Fund Liquidation Holdings LLC v. Bank of America Corp.

19-2719-cv
Fund Liquidation Holdings LLC v. Bank of America Corp.

United States Court of Appeals
For the Second Circuit

August Term 2020

Argued: September 11, 2020
Decided: March 17, 2021

No. 19-2719-cv

FUND LIQUIDATION HOLDINGS LLC, AS
ASSIGNEE AND SUCCESSOR-IN-INTEREST TO
FRONTPOINT ASIAN EVENT DRIVEN FUND,
L.P., ON BEHALF OF ITSELF AND ALL OTHERS
SIMILARLY SITUATED, SONTERRA CAPITAL
MASTER FUND, LTD.,

Plaintiffs-Appellants,

FRONTPOINT ASIAN EVENT DRIVEN FUND,
LTD., FRONTPOINT ASIAN EVENT DRIVEN
FUND, L.P.,

Plaintiffs,

v.

BANK OF AMERICA CORPORATION, BANK OF
AMERICA, N.A, ROYAL BANK OF SCOTLAND
PLC, THE ROYAL BANK OF SCOTLAND GROUP
PLC, RBS SECURITIES JAPAN LIMITED, UBS
AG, UBS SECURITIES JAPAN CO., LTD., ING
GROEP N.V., ING BANK N.V., BNP PARIBAS,
 S.A., BNP PARIBAS NORTH AMERICA, INC.,
BNP PARIBAS SECURITIES CORP., BNP
PARIBAS PRIME BROKERAGE, INC., OVERSEA-
CHINESE BANKING CORPORATION LTD.,
BARCLAYS PLC, BARCLAYS BANK PLC,
BARCLAYS CAPITAL INC., DEUTSCHE BANK
AG, CREDIT AGRICOLE CORPORATE AND
INVESTMENT BANK, CREDIT AGRICOLE S.A.,
CREDIT SUISSE GROUP AG, CREDIT SUISSE
AG, STANDARD CHARTERED BANK,
STANDARD CHARTERED PLC, DBS BANK
LTD., DBS GROUP HOLDINGS LTD., DBS
VICKERS SECURITIES (USA) INC., UNITED
OVERSEAS BANK LIMITED, AUSTRALIA AND
NEW ZEALAND BANKING GROUP, LTD.,
BANK OF TOKYO-MITSUBISHI UFJ, LTD., THE
HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, HSBC BANK USA,
N.A., HSBC HOLDINGS PLC, HSBC NORTH
AMERICA HOLDINGS INC., HSBC USA INC.,
MACQUARIE BANK LTD., MACQUARIE GROUP
LTD., COMMERZBANK AG, ING CAPITAL
MARKETS LLC, CREDIT SUISSE
INTERNATIONAL, ANZ SECURITIES, INC.,
UOB GLOBAL CAPITAL, LLC,

Defendants-Appellees,

CITIBANK, N.A., CITIGROUP INC., JPMORGAN
CHASE & CO., JP MORGAN CHASE BANK,
N.A., JOHN DOES, NOS. 1–50,

Defendants. *

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2
 Appeal from the United States District Court
for the Southern District of New York
No. 16-cv-5263, Alvin K. Hellerstein, Judge.

Before: SULLIVAN, PARK, and NARDINI, Circuit Judges.

In 2016, two Cayman Islands investment funds filed a class action complaint
against numerous banks, alleging that the banks had conspired to manipulate
certain benchmark interest rates. It was not until a year later that the banks
discovered that the two plaintiff funds had been dissolved years earlier, and that
the case was actually being prosecuted by a separate entity, Fund Liquidation
Holdings LLC, which maintains that it was assigned the dissolved entities’ claims.
The district court (Hellerstein, J.) dismissed the case with prejudice for lack of
subject-matter jurisdiction, reasoning that, because the action was initiated by non-
existent parties, the case was a legal nullity and so could not be salvaged through
Federal Rule of Civil Procedure 17.
On appeal, we are primarily tasked with deciding two issues: (i) whether
the dissolved entities possessed Article III standing when the case was initiated,
and, if not, (ii) whether Fund Liquidation is nevertheless able to join the action
through Rule 17. We conclude that the dissolved funds lacked standing, but that
Article III was nonetheless satisfied because Fund Liquidation, the real party in
interest, has had standing at all relevant times and may step into the dissolved
entities’ shoes. As a result, we VACATE the district court’s judgment, and
REMAND the case for additional proceedings.

VACATED AND REMANDED.

ERIC F. CITRON (Vincent Briganti, Margaret
MacLean, Lowey Dannenberg, P.C., White
Plains, NY, on the brief), Goldstein & Russell,
P.C., Bethesda, MD, for Plaintiffs-Appellants
Fund Liquidation Holdings LLC and Sonterra
Capital Master Fund, Ltd.
JOEL KURTZBERG (Herbert S. Washer, Elai
Katz, Jason M. Hall, Lauren Perlgut, Adam S.
Mintz, on the brief), Cahill Gordon & Reindel
LLP, New York, NY, for Defendants-Appellees
Credit Suisse Group AG, Credit Suisse AG, and
Credit Suisse International.

Arthur J. Burke, Paul S. Mishkin, Adam G.
Mehes, Davis Polk & Wardwell LLP, New
York, NY, for Defendants-Appellees Bank of
America Corporation and Bank of America, N.A.

Penny Shane, Corey Omer, Sullivan &
Cromwell LLP, New York, NY, for Defendants-
Appellees Australia and New Zealand Banking
Group Limited and ANZ Securities, Inc.

Christopher M. Viapiano, Elizabeth A.
Cassady, Sullivan & Cromwell LLP,
Washington, DC, for Defendant-Appellee The
Bank of Tokyo-Mitsubishi UFJ, Ltd., n/k/a MUFG
Bank, Ltd.

Jonathan D. Schiller, Christopher Emmanuel
Duffy, Leigh M. Nathanson, Boies Schiller
Flexner LLP, New York, NY, for Defendants-
Appellees Barclays PLC, Barclays Bank PLC, and
Barclays Capital Inc.

Jayant W. Tambe, Stephen J. Obie, Kelly A.
Carrero, Jones Day, New York, NY, for
Defendants-Appellees BNP Paribas, S.A., BNP
Paribas North America, Inc., BNP Paribas
Securities Corp., and BNP Paribas Prime
Brokerage, Inc.

4
David R. Gelfand, Mark D. Villaverde,
Milbank LLP, New York, NY, for Defendant-
Appellee Commerzbank AG.

Andrew Hammon, Kimberly Anne Havlin,
White & Case LLP, New York, NY; Darryl S.
Lew, White & Case LLP, Washington, DC, for
Defendants-Appellees Crédit Agricole Corporate
and Investment Bank and Crédit Agricole S.A.

Erica S. Weisgerber, Debevoise & Plimpton
LLP, New York, NY, for Defendants-Appellees
DBS Bank Ltd., DBS Group Holdings Ltd., and
DBS Vickers Securities (USA) Inc.

Aidan Synnott, Hallie S. Goldblatt, Paul,
Weiss, Rifkind, Wharton & Garrison LLP,
New York, NY, for Defendant-Appellee
Deutsche Bank AG.

Christopher M. Paparella, Steptoe & Johnson
LLP, New York, NY, for Defendants-Appellees
Macquarie Bank Ltd. and Macquarie Group Ltd.

C. Fairley Spillman, Pratik A. Shah, Akin
Gump Strauss Hauer & Feld LLP,
Washington, DC, for Defendant-Appellee
Oversea-Chinese Banking Corporation Limited.

David S. Lesser, Jamie S. Dycus, Wilmer
Cutler Pickering Hale and Dorr LLP, New
York, NY, for Defendants-Appellees The Royal
Bank of Scotland plc, The Royal Bank of Scotland
Group plc, and RBS Securities Japan Limited.

Marc J. Gottridge, Lisa J. Fried, Benjamin A.
Fleming, Hogan Lovells US LLP, New York,
NY, for Defendants-Appellees Standard
Chartered Bank and Standard Chartered plc.
5
 Dale C. Christensen, Jr., Noah Czarny,
Seward & Kissel LLP, New York, NY, for
Defendants-Appellees United Overseas Bank
Limited and UOB Global Capital, LLC.

Nowell D. Bamberger, Cleary Gottlieb Steen
& Hamilton LLP, Washington, DC; Charity E.
Lee, Cleary Gottlieb Steen & Hamilton LLP,
New York, NY, for Defendants-Appellees The
Hongkong and Shanghai Banking Corporation
Limited, HSBC Bank USA, N.A., HSBC Holdings
plc, HSBC North America Holdings Inc., and
HSBC USA Inc.

Mark A. Kirsch, Eric J. Stock, Jefferson E. Bell,
Gibson, Dunn & Crutcher LLP, New York,
NY, for Defendants-Appellees UBS AG and UBS
Securities Japan Co., Ltd.

Amanda F. Davidoff, Sullivan & Cromwell
LLP, Washington, DC, for Defendants-
Appellees ING Groep N.V., ING Bank N.V., and
ING Capital Markets LLC.

