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Weil Wins Tenth Circuit Victory for Credit Suisse in Billion-Dollar Real Estate Loan Dispute

On February 3, 2017, Weil secured a major victory for Credit Suisse AG and several of its subsidiaries when the Tenth Circuit affirmed a Colorado federal court’s dismissal of a case in its entirety against Credit Suisse and its co-defendant Cushman & Wakefield.

Plaintiff was the developer and principal shareholder of the Yellowstone Club, an exclusive private ski club in Montana. In 2005, Credit Suisse made a loan to the Club. When the economy crashed in 2008, the Club was unable to sell property and therefore, unable to repay its obligations. Plaintiff subsequently lost control of the Club in connection with his marital settlement. In this suit, Plaintiff accused Credit Suisse of causing the Club’s failure and of using a third party to collect against Plaintiff in circumvention of a non-recourse provision in the loan agreement. Plaintiff asserted nine claims and sought over a billion dollars in alleged damages.

The Tenth Circuit held that the District Court properly dismissed the majority of the Plaintiff’s claims at the motion to dismiss stage and properly granted Credit Suisse summary judgment on the two remaining claims. Specifically, the Tenth Circuit held that Plaintiff’s alleged injuries were derivative of the Club’s; Plaintiff’s breach of contract claim was barred by an exculpation clause in the Club’s bankruptcy plan of reorganization; collateral estoppel precluded Plaintiff from re-arguing that Credit Suisse controlled the third party that sought to collect against Plaintiff; and Plaintiff failed to show that Credit Suisse caused his alleged injuries. The Tenth Circuit’s opinion was issued following oral arguments before a panel that included the Honorable Neil Gorsuch, now a nominee to the U.S. Supreme Court, although he did not participate in the order and judgment, which was issued after his nomination.

The Weil team included partners David Lender and Gregory Silbert, counsel Kevin Meade and associate Arielle Gordon in the New York office, and associates John O’Connor and Olivia Miller in the Dallas office.