ALBERTO VILAR plf-ap, v. JOHN RUTLEDGE def-res

10060-10061. ALBERTO VILAR plf-ap, v. JOHN RUTLEDGE def-res — Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York (David C. Burger of counsel), for ap — Hoguet Newman Regal & Kenney, LLP, New York (John J. Kenney of counsel), for John Rutledge and Charles Parker, res — Dechert LLP, New York (Linda C. Goldstein of counsel), for Munder Capital Management, Inc., res — Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered March 14, 2012 and March 20, 2012, which, inter alia, respectively, granted the individual defendants' motion and defendant Munder Capital Management, Inc.'s (Munder) motion to dismiss the complaint, unanimously affirmed, with costs.

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10060-10061. ALBERTO VILAR plf-ap, v. JOHN RUTLEDGE def-res — Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York (David C. Burger of counsel), for ap — Hoguet Newman Regal & Kenney, LLP, New York (John J. Kenney of counsel), for John Rutledge and Charles Parker, res — Dechert LLP, New York (Linda C. Goldstein of counsel), for Munder Capital Management, Inc., res — Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered March 14, 2012 and March 20, 2012, which, inter alia, respectively, granted the individual defendants’ motion and defendant Munder Capital Management, Inc.’s (Munder) motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiffs’ argument that they were entitled to payment when the independent directors/defendants entered into a management agreement with a new investment advisor following the arrests of the individual plaintiffs is unavailing, as plaintiffs had no right to continue managing the Amerindo Technology Fund (the Fund). The unambiguous provisions of the Investment Company Act and the investment advisory agreement gave the independent directors unqualified authority to terminate or renew the agreement (see Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005]). At the time the independent directors appointed Munder as the Fund’s interim investment advisor (on June 3, 2005), the agreement had already expired (on May 31, 2005). Thus, after the agreement’s expiration, the independent directors had unfettered discretion to renew (or not renew) the agreement (see Navellier v. Sletten, 262 F3d 923, 935 [9th Cir 2001], cert denied 536 US 941 [2002]). Further, the entire basis of plaintiffs’ asserted property right is their allegation that they planned to seek over $10 million for the sale of management rights to the Fund from unnamed buyers, yet plaintiffs make no allegation that they actually could have sold the Fund to the unnamed manager for that amount, particularly in a market that was devalued due to the individual plaintiffs’ arrest.

ALBERTO VILAR plf-ap, v. JOHN RUTLEDGE def-res

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