RICHARD J. SULLIVAN, Circuit Judge:

In 2016, two Cayman Islands investment funds filed a class action complaint

against numerous banks (the “Banks”), alleging that the Banks had conspired to

manipulate certain Singapore-based benchmark interest rates. It was not until a

year later that the Banks discovered that the two plaintiff funds had been dissolved

years earlier, and that the case was actually being prosecuted by a separate entity,

Fund Liquidation Holdings LLC, which asserts that it was assigned the dissolved

6
entities’ claims. Following that revelation, the district court (Hellerstein, J.)

dismissed the case with prejudice for lack of subject-matter jurisdiction, reasoning

that, because the action was initiated by non-existent parties, the case was a legal

nullity and so could not be salvaged through Federal Rule of Civil Procedure 17.

On appeal, we are primarily tasked with deciding two issues: (i) whether

the dissolved entities possessed Article III standing when the case was initiated,

and, if not, (ii) whether Fund Liquidation is nevertheless able to join the action

through Rule 17. We conclude that, although the dissolved funds lacked standing

at the time the case was commenced, Article III was nonetheless satisfied because

Fund Liquidation, the real party in interest, has had standing at all relevant times

and may step into the dissolved entities’ shoes without initiating a new action from

scratch. As a result, we VACATE the district court’s judgment, and REMAND

the case for further proceedings.

I. Background

The global financial system relies on a series of floating benchmark interest

rates, many of which reflect the average cost that a bank incurs when borrowing

7
money from one of its peers. 1 The most well-known example is the London

Interbank Offered Rate, more commonly referred to as “LIBOR.” In recent years,

many of the world’s largest financial institutions have been accused of

manipulating several of these benchmarks in their favor. The implications of such

manipulation can be staggering as these rates are used as reference points in

countless financial instruments across the world and affect transactions

collectively worth trillions of dollars.

This case concerns an alleged conspiracy by the Banks and others to

manipulate two such benchmark rates: the Singapore Interbank Offered Rate

(referred to as “SIBOR”) and the Singapore Swap Offered Rate (referred to as

“SOR”). 2 The two rates are calculated by a trade group, the Association of Banks

in Singapore, which is composed of various banks (including some of the

defendant banks in this case). Each day, an agent of that association calculates the

two rates based, in part, on interest rate quotes submitted by a panel of banks that,

again, include several of the defendants in this case (the “Panel”). Between 2007

1Because this appeal arrives before us at the pleading stage, we draw these facts from Fund
Liquidation’s complaint and accept them to be true. See Iowa Pub. Emps.’ Ret. Sys. v. MF Glob.,
Ltd., 620 F.3d 137, 139 n.1 (2d Cir. 2010).
2Technically, Fund Liquidation alleges that the Banks manipulated three rates, the SOR
benchmark and two SIBOR benchmarks, one denominated in U.S. dollars and another
denominated in Singapore dollars.

8
and 2011, the Banks allegedly worked together to manipulate those two

benchmark rates so that they would shift in directions that favored the Banks’

financial positions. “The [alleged] effect of [the Banks’] conspiratorial price-fixing

was to necessarily reduce the amount of interest paid to all holders of SIBOR- and

SOR-based financial instruments.” Fund Liquidation Br. at 8. Eventually, this

conspiracy was uncovered in 2013 through an investigation spearheaded by the

Monetary Authority of Singapore.

Three years later, on July 5, 2016, an initial class action complaint was filed

against the Banks (and others) in the names of FrontPoint Asian Event Driven

Fund, L.P. and Sonterra Capital Master Fund, Ltd. (together, the “Dissolved

Funds”), two Cayman Islands investment funds that claimed to have held

financial instruments that relied on the manipulated benchmark rates. Two critical

pieces of information were omitted from this initial complaint. First, the complaint

failed to disclose that the Dissolved Funds had apparently assigned (or, at least,

attempted to assign) the rights to their claims to Fund Liquidation, and that it was

really Fund Liquidation that was pulling the strings behind the scenes. Second,

and perhaps more importantly, the pleadings failed to reflect that the Dissolved

Funds were no longer in existence when the case was initiated – FrontPoint had

9
been dissolved nearly five years earlier, in November 2011, and Sonterra had been

dissolved shortly thereafter, in December 2012.

On October 31, 2016, a first amended complaint was filed, which added

additional claims under the Sherman Act, the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), and common law. As before, this complaint made

no mention of Fund Liquidation and referred to the Dissolved Funds in the present

tense as if they were still in existence. See J. App’x at 137 (“FrontPoint . . . is an

investment fund” (emphasis added)); id. at 138 (“Sonterra . . . is an investment

fund” (emphasis added)). About one year later, the district court dismissed most

of the asserted claims, finding that the court lacked personal jurisdiction over the

subset of defendant banks that were foreign entities, that Sonterra failed to

demonstrate that it would be an efficient enforcer of the antitrust laws, and that

the plaintiffs had failed to plead plausible antitrust, RICO, or common law claims.

See generally FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16-cv-

5263 (AKH), 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017). The district court refused,

however, to dismiss FrontPoint’s antitrust claims against the defendants that were

members of the Panel, since those defendants submitted the allegedly fraudulent

interest rate data directly to the Association of Banks in Singapore. Id. at *11. In

10
addition, the district court permitted the plaintiffs to file an amended pleading to

correct the shortcomings in the first amended complaint. See id. at *17.

So, on September 18, 2017, a second amended complaint was filed. 3 It was

only in this pleading that, for the first time, the plaintiffs clarified that the

Dissolved Funds were no longer in operation. J. App’x at 312 (“FrontPoint . . . was

an investment fund” (emphasis added)); id. at 313 (“Sonterra . . . was an investment

fund” (emphasis added)). The Banks responded by filing a new motion to dismiss,

which added a fresh set of grounds for dismissal, including the contention that the

Dissolved Funds lacked capacity to sue in light of their dissolution. It was not

until briefing and oral argument that the plaintiffs eventually explained that the

Dissolved Funds had assigned their claims to Fund Liquidation, and that it was

Fund Liquidation which was, and had always been, the real plaintiff behind the

case. Fund Liquidation then requested to substitute into the action under Federal

Rule of Civil Procedure 17(a)(3) as the real party in interest and asked that it be

allowed to continue litigating FrontPoint’s and Sonterra’s claims in its own name.

3 A corrected copy of the second amended complaint was filed one month later.

11
 Around this time, some of the defendants (who have not appealed) decided

to settle with Fund Liquidation. Those parties eventually executed binding term

sheets and notified the district court.

On October 4, 2018, within weeks of those agreements being signed, the

district court dismissed with prejudice the RICO claims and the antitrust claims

asserted against certain defendants, but again permitted the plaintiffs to proceed

on the common law claims and antitrust claims brought against those defendants

who were members of the Panel. See FrontPoint Asian Event Driven Fund, L.P. v.

Citibank, N.A., No. 16-cv-5263 (AKH), 2018 WL 4830087, at *11–12 (S.D.N.Y. Oct. 4,

2018). The district court also concluded that Fund Liquidation had received a full

assignment of rights from FrontPoint and, as a result, granted leave for Fund

Liquidation to submit a Third Amended Complaint under Rule 17(a)(3) so that it

could join the action in its own name. See id. While the district court found that

Sonterra had also assigned its claims to Fund Liquidation, it dismissed Sonterra’s

remaining claims (all of which were antitrust claims) with prejudice, reasoning

that, because Sonterra had not transacted directly with any of the defendants, it

was not an efficient enforcer of the antitrust laws. See id. at *6, *11–12.

12
 A few weeks later, on October 26, 2018, Fund Liquidation filed a third

amended complaint, naming as plaintiff “Fund Liquidation Holdings LLC, as

assignee and successor-in-interest to FrontPoint.” 4 See J. App’x at 603. The

substantive allegations in this complaint were effectively identical to those in the

second amended complaint, with the exception that Fund Liquidation added

additional facts concerning the pre-suit assignment it received from FrontPoint.

The following month, the Banks moved to dismiss the new complaint,

arguing, among other things, that Fund Liquidation could not substitute into the

action under Rule 17(a)(3) because the case was a legal nullity from the outset –

having been initiated in the names of dissolved corporate entities – and that, since

the statute of limitations had now lapsed, Fund Liquidation’s new complaint was

untimely. The Banks also argued that FrontPoint did not adequately assign its

antitrust claims to Fund Liquidation.

While Fund Liquidation contested both arguments on the merits, it

indicated that it would seek to moot the issues by filing a proposed fourth

amended complaint. In that proposed complaint, Fund Liquidation sought to join

4Sonterra’s omission from the caption was a result of the district court’s prior order, which
directed Fund Liquidation “to amend the [case] caption . . . [to] reflect the rulings in th[e]
[October 2018] opinion.” FrontPoint Asian Event Driven Fund, 2018 WL 4830087, at *12.

