AIG Retirement Services, Inc. v. Altus Finance S.A.

MEMORANDUM **

Plaintiff AIG Retirement Services, Inc. (“AIG”), timely appeals from the district court’s grant of Defendants’ motions to dismiss and motions for summary judgment. We have jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse in part.

“We review de novo the district court’s dismissal of a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir.2002) (internal citations omitted). Nevertheless, “we may affirm the district court’s dismissal on any ground supported by the record.” Gemtel Corp. v. Cmty. Redevelopment Agency, 23 *759 F.3d 1542, 1546 (9th Cir.1994) (internal citations omitted). We also review de novo the district court’s grant of summary judgment. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc).

First, the district court prematurely dismissed AIG’s breach of the implied covenant of good faith and fair dealing claim. AIG adequately alleged that even though the MAAF Defendants transferred their New California shares to a “permitted transferee” under the Stockholders Agreement, because Defendants knew Artemis could only fraudulently and unlawfully…

Although I join most of the disposition in this case, I respectfully disagree with my colleagues’ conclusions concerning AIG’s “defrauded holder of a right of first refusal” and unjust enrichment claims. I believe AIG cannot recover under its defrauded holder theory and can maintain a separate claim for unjust enrichment.

I.

The majority treats the “defrauded holder of a right of first refusal” claim as functionally identical to the “defrauded bidder” claim, reinstating the former “[f]or the same reasons” that it reinstated the latter. This cursory discussion overlooks the factual basis of the defrauded holder claim, which has nothing to do with a bidding process. California Civil Code section 3843 applies to the defrauded holder claim. Consequently I would hold that summary judgment was warranted because AIG could not recover damages.

California Civil Code section 3343 severely limits the availability of lost profits damages to “[o]ne defrauded in the purchase, sale or exchange of property.” Cal. Civ.Code § 3343(a)(4). City Solutions Inc. v. Clear Channel Communications, Inc. (City Solutions II), cited by the majority, excludes bidding processes from “purchase, sale or…

FILED

NOT FOR PUBLICATION FEB 09 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

AIG RETIREMENT SERVICES, INC., Nos. 07-56019 f/µ/a SUNAMERICA, Inc. D.C. No. 2:05-cv-01035-JFW Plaintiff - Appellant, v.

MEMORANDUM *

ALTUS FINANCE S.A., a corporation organized under French law,

Defendant, and

AURORA S.A., a corporation organized under French law; ARTEMIS S.A., a corporation organized under French law; ARTEMIS FINANCE S.N.C., a entity doing business under French law; CDR ENTERPRISES, a corporation organized under French law; CONSORTIUM DE REALISATION S.A., a corporation organized under French law; MAAF ASSURANCES, a mutual insurer organized under French law; MAAF VIE S.A., a corporation organized under French law; CREDIT LYONNAIS S.A., a corporation organized under French law,

Defendants-Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. AIG RETIREMENT SERVICES, INC., No. 07-56679 f/µ/a SUNAMERICA, Inc., D.C. No. 2:05-cv-01035-JFW…