13-829-cv
Woori Bank v. Merrill Lynch, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
21st day of November, two thousand thirteen.
Present:
BARRINGTON D. PARKER,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
____________________________________________________
Woori Bank,
Plaintiff-Appellant,
v. No. 13-829-cv
Merrill Lynch, et al.,
Defendants–Appellees.
____________________________________________________
FOR APPELLANT: Brent W. Landau, Hausfeld LLP, Philadelphia, PA.
FOR APPELLEES: Adam S. Hakki, John Gueli, New York, NY, for Merrill Lynch,
Merrill Lynch International, Inc., Pierce, Fenner & Smith, Inc.,
Merrill Lynch & Co., Inc., and Bank of America Corporation.
David B. Hennes, New York, NY, for Taberna Preferred Funding
II, Inc., and Taberna Preferred Funding VI, Inc.,
____________________________________________________
Appeal from a judgment of the United States District Court Southern District of New
York (Marrero, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Woori Bank (“Woori”) appeals from the February 6, 2013 judgment
of the United States District Court for the Southern District of New York (Marrero, J.), granting
Defendants-Appellees’ motion to dismiss the complaint based on the applicable statute of
limitations. We assume the parties’ familiarity with the facts, procedural history, and issues on
appeal.
Woori filed a complaint on May 18, 2012, asserting claims for fraud, rescission,
negligent misrepresentation, and unjust enrichment arising out of its $143 million investment in
several collateralized debt obligations (“CDOs”). Merrill Lynch & Co., Inc., Merrill Lynch
International, Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., and Bank of America
Corporation (collectively, “Merrill Lynch”) moved to dismiss the complaint, arguing that
Woori’s claims were time barred. The district court granted the motion, determining that
Woori’s complaint was time barred because Woori was aware of its claim prior to May 2009.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),
construing the complaint liberally, accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir. 2002).
It is well settled that a federal court sitting in diversity must look to the law of the forum
state to determine which state’s statute of limitations to apply. Sun Oil Co. v. Wortman, 486 U.S.
717, 722-29 (1988). In this case, New York’s borrowing statute applies; it provides:
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An action based upon a cause of action accruing without the state cannot be commenced
after the expiration of the time limited by the laws of either the state or the place without
the state where the cause of action accrued, except that where the cause of action accrued
in favor of a resident of the state the time limited by the laws of the state shall apply.
N.Y. C.P.L.R. § 202.
South Korea is Woori’s place of residence as well as the location where it allegedly
sustained economic harm. Woori’s causes of action therefore accrued in South Korea. See
generally Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 529 (1999) (“When an alleged
injury is purely economic, the place of injury usually is where the plaintiff resides and sustains
the economic impact of the loss.”). The parties do not dispute that the applicable South Korean
statute of limitations is three years. See Appellant’s Br. 5-7; Appellees’ Br. 6. Therefore,
pursuant to the New York borrowing statute, the South Korean statute of limitations applies to
this action, because it is shorter than New York’s six-year statute. See N.Y.C.P.L.R. § 213(8).
Woori argues that its claim accrued in January 2011, when the Financial Crisis Inquiry
Commission (“FCIC”) published the Final Report of the National Commission on the Causes of
the Financial and Economic Crisis in the United States, and, as a result, its claim cannot be time
barred. As the district court noted, however, the FCIC report was not a “talismanic open
sesame.” Woori Bank v. Merrill Lynch, 923 F. Supp. 2d 491, 498 (S.D.N.Y. 2013) (internal
quotation marks omitted). Indeed, in its complaint Woori refers to sources from 2008 discussing
Merrill Lynch’s practices regarding its CDOs, and Woori pleads that the CDOs at issue were
downgraded in October 2007 “expos[ing]” Merrill Lynch’s “corrupt system of CDO ratings.”
Joint App. at 33, 36, 50-55. The district court carefully analyzed Woori’s claims and correctly
concluded that the overall publicity surrounding Merrill Lynch’s CDOs, the lawsuits filed
against Merrill Lynch relating to the CDOs, and the government investigations into Merrill
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Lynch’s activities were sufficient to make Woori “actually and specifically recognize[]” this
claim for damages prior to May 2009, as required under South Korean law. Joint App. 985, 995.
Having conducted an independent and de novo review of the record, we AFFIRM the
judgment of the district court substantially for the reasons articulated in its thorough decision.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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