders Litig., No. 4589-VCN,
Just as a merger between a parent and its corporate subsidiary inherently threatens the interests of minority shareholders, a merger between a parent and its publicly held limited liability company subsidiary inherently threatens the rights of minority unitholders. The difference is that, in the context of a limited liability company, the parties can specify by contract the protections, or lack thereof, that they want the minority to have against such threats. If they do so, a court will respect the parties’ freedom of contract and will not apply the default standard.
Atlas,
The Plaintiffs contend that the LLC Agreement provisions in this regard do not specify that they apply to “self-dealing” transactions involving a “cоnflict of interest.” However, once again, it was not Belnovo that made the decision to sell GPIM to another subsidiary of its parent company, it was Pali. Because Pali is unrelated to any of Belnovo, GM or GPIM Holdings, Pali’s decision to sell GPIM to GPIM Holdings did not represent a “conflict of interest” nor was it “self-dealing.” The Allegations of Aiding and Abetting A Breach Of Fiduciary Duty Against GM Are Insufficient
The fourth count of the SAC alleges that GM aided and abetted Belnovo’s alleged breach of fiduciary duty. (SAC ¶¶ 58-63.) Plaintiffs’ allegations do not satisfy the elements of a claim for aiding and abetting a breach of fiduciary duty under either New York or Delaware law.
New York courts have taken three approaches to deciding which state’s law applies to an aiding and abetting breach of fiduciary duty claim: an internal affairs approach, a torts based “greatest interest” approach, and a hybrid approach. Compare Buckley v. Deloitte & Touche USA LLP, No. 06 Civ. 329(SHS),
Under New York law, a claim of aiding and abetting breach of fiduciary duty has three elements: (1) existence of a breach of fiduciary obligations, of which the aider and abettor had actual knowledge; (2) the defendant knowingly induced or participated in the breach; and (3) the plaintiff suffered damages as a result of the breach. See In re Sharp Int’l Corp.,
Plaintiffs have failed to allege an underlying breach of fiduciary duty by Belnovo; GM’s knowing participation in Belnovo’s alleged breach of fiduciary duty; or the level of particularity required by Rule 9(b).
Under either New York or Delaware law, a claim for aiding and abetting breach of fiduciary duty is dependent upon the underlying breach of fiduciary duty. See, e.g., Kolbeck v. LIT Am., Inc.,
Moreover, both New Yоrk and Delaware require a plaintiff to allege facts sufficient to establish that the alleged aider and abettor knowingly participated in the alleged breach of fiduciary duty. See Kolbeck,
Although Delaware courts have found that knowing participation need not be
According to the SAC, GM took essentially three actions that purportedly aided and abetted Belnovo’s alleged breach of fiduciary duty. First, GM set up a subsidiary, GPIM Holdings, as a vehicle for the purchase of GPIM. Second, two GM employees were on the GPIM Board, which made statements purportedly designed to get Plaintiffs to submit an artificially low bid for GPIM to set up a low valuation for the subsequent sale to GPIM Holdings. (SAC ¶ 31.) Third, GM purportedly “exercised financial power over Pali.” (Id. ¶ 60.)
These allegations are insufficient because they fail to allege that these actions enabled Belnovo’s alleged breach to occur. The Plaintiffs stаte that “Belnovo owed Plaintiffs a fiduciary duty to not sell GPIM at less than market value” (Id. ¶ 51), and that the triggering of a Required Sale of GPIM under the LLC Agreement was a breach of this fiduciary duty. However, the Plaintiffs do not allege that the Required Sale required a bid in order to set a value and therefore do not explain why the parties’ alleged inducement of Plaintiffs to make a $1 offer for GPIM would lead to or assist Belnovo’s alleged breach of fiduciary duty. Similarly, GM’s incorporation of GPIM Holdings, and exercise of purported financial leverage over Pali, did not provide substantial assistance to Belnovo’s purported failure to either stop the sale or secure a higher price. Cf. In re Sharp Int’l Corp.,
The Plaintiffs have also failed to plead the allegations underlying the claim that GM aided and abetted a brеach of fiduciary duty with the specificity required to meet the particularity requirements of Rule 9(b). First, Plaintiffs’ general and conclusory statements in the SAC that GM: (1) aided and abetted a breach of fiduciary duty; (2) “knew the transfer was a violation of fiduciary duties”; (3) “knowingly participated in the scheme to defraud Plaintiffs”; and (4) “provided substantial assistance to Belnovo in connection with the scheme” do not meet the heightened pleading requirements. See Glidepath Holding B.V. v. Spherion Corp.,
The factual allegations regarding fraudulent statements do not identify the speakers. While the SAC states that GM employees Juan Carlos Barrera and Rodrigo Diaz “suggested that Plaintiffs acquire Pali Holdings themselves” (SAC ¶ 32), it does not specify which of them made this suggestion and the remaining allegedly fraudulent statements are attributed generally to the “Board,” which consisted of sеven people (including Serpa), only two of whom
In addition, some factual allegation supporting actual intent is required. Glidepath,
In ruling upon the motion to dismiss filed by GPIM Holdings, the March 17 Opinion held that the allegations against GPIM Holdings were sufficient to withstand a motion to dismiss. See March 17 Opinion, slip op. at 11-15,
Plaintiffs have not alleged that GPIM Holdings was unjustly enriched, nor have they articulated any facts to support a value for GPIM beyond the $1,000 that Pali Capital accepted in exchange for GPIM’s liabilities. Plaintiffs have not alleged any profit or benefit that GPIM Holdings received as a result of the sale of GPIM in January 2009. Indeed, Plaintiffs themselves bid only $1.00 for GPIM. (SAC ¶52.) Stated simply, there can be no unjust enrichment where there is no enrichment at all.
Id. at 15-16.
This statement is dispositive of not just the unjust enrichment claim, but of the civil conspiracy and aiding and abetting breach of fiduсiary duty claims as well. Damages are an essential element of both claims, and Plaintiffs have failed to plead them. See Gatz,
The Claims Against Belnovo Are Barred By The LLC Agreement
Section 4.3 of the LLC Agreement exculpates Members for any liability “except as provided herein or as required by the [Delaware Limited Liability Company] Act” except to the extent “a judgment оr other final adjudication adverse to such Member establishes (i) that its acts were committed in bad faith or were the result of active or deliberate dishonesty or (ii) that such Member personally gained in fact a financial profit or other advantage to which such Member was not entitled.” Such clauses will be enforced under Delaware law. See Fisk Ventures, LLC v. Segal, No. 3017-CC,
The SAC does not allege that Belnovo took any action contrary to the terms of the LLC Agreement or the Delaware Limited Liability Company Act. Nor does the SAC plead with sufficient particularity that Belnovo’s actions were cоmmitted in bad faith or that Belnovo gained a financial profit. See Wood v. Baum,
In sum, the claims against Belnovo are barred by the LLC Agreement’s provision exculpating members from liability except in specified circumstances not alleged in the AC.
Conclusion
Based upon the conclusions set forth above, Defendants’ motion is granted and the SAC is dismissed as to Belnovo and GM. The Plaintiffs are granted leave to replead within 20 days.
It is so ordered.
Notes
. The SAC, filed as set forth, does not differ from the Amended Complaint as to these Defendants and the motion is deemed to be directed to the SAC, the latter filed pleading.