13
two new class representatives, Moon Capital Partners Master Fund, Ltd. and

Moon Capital Master Fund, Ltd. (together, the “Moon Funds”), which had

transacted directly with the Banks and claimed to have been injured by the same

scheme. According to Fund Liquidation, the Moon Funds would be ideal class

representatives as they were not open to the same arguments concerning

assignment and capacity that had thus far plagued Fund Liquidation. Separately,

Fund Liquidation also sought preliminary approval of the settlement agreements

that it had signed with some of the defendants.

On July 26, 2019, the district court adopted the Banks’ nullity argument and

dismissed the third amended complaint with prejudice on the grounds that the

court had lacked subject-matter jurisdiction over the action from its outset,

something, the district court concluded, that could not be cured. According to the

district court: “[b]ecause [the Dissolved Funds] lacked capacity to sue, there was

no real ‘case or controversy’ before the court and, consequently, no subject-matter

jurisdiction.” Fund Liquidation Holdings LLC v. Citibank, N.A., 399 F. Supp. 3d 94,

103 (S.D.N.Y. 2019). For similar reasons, the court refused to approve the two

settlement agreements that Fund Liquidation had signed with several of the

defendants. Id. at 104. The district court also walked back its prior determination

14
and concluded that FrontPoint had not effectively assigned its claims to Fund

Liquidation, meaning that even if Fund Liquidation could join the case through

Rule 17, it would lack standing to assert FrontPoint’s claims. Id. at 102–03. Lastly,

the district court noted that even if it did possess jurisdiction over the case, the

Moon Funds could not be named as class representatives as their claims were not

subject to equitable tolling and so were untimely. Id. at 105.

This appeal followed.

II. Appellate Jurisdiction

As an initial matter, we must decide whether we have jurisdiction over

Sonterra’s claims. The Banks argue that we do not because, as they see it, Fund

Liquidation’s notice of appeal was effective only as to FrontPoint’s claims.

Specifically, the Banks point out that the caption to the notice of appeal identifies

only one plaintiff, “Fund Liquidation Holdings LLC, as assignee and successor-in-

interest to FrontPoint,” and that the body of the notice states simply that “Plaintiff”

is appealing various orders. J. App’x at 926. Taken together, the Banks say that

the notice of appeal failed to make clear that Fund Liquidation was appealing the

dismissal of Sonterra’s claims, which the Banks argue merits dismissal of that

portion of the appeal.

15
 Federal Rule of Appellate Procedure 3(c) governs the contents of a notice of

appeal. The Rule requires that such notices do three things: (1) “specify the party

or parties taking the appeal by naming each one in the caption or body of the

notice”; (2) “designate the judgment, order, or part thereof being appealed”; and

(3) “name the court to which the appeal is taken.” Fed. R. App. P. 3(c)(1). “The

requirement that a party seeking to appeal be specified in the notice of appeal is

jurisdictional.” Gusler v. City of Long Beach, 700 F.3d 646, 648 (2d Cir. 2012). Even

so, Rule 3 is clear that an appeal should “not be dismissed for informality of form

or title of the notice of appeal” if the identities of the parties seeking to appeal are

nonetheless clear. Fed. R. App. P. 3(c)(4); see also In re Motors Liquidation Co., 943

F.3d 125, 130 (2d Cir. 2019) (excusing a mistake in the notice of appeal because the

identities of the appellants were “sufficiently clear to the parties and ascertainable

to the court (with effort)”); Gusler, 700 F.3d at 648–49 (focusing Rule 3 inquiry on

whether “it is manifest from the notice as a whole that the party wishes to appeal”).

Here, Fund Liquidation technically complied with the letter of Rule 3. The

notice of appeal identified the only party taking the appeal (Fund Liquidation),

the orders that were the subject of the appeal (the order issued on July 26, 2019

and all other orders that were adverse to Fund Liquidation), and the court to which

16
the appeal was being taken (the Second Circuit). That is all that the text of

Rule 3(c)(1) requires of a notice of appeal to invoke our jurisdiction.

But even if Fund Liquidation’s failure to expressly identify Sonterra in its

notice of appeal did run afoul of Rule 3, that deficiency would be excusable since

it is sufficiently clear from the body of the notice that Fund Liquidation intended

to appeal the dismissal of each of its claims against the Banks, not just those claims

that it allegedly received from FrontPoint. For starters, the body of the notice gave

no indication that Fund Liquidation was appealing only certain claims. To the

contrary, the notice stated that Fund Liquidation was appealing “all orders . . .

entered in the case that were adverse, either in whole or in part, to [it].” J. App’x

at 926 (emphasis added). Given the “liberal[] constru[ction]” that we give to such

notices, Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004), the natural

inference is that Fund Liquidation intended to appeal the dismissal of each of its

claims. That is particularly true here given that it was the district court, not Fund

Liquidation, that removed Sonterra from the case caption. See FrontPoint Asian

Event Driven Fund, 2018 WL 4830087, at *12. Moreover, the notice of appeal

pointed specifically to the July 26, 2019 order, which discussed Fund Liquidation’s

17
argument that the case was not a nullity precisely because of Sonterra’s claims.

Fund Liquidation Holdings, 399 F. Supp. 3d at 104.

Fund Liquidation’s notice of appeal therefore not only complied with the

text of Rule 3, but also put the Banks on notice that Fund Liquidation intended to

appeal the dismissal of the claims originally held by both FrontPoint and Sonterra.

As a result, we have appellate jurisdiction over all claims raised on appeal.

III. Standard of Review

On appeal following a dismissal of a complaint for either lack of subject-

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or failure to state

a claim under Rule 12(b)(6), we review the district court’s decision de novo. See

Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56–57 (2d Cir. 2016) (subject-matter

jurisdiction); Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014) (failure to state a claim).

As part of that review, we “accept[] as true all material factual allegations of the

complaint[] and draw[] all reasonable inferences in favor of the plaintiff.” Carter,

822 F.3d at 56–57 (internal citations, quotation marks, and alterations omitted);

Krys, 749 F.3d at 128 (same).

Separately, we review denials of motions for leave to amend, to substitute

into an action under Rule 17(a), or to approve a class action settlement agreement

18
for abuse of discretion. See Klein ex rel. Qlik Techs., Inc. v. Qlik Techs., Inc., 906 F.3d

215, 226 (2d Cir. 2018) (motion to substitute); Cent. States Se. & Sw. Areas Health &

Welfare Fund v. Merck-Medco Care, L.L.C., 504 F.3d 229, 246 (2d Cir. 2007) (approval

of class action settlement); Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002)

(leave to amend). But where, as here, such denials were based on decisions of pure

law, they are functionally reviewed de novo, as a decision premised on a legal error

is necessarily an abuse of discretion. See Klein, 906 F.3d at 226; Gelboim v. Bank of

Am. Corp., 823 F.3d 759, 769 (2d Cir. 2016).

IV. Discussion

This case requires us to engage in a two-step inquiry. First, we must

determine whether the Dissolved Funds had Article III standing when the case

was initiated in their names. If so, then that would seem to end the matter in Fund

Liquidation’s favor. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d

11, 20–21 (2d Cir. 1997) (indicating that courts have the power to permit a real

party in interest to join an action under Federal Rule of Civil Procedure 17 where

the originally named plaintiff had standing). But if the Dissolved Funds lacked

standing at that time, we must decide whether Fund Liquidation can nevertheless

substitute into the action in their place.

19
A. The Dissolved Funds Lacked Article III Standing at the Case’s Initiation

The Banks argue that the Dissolved Funds lacked standing when the

original complaint was filed because, by that time, the Dissolved Funds had

already (i) “disavowed any interest” in the case, having assigned their claims to

Fund Liquidation, Banks Br. at 34, and (ii) been dissolved under Cayman Islands

law and so had no legal existence. We address each argument in turn.

1. A Pre-Suit Assignment Does Not Extinguish Article III Standing

There is little merit to the Banks’ initial argument that the Dissolved Funds’

pre-filing assignment of their claims stripped the Dissolved Funds of Article III

standing. As several of our sister circuits have explained, there is a distinction

between having standing to pursue a claim and being a real party in interest with

respect to that claim, only the latter of which is implicated by an assignment. See

First Am. Title Ins. Co. v. Nw. Title Ins. Agency, 906 F.3d 884, 890 (10th Cir. 2018);

Norris v. Causey, 869 F.3d 360, 366–67 (5th Cir. 2017); Cranpark, Inc. v. Rogers Grp.,

Inc., 821 F.3d 723, 730 (6th Cir. 2016) (holding that “one who sells his interest in a

cause of action is not deprived of Article III standing, but . . . is [instead] susceptible

to a real-party-in-interest challenge”); Dunn v. Advanced Med. Specialties, Inc., 556

F. App’x 785, 789–90 (11th Cir. 2014); Whelan v. Abell, 953 F.2d 663, 671–72 (D.C.

Cir. 1992); Apter v. Richardson, 510 F.2d 351, 353 (7th Cir. 1975); see also 6A Charles
20
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1542 (3d ed.)

(hereinafter, “Wright & Miller”) (explaining the differences between possessing

standing and being a real party in interest); id. § 3531 n.10 (same). That distinction

makes sense.

Article III standing has three elements: (i) “the plaintiff must have suffered

an injury in fact” that is “concrete and particularized” as well as “actual or

imminent”; (ii) “there must be a causal connection between the injury and the

conduct complained of”; and (iii) “it must be likely . . . that the injury will be

redressed by a favorable judicial decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992) (internal quotation marks omitted). An assignment has no bearing

on the first two elements. After all, an assignment does not erase an injury – it is

simply an exchange of legal entitlement about who can seek to rectify that injury

in court. See Cranpark, 821 F.3d at 730–31 (reasoning that “it can[not] seriously be

contended that [the assignor] has suffered no injury in fact” following an

assignment). Nor can an assignment sever a pre-existing causal link between that

injury and the defendant. So that just leaves redressability. And given the

Supreme Court’s analysis in Sprint Communications Co. v. APCC Services, Inc., 554

U.S. 269 (2008), that too is unimpaired by an assignment.

21
 Redressability, Sprint explains, focuses “on whether the injury that a

plaintiff alleges is likely to be redressed through the litigation,” id. at 287, not on

whether the plaintiff itself is “entitled to the relief sought,” Cranpark, 821 F.3d

at 731 (internal quotation marks omitted). Here, the Dissolved Funds’ alleged

injury is no less redressable through an award of damages simply because legal

title to their claims is now owned by someone else.

To be sure, our Circuit’s pronouncements on this issue are a bit of a mixed

bag. For instance, both Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, 731 F.2d

112, 125 (2d Cir. 1984), and Valdin Investments Corp. v. Oxbridge Capital Management,

LLC, 651 F. App’x 5, 7 (2d Cir. 2016), held that assignment can result in a loss of

standing. But Aaron Ferer predates Sprint, and Valdin is a non-precedential

summary order, so neither case is binding on us. See Doscher v. Sea Port Grp. Sec.,

LLC, 832 F.3d 372, 378 (2d Cir. 2016) (explaining that we are no longer bound by a

prior panel’s opinion when an intervening Supreme Court decision has “broken

the link on which . . . [the] prior decision [was premised] or undermined an

assumption of that decision” (internal citations, quotation marks, and alterations

22
omitted)); 2d Cir. R. 32.1.1(a) (“Rulings by summary order [lack] precedential

effect.”). 5

A closer question, however, is posed in the wake of W.R. Huff Asset

Management Co. v. Deloitte & Touche LLP, 549 F.3d 100 (2d Cir. 2008). There, we

held that “Sprint makes clear that the minimum requirement for an injury-in-fact

is that the plaintiff have legal title to, or a proprietary interest in, the claim.” Id. at 108

(emphasis added). Taken at face value, that statement would seem to suggest that

retaining legal title to a claim is a constitutional requirement of standing. But there

is good reason not to read W.R. Huff so literally. First, the case concerned whether

a party has standing to assert another entity’s claim simply because it holds a

power of attorney. Id. at 103. Like the Sixth Circuit, we conclude that the statement

is best interpreted as limited to that context, and should not be construed to imply

that a “transfer [of a claim] somehow erase[s] the transferor’s injury.” Cranpark,

821 F.3d at 731 (distinguishing W.R. Huff). And second, we have made clear that

the prohibition on raising another’s legal rights is a prudential rule of standing and

5Although we are not bound by the unpublished and non-precedential ruling in Valdin, we do
not break from that panel’s decision lightly. See L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 123 n.17
(2d Cir. 2016) (cautioning that “[d]enying summary orders precedential effect does not mean that
the [C]ourt considers itself free to rule differently in similar cases” (internal quotation marks
omitted)). But as this issue presents a purely legal question of some importance, we conclude
that Valdin does not represent the law of our Circuit on this issue, and so hold in this opinion.

23
distinct from the requirements found within Article III itself. See Am. Psychiatric

Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 358 (2d Cir. 2016).

In short, then, we conclude that the Dissolved Funds’ pre-suit assignment

of their claims does not pose a constitutional roadblock after Sprint. So that leaves

only their pre-suit dissolution.

2. The Dissolved Funds’ Pre-Suit Dissolution Extinguished Both
Their Legal Existence and Their Article III Standing

Corporate dissolution implicates two potentially distinct legal concepts:

capacity to sue and legal existence. We agree with Fund Liquidation that the

former is non-jurisdictional in nature. Capacity to sue addresses only whether a

person or company that possesses an enforceable right may act as a litigant. See

Horowitz v. 148 S. Emerson Assocs. LLC, 888 F.3d 13, 19 n.4 (2d Cir. 2018). And

although it is “allied with . . . the question of standing,” capacity is “conceptually

distinct.” 59 Am. Jur. 2d Parties § 26; see also Allan Applestein TTEE FBO D.C.A. v.

Province of Buenos Aires, 415 F.3d 242, 245 (2d Cir. 2005) (demonstrating that a lack

of capacity is non-jurisdictional by permitting the defense to be waived); E.R.

Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 935–36 (2d Cir. 1998)

(same); Am. Sports Radio Network, Inc. v. Krause (In re Krause), 546 F.3d 1070, 1072

n.2 (9th Cir. 2008) (“[W]e note that it is capacity, not standing, which is at issue.”).

24
 The same, however, cannot be said for legal existence. Fund Liquidation

disagrees, suggesting that “corporate ‘existence’ has no valence apart from the . . .

issue of corporate capacity to sue.” Reply Br. at 13. While there has admittedly

been some disagreement among district courts on this issue, 6 we conclude that

Fund Liquidation’s position is incorrect.

To start, the Federal Rules of Civil Procedure differentiate between

corporate existence and capacity. For instance, Rule 17(b)(3)(A) permits courts to

imbue unincorporated associations and partnerships with the capacity to sue. But

this power does not extend to entities that lack legal existence. See Brown v. Fifth

Jud. Dist. Drug Task Force, 255 F.3d 475, 477 (8th Cir. 2001) (explaining that “the

questions of legal or juridical existence and capacity to sue and be sued are distinct,

and that a group of persons working together for a common purpose must first be

found to have legal existence before the question of capacity to sue or be sued can

arise”); see also Roby v. Corp. of Lloyd’s, 796 F. Supp. 103, 110 (S.D.N.Y. 1992)

6Compare ChinaCast Educ. Corp. v. Chen Zhou Guo, No. 15-cv-5475 (AB), 2016 WL 10653269, at *1–
2 (C.D. Cal. Jan. 8, 2016) (explaining that, “[u]nlike a case where a corporation exists in some form
but perhaps lacks a technical capacity to sue in a particular forum, Plaintiff’s own allegations
indicate that Plaintiff may not legally exist under Delaware law”), and Catalyst & Chem. Servs., Inc.
v. Glob. Ground Support, 350 F. Supp. 2d 1, 22 (D.D.C. 2004) (concluding that the plaintiff “lacks
standing to maintain this action” because its “corporate charter was forfeited” prior to the suit’s
initiation), aff’d, 173 F. App’x 825 (Fed. Cir. 2006), with XP Vehicles, Inc. v. Dep’t of Energy, 118 F.
Supp. 3d 38, 65 (D.D.C. 2015) (holding that dissolved corporate entities still possess Article III
standing).

25
(holding that “[c]apacity to be sued and legal existence are separate and distinct

concepts”), aff’d on other grounds, 996 F.2d 1353 (2d Cir. 1993). Likewise, Rule 9 lists

the two terms independent of one another, indicating that they are “distinct

concepts” with distinct meanings. 7 Wright & Miller § 1292.

Fund Liquidation’s primary response to this argument is to identify various

prior cases in which dissolved corporate entities were not thrown out of court for

lack of standing. But a close inspection of those cases reveals that each of the

corporate entities in question still had some vestige of legal existence at the action’s

inception, even if they lacked the capacity to sue.

Take, for example, Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox

Building Corp., 302 U.S. 120 (1937). After finding that the dissolved entity lacked

7 Fund Liquidation points out that Rule 9(a)(1)(C) does not require the legal existence of a
corporate entity to be pleaded affirmatively in every case, which Fund Liquidation sees as
contrary to the notion that corporate existence is a prerequisite to standing. We disagree. We
read Rule 9 as embodying the goal of the federal rules to “simplif[y]” pleading requirements.
Wright & Miller § 1292. Because questions of legal existence will “rarely [be] in dispute,” it is
reasonable to require a “specific denial” to raise the issue. Id. (internal quotation marks omitted).
Indeed, Fund Liquidation’s interpretation of Rule 9 would be particularly hard to swallow in
cases, unlike this one, where the original plaintiff never existed whatsoever. Because one
elemental precondition for meeting the case-or-controversy requirement is a claimant with
standing, Lujan, 504 U.S. at 560–61, it must be that the non-existence of the supposed claimant is
a problem of constitutional magnitude, see In re 2016 Primary Election, 836 F.3d 584, 587 (6th Cir.
2016) (holding that “[t]here is no plaintiff with standing if there is no plaintiff”); see also LN Mgmt.,
LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 943, 953 (9th Cir. 2020) (same); House v. Mitra QSR
KNE LLC, 796 F. App’x 783, 787 (4th Cir. 2019) (same).

26
capacity, the Supreme Court reversed the lower court’s decision rather than vacate

it for want of jurisdiction. Id. at 127–30. Under Illinois law, however, the dissolved

company still possessed some legal identity when it initiated the reorganization

proceedings at issue in the case. Specifically, Illinois law granted corporations the

right to wind up business for two years after dissolution, which included the right

to prosecute and defend legal claims. Id. at 122–24. If a corporation began a

lawsuit (or was sued) during those two years, it could see the case through to

completion. Id. at 130 (Cardozo, J., dissenting). And, sure enough, the dissolved

entity in Chicago Title & Trust was still litigating a case instituted during that two-

year windup period when it filed its petition for reorganization. Id. at 130–31. So

even though the company lacked capacity, Illinois law still recognized its legal

existence – at least, for certain purposes.

The same is true of the other cases that Fund Liquidation cites on this issue.

In each case, the courts indicated that state law granted the dissolved entities

continued existence even after dissolution so that they could wind up their affairs,

which included seeking liquidation under the bankruptcy code. See Cedar Tide

Corp. v. Chandler’s Cove Inn, Ltd. (In re Cedar Tide Corp.), 859 F.2d 1127, 1131–32 (2d

27
Cir. 1988); In re Superior Boat Works, Inc., 438 B.R. 878, 881–83 (Bankr. N.D.

Miss. 2010).

Here, by contrast, the record before us indicates that the Dissolved Funds

had neither capacity to sue nor legal existence following their dissolution.

According to the affidavit of John Michael Harris (the Banks’ Cayman Islands

counsel), following dissolution, Cayman Islands companies and partnerships “no

longer ha[ve] any legal personality and cannot take any lawful action,” meaning

that any “proceedings brought in [their] name[s] . . . are a nullity.” J. App’x at 391.

And unlike most U.S. jurisdictions, the Cayman Islands do not permit a dissolved

entity to “be restored.” Id. at 390.

While Fund Liquidation submitted its own affidavit on the status of

dissolved Cayman Islands entities, see ECF No. 250-4, Dkt. No. 16-cv-5263, that

affidavit did not contradict the core components of the Harris affidavit that are

relevant here – namely, that the Dissolved Funds have no legal existence. Fund

Liquidation’s affidavit instead focused on the fact that the Dissolved Funds’

assignment survived their dissolution, and that Fund Liquidation, as assignee, has

a right to sue in the Dissolved Funds’ names. Id. at 11. But whether Cayman

Islands law would allow for an assignment and power of attorney to survive

28
dissolution says little about whether the Dissolved Funds have legal existence for

purposes of Article III standing. In light of this record, and because Fund

Liquidation bears the burden of demonstrating that the district court possesses

subject-matter jurisdiction, Carter, 822 F.3d at 56, we conclude that the Dissolved

Funds did not legally exist when the case was filed. 8

And without legal existence, the Dissolved Funds lacked standing to sue.

After all, “[t]he most elemental requirement of adversary litigation is that there be

two or more parties,” meaning that “[a]bsent a plaintiff with legal existence, there

can be no Article III case or controversy.” House v. Mitra QSR KNE LLC, 796 F.

App’x 783, 787 (4th Cir. 2019) (quoting Wright & Miller § 3530); see also LN Mgmt.,

LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 943, 953 (9th Cir. 2020) (concluding that

8 Although the legal existence of a foreign corporate entity is ordinarily “determined by the laws
of the country where it has been created,” Carl Zeiss Stiftung v. VEB Carl Zeiss Jena, 433 F.2d 686,
698 (2d Cir. 1970), a slight choice-of-law wrinkle arises here given that FrontPoint (unlike
Sonterra) was a partnership, not a corporation. As with corporations, it might seem natural to
look to the law of the jurisdiction where the organization was created to determine whether a
partnership has legal existence. But Federal Rule of Civil Procedure 17(b)(3) suggests that a
partnership’s capacity to sue is governed by the law of the state in which the court is located (here,
New York). And if New York law applies to determinations of capacity, it’s possible that the
same is true when determining existence. Fortunately, New York law would itself look to
Cayman Islands law to resolve this issue, meaning that it makes no difference which law governs.
See N.Y. Partner Law § 121-901 (stating that “the laws of the jurisdiction under which a foreign
limited partnership is organized govern its organization and internal affairs and the liability of
its limited partners”); see also Dennis v. JPMorgan Chase & Co., 342 F. Supp. 3d 404, 410
(S.D.N.Y. 2018) (looking to law of the jurisdiction under which the partnership was formed to
determine whether the partnership has capacity to sue); Residential Liquidating Tr. v. Mortg. Invs.
Grp., Inc. (In re Residential Cap., LLC), 527 B.R. 590, 595–96 (Bankr. S.D.N.Y. 2015) (same).

29
it is “obvious” that “the dead lack the capacities that litigants must have to allow

for a true Article III case or controversy”); Hernandez v. Smith, 793 F. App’x 261,

265 (5th Cir. 2019) (plaintiff “did not have standing to sue because she was

deceased”); In re 2016 Primary Election, 836 F.3d 584, 587 (6th Cir. 2016) (“[O]ne

elemental precondition for meeting the case-or-controversy requirement is a

claimant with standing. There is no plaintiff with standing if there is no plaintiff.”

(internal citation omitted)); cf. Billino v. Citibank, N.A., 123 F.3d 723, 725 (2d Cir.

1997) (explaining that it was a jurisdictional error for the appeal to be brought only

in the name of a dead party as a “deceased plaintiff simply no longer has a

cognizable interest in the outcome of litigation”).

Before moving on, one component of this conclusion bears at least some

additional discussion. Specifically, Fund Liquidation suggests that, by declaring

legal existence under state (or, in this case, foreign) law to be a condition of

Article III standing, we are running afoul of the Supreme Court’s directive that

“standing in federal court is a question of federal law, not state law.” Hollingsworth

v. Perry, 570 U.S. 693, 715 (2013); see also Chicago Title & Tr., 302 U.S. at 128

(explaining that a state “cannot keep [a] corporation alive for its own purposes and

deny it life for federal purposes”); Chapman v. Barney, 129 U.S. 677, 682 (1889)

30
(holding that “although it may be authorized by the laws of the state of New York

to bring suit in the name of its president, that fact cannot give the [plaintiff

partnership] power, by that name, to sue in a federal court”). Undoubtedly, there

are limits on how state law can influence issues of constitutional standing. But,

despite those limits, state law is not irrelevant simply because standing is at issue.

Federal law sets the parameters on what is necessary to possess Article III

standing, and while state law can neither enlarge nor diminish those requirements,

it can supply the answers to certain antecedent questions relevant to whether those

federal requirements are satisfied. Indeed, this sort of reliance on state law

happens all the time.

For instance, state law often defines the legal relationships between people

and things, which are necessary to understanding whether a particular plaintiff

has suffered an injury in fact. A simple example of this is property ownership,

which is both an issue of state law and often a foundational standing requirement

in a federal takings case. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t

Prot., 560 U.S. 702, 729 n.10 (2010) (explaining that “the claim here is ripe insofar

as Article III standing is concerned, since (accepting petitioner’s version of Florida

law as true) petitioner has been deprived of property”); U.S. Olympic Comm. v.

31
Intelicense Corp., S.A., 737 F.2d 263, 268 (2d Cir. 1984) (holding that “[o]nly the

owner of an interest in property at the time of the alleged taking has standing to

assert that a taking has occurred”).

But that’s just one example; courts rely on state law in a variety of other

contexts to assess whether a plaintiff satisfies Article III. See, e.g., Va. House of

Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (looking to Virginia state law

to determine whether the state legislature had the authority to litigate on the

State’s behalf); Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1158–60 (2d Cir.

1994) (looking to state law concerning constructive trusts to resolve an issue of

standing); Amrhein v. eClinical Works, LLC, 954 F.3d 328, 334 (1st Cir. 2020)

(recognizing that “Article III can be satisfied solely by virtue of an invasion of a

recognized state-law right” (internal quotation marks omitted)); Scanlan v.

Eisenberg, 669 F.3d 838, 842 (7th Cir. 2012) (explaining that “the nature and extent

of [the plaintiff’s] interest[,] . . . and therefore[] whether that interest can form the

basis of a federal suit, depend[s] on [state] law” (internal citations omitted)); FMC

Corp. v. Boesky, 852 F.2d 981, 993 (7th Cir. 1988) (holding that “[p]roperly pleaded

violations of state-created legal rights . . . must suffice to satisfy Article III’s injury

requirement”).

32
 So, in a case like this one, federal law sets the ground rule that a plaintiff

corporation or partnership must have legal existence to have constitutional

standing. Whether a particular corporation or partnership satisfies that

requirement, however, turns on an examination of state law. And here, Cayman

Islands law is clear: the Dissolved Funds had no legal existence when the

complaint was filed. As a result, the Dissolved Funds lacked Article III standing

when the case was initiated in their names. The next question, then, is what to

make of that fact.

B. Fund Liquidation Nonetheless Satisfied Article III

We hold today that Article III is satisfied so long as a party with standing to

prosecute the specific claim in question exists at the time the pleading is filed. If

that party (the real party in interest) is not named in the complaint, then it must

ratify, join, or be substituted into the action within a reasonable time. Only if the

real party in interest either fails to materialize or lacks standing itself should the

case be dismissed for want of subject-matter jurisdiction.

Admittedly, this is not a view adopted by many courts. The far more

common view is the so-called “nullity doctrine” exemplified by Zurich Insurance

Co. v. Logitrans, Inc., 297 F.3d 528 (6th Cir. 2002), which says that a case initiated in

33
the name of a plaintiff that lacks standing is an incurable nullity. But, for the

reasons explained below, we conclude that neither Article III nor our Court’s past

precedent requires us to adopt this doctrine. And because “the concerns

animating [Article III standing] are absent” where a real party in interest exists

and is willing to join an action, Cortlandt St. Recovery Corp. v. Hellas Telecomms.

S.à.r.l., 790 F.3d 411, 427 (2d Cir. 2015) (Sack, J., concurring), we conclude that

Article III is satisfied in this case.

1. Our Precedent Does Not Require Application of the Nullity
Doctrine

Our court has touched on the nullity doctrine in only a few published

decisions. The natural starting point is Cortlandt Street Recovery Corp. v. Hellas

Telecommunications S.à.r.l., 790 F.3d 411 (2d Cir. 2015). There, the district court

determined that an action instituted by a plaintiff that lacked standing was a

nullity at inception, and so could not be salvaged through Rule 17. Id. at 422–23.

Ultimately, we resolved the case without deciding that question, but, in a

concurring opinion, Judge Sack (also the author of the unanimous panel opinion)

explained that he would reject the nullity doctrine as it is “highly technical [and]

without [a] meaningful purpose.” Id. at 427 (Sack, J., concurring) (internal

quotation marks omitted).

34
 Despite Cortlandt’s refusal to decide this issue, subsequent panels have twice

cited Cortlandt in support of dicta suggesting that the nullity doctrine is the law of

the Circuit. See Klein, 906 F.3d at 227 n.7; DeKalb Cnty. Pension Fund v. Transocean

Ltd., 817 F.3d 393, 412 & n.121 (2d Cir. 2016). The explanation for this strange leap

in law is simple: each of those opinions mistakenly quotes language from Cortlandt

as if it were part of Cortlandt’s holding, when, in fact, it was merely a summary of

the district court’s reasoning that the panel in Cortlandt expressly refused to adopt.

Compare Klein, 906 F.3d at 227 n.7, and DeKalb, 817 F.3d at 412 n.121, with Cortlandt,

790 F.3d at 423, and id. at 425–27 (Sack, J., concurring). 9 As a result, none of these

cases constitutes binding precedent on the subject.

Interestingly, the closest that we have come to adopting the nullity doctrine

appears to have been in Isthmian Lines, Inc. v. Rosling, 360 F.2d 926 (2d Cir. 1966), a

case that Cortlandt (and the parties here) did not address. That case was a wrongful

death suit brought in the name of a widow, both in her individual capacity and in

her capacity as administrator of her husband’s estate. As it turned out, the widow

had herself died before the complaint was filed, and it was her daughter who was

actually the administrator of the decedent’s estate. We ultimately permitted the

9Our non-precedential summary order in Valdin Investments is subject to the same criticism. See
651 F. App’x at 7.

35
daughter to amend the complaint to name herself as administrator, but only

because the estate (unlike the widow) was “alive” at the time the complaint was

filed:

[The pleading] was captioned in the alleged name of the
Administratrix of the Estate of Charles Richard
Washington as well as herself “individually,” although
this latter status was a nullity because of her prior
decease. The respondent thus had notice that the
“Estate” was suing and notice of the facts upon which the
claim was based. Although “a proceeding begun in the
name of a deceased plaintiff is a nullity” (Karrick v.
Wetmore, 22 App.D.C. 487 [(D.C. Cir. 1903]), the Estate
here was not deceased. . . . [T]he situation was that of an
Estate suing which did not have a then-appointed
administrator.

Id. at 927–28.

To be sure, this opinion offers some support for the nullity doctrine. But it

is not binding on us: the nullity point was mere dicta because the estate’s standing

to bring the claim independently supported the holding. And when assessed on

its own terms, Isthmian Lines is not particularly persuasive as it effectively begins

and ends its nullity analysis with a quote from Karrick v. Wetmore, a D.C. Circuit

decision from 1903. Karrick, in turn, relied primarily on state court and English

court opinions, and the Supreme Court’s decision in Harter v. Twohig, 158 U.S. 448,

36
454 (1895), which itself focused on Nebraska state law, not the demands of

Article III. See Karrick, 22 App. D.C. at 493.

Thus, whether to adopt the nullity doctrine is still an open question in our

Circuit.

2. Article III Does Not Require the Nullity Doctrine

The central conceit of the nullity doctrine is that an action commenced in the

name of a plaintiff who lacks Article III standing is rendered an incurable nullity

even where a real party in interest both has standing and is willing to join the suit.

That foundational view is immediately suspect given its tension with how

pleading requirements have evolved over time.

At early common law, courts of law recognized only those plaintiffs whose

legal rights had been affected by the act of the defendant, a group into which courts

determined assignees did not fall. See Charles E. Clark & Robert M. Hutchins, The

Real Party in Interest, 34 Yale L.J. 259, 259–60 (1925) (hereinafter, “Clark, Real Party

in Interest”); Wright & Miller § 1545. Perhaps because cases had to be brought in

the name of the nominal plaintiff, identifying the party for whose “use” a case was

brought was not necessary. See Clarksons v. Doddridge, 55 Va. 42, 46 (1857) (“It is

usual, when an action is brought in the name of one person for the use of another,

37
to state the fact . . . . But this is not necessary. The statement is no material part of

the pleadings.”); see also United States v. Abeel, 174 F. 12, 19 (5th Cir. 1909) (”[A] suit

for the breach can[] be maintained by the United States without a statement that

the suit is for the use of some one named in the petition.”); Boston El. Ry. Co. v.

Grace & Hyde Co., 112 F. 279, 284 (1st Cir. 1901) (“[T]he expression of [] use may be

disregarded as surplusage. . . . [S]uch a phrase has no force to make an issue

different from what it would have been if the phrase had been left out.”); Edson R.

Sunderland, Cases on Procedure, Annotated: Common Law Pleading 731 n.77

(Callaghan & Co., 1914) (commenting, in reference to the Supreme Court’s

decision in Welch v. Mandeville, 14 U.S. (1 Wheat.) 233 (1816), that the “[r]ecord

need not disclose real plaintiff” (italics omitted)).

Eventually, jurisdictions began to abandon this approach in favor of “code

pleading.” Clark, Real Party in Interest at 259. Under this new pleading

formulation, cases could “be prosecuted in the name of the real party in interest,”

which was defined to be the assignee and not the assignor. Id. at 259, 264. But

jurisdictions split on whether proceeding in the name of the assignor was still

permitted. In some, only the assignee (that is, the real party interest) could bring

suit. Id. at 261 (explaining that the “[t]he express language of the [New York] Code

38
was that [nearly] every action must be prosecuted in the name of the real party in

interest” (internal quotation marks and footnote omitted)); id. at 266 (noting that

“[t]he real party in interest provision is . . . properly construed in most states as

imperative; the assignee and he alone may sue”). In others, it was up to the real

party in interest to choose between suing in its own name or in the name of the

assignor. Id. at 264–66; see also Carozza v. Boxley, 203 F. 673, 677 (4th Cir. 1913)

(noting that “suit may be brought in one of three ways – in the name of the original

obligee or payee, in his name for the use of the assignee, or in the name of the

assignee alone”); Roland F. Johnson, Equity – Assignment of Choses In Action – Suit

In Whose Name, 17 Tex. L. Rev. 183, 185 (1939) (explaining that in Merlin v. Manning,

2 Tex. 351 (1847), the Texas Supreme Court made clear that an “assignee could sue

either in his own name or in the name of his assignor” (emphasis added)). In

adopting Federal Rule of Civil Procedure 17, Congress sided with the former

approach, clarifying that cases had to be prosecuted in the name of the real party

in interest, not the nominal plaintiff. See Fed. R. Civ. P. 17.

This evolution of pleading practices suggests two things. First, the rule

concerning which party’s name a case must be prosecuted under (either the

nominal plaintiff or the real party in interest) is non-jurisdictional. After all, if it

39
were jurisdictional, it’s not clear how it could be changed over time without

offending the Constitution. Moreover, treating this as a jurisdictional issue would

be somewhat inconsistent with the directive in Rule 17(a)(3) that a case cannot be

dismissed “until, after an objection, a reasonable time has been allowed for the real

party in interest to ratify, join, or be substituted into the action.”

Second, if we can alter the party in whose name a case must be prosecuted

without offending Article III, it stands to reason that failing to initially name the

correct party is not itself a constitutional problem. In other words, there appears

to be no constitutional magic behind whether the name of a nominal plaintiff or a

real party in interest is initially put in the caption of a pleading. Article III would

therefore seem to be satisfied so long as the real party in interest is willing to join

the case and has had standing since the case’s inception. When viewed this way,

filing a complaint in the name of a deceased or non-existent nominal plaintiff is

akin to an error in the complaint’s allegations of jurisdiction. And it is well-

understood that a plaintiff may cure defective jurisdictional allegations, unlike

defective jurisdiction itself, through amended pleadings. See Rockwell Int’l Corp. v.

United States, 549 U.S. 457, 473 (2007) (distinguishing between “[t]he state of things

and the originally alleged state of things”); Pressroom Unions-Printers League Income

40
Sec. Fund. v. Cont’l Assur. Co., 700 F.2d 889, 893 (2d Cir. 1983) (explaining that 28

U.S.C. § 1653 “allows amendment only of defective allegations of jurisdiction” but

“does not provide a remedy for defective jurisdiction itself” (internal quotation

marks omitted)).

The thornier question is whether a complaint filed in the name of a non-

existent entity, on behalf of an unidentified real party in interest, meets the

requirement that “the party invoking jurisdiction ha[ve] the requisite stake in the

outcome when the suit [i]s filed.” Davis v. FEC, 554 U.S. 724, 734 (2008); see also

Lujan, 504 U.S. at 570 n.5 (explaining that “standing is to be determined as of the

commencement of suit”). Although it may not seem immediately intuitive, we

conclude that the answer is “yes.”

The real party in interest is the party with the legal title to the claim asserted

and is the party with the stake in the controversy that is being used to invoke the

court’s jurisdiction. Why, then, should jurisdiction to hear the controversy turn

on whether the nominal plaintiff has standing? That would be nonsensical.

Indeed, in other jurisdictional contexts, we often ignore nominal plaintiffs and

look only to the party with a real interest in the controversy. See, e.g., St. Paul Fire

& Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80–81 (2d Cir. 2005)

41
(recognizing that nominal parties are often ignored for diversity purposes and

explaining that this rule has a “rough symmetry” to the real-party-in-interest

concept embodied by Rule 17(a) (internal quotation marks omitted)). And since

Rule 17(a)(3) is clear that joinder of the real party in interest relates back to the

“original[] commence[ment]” of the suit, this approach is consistent with the

directive that standing must exist at the case’s inception.

Further supporting this view is the fact that joining an assignee does not

“substitute a new cause of action over which there is subject-matter jurisdiction

for one in which there is not.” Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d

157, 161 (2d Cir. 1998). Rather, a real party in interest who has been assigned a

claim is the functional equivalent of the original plaintiff – an assignee “step[s] into

the shoes of the assignor.” Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd.,

726 F.3d 62, 75 n.12 (2d. Cir. 2013) (internal quotation marks omitted). So even

though Fund Liquidation is replacing the Dissolved Funds as the named party, it

is prosecuting the Dissolved Funds’ claims. See In re Ace Sec. Corp. RMBS Litig.,

No. 13-cv-1869 (AJN), 2015 WL 1408837, at *7 (S.D.N.Y. Mar. 26, 2015) (“Here,

there is neither a new cause of action nor a new party. Nor would the proposed

changes . . . cause the amended complaint to have the characteristics of a new

42
lawsuit. The Trustee is the functional equivalent of the Trust for the purpose of

conducting this litigation.” (internal quotation marks omitted)). 10

In short, the boundaries of Article III are not as rigid as the Banks suggest.

Indeed, while Fund Liquidation’s presence and standing ensured that there was a

live controversy when the action was initiated, numerous courts have made clear

that, in certain instances, subject-matter jurisdiction can even be obtained after a

case’s initiation and given retroactive effect through procedural rules.

Diversity jurisdiction is one such example. Even if complete diversity – and

thus jurisdiction – is lacking at a case’s inception, rather than dismiss the case as a

nullity, the court may drop any dispensable parties that are obnoxious to its

jurisdiction. See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 574 (2004); see

also E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 163 (2d Cir. 2001)

(explaining that “once subject matter jurisdiction is ‘cured’ by an amendment

[speaking about a diversity defect], courts regularly have treated the defect as

10In this way, the substitution of an assignee into an action is not like the situation discussed in
the Advisory Committee Note to the 1966 amendment to Rule 17, in which a lawyer files an action
in the name of a fictitious person “in the hope that at a later time the attorney filing the action
may substitute the real name of the real personal representative of a real victim, and have the
benefit of suspension of the limitation period.” Fed. R. Civ. P. 17 Advisory Committee’s note to
1966 amendment. Likewise, the case before us today differs from a situation like Zurich Insurance,
in which the originally named plaintiff never possessed a claim against the defendant. See 297
F.3d at 532.

43
having been eliminated from the outset of the action”). Cases involving Federal

Rule of Civil Procedure 15(d) provide additional examples. While we have never

taken a position on the issue (and do not do so here), other circuits have declared

that “events occurring after the filing of a complaint may cure a jurisdictional

defect that existed at the time of initial filing.” Saleh v. Sulka Trading Ltd., 957 F.3d

348, 354 & n.7 (2d Cir. 2020) (collecting cases). Even the Supreme Court has

suggested that Rule 15(d) may be used in this fashion. See Mathews v. Diaz, 426

U.S. 67, 75 & n.8 (1976). 11

Of course, the cases cited above concerned sub-constitutional jurisdictional

problems. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 n.1 (1989)

(acknowledging that complete diversity is a statutory, not constitutional,

requirement); Mathews, 426 U.S. at 75 (discussing a statutory condition on

jurisdiction). And at least one other Circuit has suggested, albeit without

explanation, that whether a jurisdictional defect is of constitutional character

might be relevant to determining if it can be cured retroactively. See Yan v. ReWalk

11In Mathews, a Medicare applicant filed his Part B application only after he was joined as a
plaintiff in an amended complaint. Although 42 U.S.C. § 405(g) made filing such an application
a “nonwaivable condition of jurisdiction,” the Supreme Court stated that it had “little difficulty”
in holding that the district court had jurisdiction over the plaintiff’s claim. 426 U.S. at 75. Citing
Rule 15(d), the Court explained that “[a] supplemental complaint in the [d]istrict [c]ourt would
have eliminated this jurisdictional issue.” Id. at 75 & n.8.

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Robotics Ltd., 973 F.3d 22, 39 n.6 (1st Cir. 2020) (noting that two of the three panel

members “limit their joining in this portion of the opinion on the basis that the

standing defect in this case may be viewed as a lack of statutory standing”). But

there are some examples of true-blue constitutional defects being cured through

procedural rules after a complaint was filed.

For instance, in Northstar Financial Advisors Inc. v. Schwab Investments, the

plaintiff filed a class action lawsuit on behalf of investors without owning any

shares in the investment fund that it was suing or having obtained an assignment

from those investors, meaning that the plaintiff had not suffered an injury when it

filed suit. 779 F.3d 1036, 1043 (9th Cir. 2015). It was not until four months later

that the plaintiff secured an assignment. Id. at 1043–44. Nevertheless, the district

court permitted the plaintiff to file a supplemental pleading under Rule 15(d). Id.

at 1044–45. The Ninth Circuit affirmed, concluding that requiring the plaintiff to

start a new case would be needlessly formal. Id. at 1044–48. Other circuits have

reached similar conclusions. See Scahill v. District of Columbia, 909 F.3d 1177, 1184

(D.C. Cir. 2018) (holding that “a plaintiff may cure a standing defect under

Article III through an amended pleading alleging facts that arose after filing the

original complaint”); Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1337 (Fed.

45
Cir. 2008) (concluding that the status of the plaintiff’s Article III standing should

be decided based on the allegations in the amended complaint, included

allegations that concerned events that occurred after the case was initiated).

The Banks’ primary authority in favor of the nullity doctrine – the Fourth

Circuit’s unpublished decision in House v. Mitra QSR KNE LLC – brings little to the

table. To start, House posits that “[o]nly an actual and live plaintiff can assure that

concrete adverseness which sharpens the presentation of issues upon which the

court so largely depends for illumination of difficult questions.” 796 F. App’x

at 787 (internal quotation marks and alterations omitted). But that role is filled

whenever there is a real party in interest ready and willing to join the action.

Next, House points out that Rule 17 permits a real party in interest to

substitute into “an action,” id. at 790 (quoting Fed. R. Civ. P. 17(a)(3)), and reasons

that a case instituted by a non-existent party is not an action at all. But what the

Federal Rules call an “action” is something that exists independent of subject-

matter jurisdiction. In fact, Rule 12(h)(3) states that a court “must dismiss the

action” if it determines that it lacks subject-matter jurisdiction. Fed. R. Civ.

P. 12(h)(3) (emphasis added). And Rule 3 says that “[a] civil action is commenced

by filing a complaint with the court,” an event that occurs well before any decision

46
over subject-matter jurisdiction is made. Fed. R. Civ. P. 3. House’s analysis is also

in tension with the “wide and flexible content given to the concept of action under

the [federal] rules.” Hackner v. Guar. Tr. Co. of N.Y., 117 F.2d 95, 98 (2d Cir. 1941)

(Clark, J.). 12

It should also be noted that the approach we adopt today will not result in

unchecked abusive practices by plaintiffs. Rule 17 permits courts to deny joinder

of a real party in interest where the motion is made “in bad faith or in an effort to

deceive or prejudice the defendants,” or where granting the motion would

“otherwise result in unfairness to defendants.” Klein, 906 F.3d at 226 (internal

quotation marks omitted). Thus, if a court concludes that the original misnaming

of the nominal plaintiff was done for nefarious reasons, the court retains discretion

to dismiss the suit.

So, because “the concerns animating a constitutional principle are absent”

where an assignee with standing seeks to join an action under Rule 17, “practical

considerations may ultimately prevail.” Cortlandt, 790 F.3d at 427 (Sack, J.,

concurring). And it is plainly the more practical approach to permit parties to

circumvent the needless formality and expense of instituting a new action simply

12Judge Clark “was a principal architect of the Federal Rules of Civil Procedure.” Zahn v. Int’l
Paper Co., 414 U.S. 291, 297 (1973).

47
to correct a technical error in the original pleading’s caption. See id.; Link Aviation,

Inc. v. Downs, 325 F.2d 613, 615 (D.C. Cir. 1963) (“Any other rule would be highly

technical without meaningful purpose.”); cf. Scahill, 909 F.3d at 1184 (reaching the

same conclusion in the context of Rule 15(d)); Northstar Fin. Advisors 779 F.3d 1044–

48 (same). It is perhaps for precisely this reason that several authorities have either

implicitly or explicitly rejected the nullity doctrine. See Cortlandt, 790 F.3d at 425–

27 (Sack, J., concurring); Esposito v. United States, 368 F.3d 1271, 1276–78 (10th Cir.

2004) (permitting an estate to join a case through Rule 17 even though the case was

initiated in the name of a deceased plaintiff); see also Wright & Miller § 3531 n.61

(characterizing the nullity doctrine as “particularly troubling”). 13

As a result, we conclude that Article III is satisfied by Fund Liquidation’s

standing to bring suit and willingness to join the action under Rule 17. 14

13Though the Ninth Circuit recently agreed with the Fourth Circuit that a deceased plaintiff lacks
Article III standing, the Ninth Circuit declined to decide whether Article III could nonetheless be
satisfied by the existence of a separate real party in interest. See LN Mgmt., 957 F.3d at 955
(declining to “rule on the tricky substitution questions that divided the Fifth Circuit . . . and the
Fourth in House, on the one hand, from the Tenth in Esposito, on the other”).
14Although it is possible that Fund Liquidation’s third amended complaint exceeded the sort of
“merely formal” amendment permitted by Rule 17 alone, see Cortlandt, 790 F.3d at 424 (internal
quotation marks omitted); Dennis, 342 F. Supp. 3d at 416–17, the Banks have not raised that point,
so we need not consider it. And even if they had, there is precedent for permitting more
substantive amendments through a motion made jointly under both Rule 15 and Rule 17. See
Cortlandt, 790 F.3d at 424–25 (“We cannot rule out the possibility that Cortlandt might have
avoided these challenging procedural pitfalls through a request for leave to obtain a valid

48
C. The Case on Remand

Having concluded that the Dissolved Funds’ lack of standing did not render

this action an incurable nullity, we agree with Fund Liquidation that the case

should be remanded to the district court for further proceedings. Notably, this

does not require us to resolve whether Fund Liquidation received a valid

assignment from FrontPoint because the district court already concluded that

Fund Liquidation received such an assignment from Sonterra. 15 See FrontPoint

Asian Event Driven Fund, 2018 WL 4830087, at *11. And although Sonterra’s claims

were separately dismissed based on the fund not being an efficient enforcer of

antitrust laws, that is a non-jurisdictional dismissal and so a valid case or

controversy still exists. 16 See Meijer, Inc. v. Ferring B.V. (In re DDAVP Direct

assignment under some other rule of civil procedure. It did not. It has relied upon only Rule 17
in the present appeal.”); see also Nat’l Credit Union Admin. Bd. v. Deutsche Bank Nat’l Tr. Co., 410 F.
Supp. 3d 662, 676–78 (S.D.N.Y. 2019).
15 Indeed, the agreement between Sonterra and Fund Liquidation stated that Sonterra was
assigning “any and all claims . . . related to the ownership of, or any transaction in, any [t]raded
[s]ecurities,” including claims that could be brought in “any future class action lawsuit.” J. App’x
at 459 (emphasis added). By contrast, FrontPoint assigned only those claims arising out of “any
future securities class action or lawsuit.” J. App’x at 480 (emphasis added). And it was this
limitation to securities class actions that caused the district court to conclude that FrontPoint’s
assignment was ineffective. See Fund Liquidation Holdings, 399 F. Supp. 3d at 102–03
(distinguishing between securities class actions and antitrust class actions involving securities).
16To the extent that Sonterra’s status as an efficient antitrust enforcer becomes relevant at some
later date in the case, the parties appear to agree that the decision in In re LIBOR-Based Financial
Instruments Antitrust Litigation, No. 17-1569 (2d Cir.), will likely resolve the issue.

49
Purchaser Antitrust Litig.), 585 F.3d 677, 688 (2d Cir. 2009) (distinguishing Article III

standing from antitrust standing).

On remand, then, the district court should reconsider two issues in light of

our opinion. First, now that its jurisdiction over the case is clear, the district court

should revisit whether to approve the settlement agreements signed by several of

the defendants.

Second, the district court should reconsider Fund Liquidation’s motion to

file its proposed fourth amended complaint, which would add the Moon Funds as

new representative plaintiffs. Of course, the district court alternatively held that

the Moon Funds’ claims were untimely as they were no longer subject to equitable

tolling under American Pipe. See Fund Liquidation Holdings, 399 F. Supp. 3d at 104–

05. That conclusion, however, was based on an overly expansive reading of the

Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018).

In China Agritech, the Supreme Court explained that “American Pipe tolls the

statute of limitations during the pendency of a putative class action, allowing

unnamed class members to join the action individually or file individual claims if

the class fails.” Id. at 1804. “But American Pipe does not permit the maintenance

of a follow-on class action past expiration of the statute of limitations.” Id. While

50
the district court (and the Banks) see that language as fatal to any amendment that

would add the Moon Funds as representative plaintiffs, it says nothing of the sort.

The Supreme Court focused its analysis on follow-on class actions. Id. Nothing in

China Agritech purports to say that equitable tolling does not apply to new class

representatives joined within the same class action. Indeed, the Seventh Circuit

recently reached this precise conclusion:

[Defendant] would read China Agritech much more
broadly to prohibit any addition or substitution of a new
class representative within the original class action after
the statute of limitations period would have run, but for
American Pipe tolling. We see no hint in the China
Agritech opinion or its reasoning that would support this
proposed extension. American Pipe tolling is intended to
promote efficiency and economy in litigation.
Prohibiting its use within the original class action to add
new class representatives, whether because they would
be better representatives, because class definitions are
modified, because subclasses are needed, or for any other
case-management reason, would arbitrarily – even
randomly – undermine those goals of efficiency and
economy. . . . Plaintiffs here sought only to rearrange the
seating chart within a single, ongoing action. What they
proposed amounted to an ordinary pleading
amendment governed by Federal Rule of Civil
Procedure 15.

Carpenters Pension Tr. Fund for N. Cal. v. Allstate Corp. (In re Allstate Corp. Sec. Litig.),

966 F.3d 595, 615–16 (7th Cir. 2020) (internal citations omitted).

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 Accordingly, so long as the amendment to add the Moon Funds as class

representatives satisfies the requirements of Federal Rule of Civil

Procedure 15(c)(1)(B), see id. at 616, and so long as the proposed fourth amended

complaint otherwise plausibly states a claim on which relief can be granted, the

district court should grant Fund Liquidation’s motion to amend. 17

V. Conclusion

For the foregoing reasons, we VACATE the judgment of the district court

and REMAND the case for further proceedings. Should any future appeal ensue

related to whether Fund Liquidation may file its proposed fourth amended

complaint, or whether that fourth amended complaint states a claim on which

relief can be granted, any party may restore our jurisdiction pursuant to the

procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in

which event the appeal will be referred to this panel.

17The district court may also consider the argument raised by the ING entities – ING Groep N.V.,
ING Bank N.V., and ING Capital Markets LLC – that the Moon Funds’ SOR-related claims should
not relate back against them as “no complaint filed before December 2018 alleged that ING
engaged in SOR panel-related conduct or was on the SOR panel.” Banks Br. at 55–56.

52