1023-00002 · Ironside Capital Management LP · Client Correspondence

client-update-mtd-analysis.docx DOCUMENT Litigation

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CALDERWOOD & HARKNESS LLP Counselors at Law 51 West 52nd Street, 40th Floor New York, New York 10019

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

MEMORANDUM

March 7, 2025

TO:

Elliot Brennan, Co-Founder, Managing Partner & Chief Investment Officer Marguerite Dao, Co-Founder, President & Chief Operating Officer Katherine Lim, General Counsel & Chief Compliance Officer

Ironside Capital Management LP 680 Park Avenue, 34th Floor New York, New York 10065

FROM:

Samuel Eklund, Responsible Partner Linda Osei, Billing Partner

Calderwood & Harkness LLP 51 West 52nd Street, 40th Floor New York, New York 10019

RE:

Ironside Capital Management LP v. Vantor Holdings Corp., Index No. 650312/2025, New York Supreme Court, Commercial Division, New York County — Analysis of Defendant's Motion to Dismiss Filed February 28, 2025

THIS MEMORANDUM CONSTITUTES A PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION AND IS PROTECTED ATTORNEY WORK PRODUCT. IT IS PREPARED SOLELY FOR THE USE OF THE NAMED RECIPIENTS IN CONNECTION WITH THE ABOVE-REFERENCED MATTER. DO NOT FORWARD, COPY, OR DISTRIBUTE WITHOUT PRIOR WRITTEN AUTHORIZATION OF CALDERWOOD & HARKNESS LLP.

I. EXECUTIVE SUMMARY

On February 28, 2025, Vantor Holdings Corp. ("Vantor" or "Defendant"), through its counsel Whitfield, Dane & Corcoran LLP ("WDC"), led by Gregory Dane, filed a pre-answer Motion to Dismiss the Verified Complaint pursuant to CPLR § 3211(a)(1) (defense based on documentary evidence) and § 3211(a)(7) (failure to state a cause of action). The motion is now assigned to the Honorable Richard Torrance, J.S.C., of the Commercial Division, New York County. Oral argument has been scheduled for April 14, 2025.

Vantor's motion advances five principal arguments in support of the dismissal of some or all of Ironside Capital Management LP's ("Ironside" or "Plaintiff") seven causes of action, which include: (1) common-law fraud; (2) fraudulent concealment; (3) negligent misrepresentation; (4) breach of contract; (5) breach of fiduciary duty; (6) aiding and abetting fraud; and (7) unjust enrichment. The five grounds, discussed in detail below, attack the fraud claims as duplicative of the contract claim, challenge the fiduciary duty claim on the basis that Vantor is a mere contractual service provider, invoke the contractual liability cap contained in Fund Administration Agreement ("FAA") § 9.3, contend that unjust enrichment is precluded by the existence of an express contract, and argue that the economic loss doctrine bars all tort claims.

Our overall assessment is that Vantor's motion is substantially unlikely to succeed in dismissing the core claims — breach of contract and common-law fraud — which form the backbone of Ironside's case and carry the vast majority of the approximately $287 million in direct damages. The claims at greatest risk are the breach of fiduciary duty cause of action and the unjust enrichment cause of action, though even if those claims are dismissed, the practical impact on the case is limited, as the same universe of damages is recoverable through the surviving claims. None of Vantor's arguments meaningfully threatens the viability of the case as a whole.

Calderwood & Harkness's opposition brief is due March 21, 2025, and the litigation team — including Senior Associate Yuki Nakamura and Associate Carlos Espinoza — is already engaged in drafting the memorandum of law in opposition and the supporting affirmation. This memorandum provides a detailed ground-by-ground analysis of Vantor's arguments, our risk assessments, and our recommended opposition strategy. We respectfully request that the Ironside team review this analysis and provide any additional factual context or documents that may strengthen the opposition, as detailed in Section VIII below.

II. BACKGROUND AND PROCEDURAL POSTURE

As the Ironside team is aware, Ironside filed the Verified Complaint in this action on January 21, 2025, asserting seven causes of action arising from Vantor's systematic misvaluation of forty-seven (47) illiquid credit and structured-product positions across three Ironside-managed funds: (i) Ironside Credit Opportunities Fund LP ("Fund I"); (ii) Ironside Structured Alpha Fund LP ("Fund II"); and (iii) Ironside Special Situations Fund LP ("Fund III"). The misvaluations span eleven consecutive quarters, from Q1 2021 through Q3 2023, and resulted in aggregate losses to Ironside and its investors of approximately $287 million.

The Complaint was verified by Elliot Brennan in his capacity as Co-Founder, Managing Partner, and Chief Investment Officer of Ironside. The Complaint seeks: (a) $287 million in compensatory damages reflecting the aggregate losses attributable to the inflated net asset values ("NAVs"); (b) $50 million in consequential damages, including management fee disgorgement, incentive allocation clawbacks, and reputational harm; (c) punitive damages on the First and Second Causes of Action (fraud and fraudulent concealment); and (d) attorneys' fees and costs pursuant to FAA § 9.4.

The seven causes of action asserted in the Complaint are as follows:

1. First Cause of Action — Common-Law Fraud: Vantor made material misrepresentations of fact in delivering inflated valuations that it knew to be false, with the intent that Ironside would rely upon them in calculating NAVs, and Ironside did justifiably rely thereon to its detriment.

2. Second Cause of Action — Fraudulent Concealment: Vantor concealed material facts — including the use of stale broker quotes, undisclosed internal "model adjustments," and internal communications documenting knowledge that marks were inflated — with the intent to deceive Ironside.

3. Third Cause of Action — Negligent Misrepresentation: Vantor, as a professional fund administrator with a special relationship with Ironside, owed a duty of care in providing accurate valuations, negligently misrepresented the fair value of the subject positions, and Ironside justifiably relied thereon.

4. Fourth Cause of Action — Breach of Contract: Vantor materially breached FAA §§ 3.1 (Standard of Care) and 4.2 (Valuation Services) by failing to perform valuations in accordance with GAAP, the Ironside Valuation Policy v.3.2, and the standard of care of a reasonably prudent professional fund administrator.

5. Fifth Cause of Action — Breach of Fiduciary Duty: Vantor, by virtue of its discretionary authority over asset pricing and its role as an independent check on portfolio valuations, owed fiduciary duties to Ironside, which it breached through the conduct described herein.

6. Sixth Cause of Action — Aiding and Abetting Fraud: Vantor, through its corporate officers Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations), knowingly aided and abetted the fraudulent misvaluation scheme.

7. Seventh Cause of Action — Unjust Enrichment: Vantor was unjustly enriched by retaining approximately $9.28 million in fees paid over the life of the FAA (June 2017 through September 2023) for services that were fraudulently and negligently performed.

With respect to the procedural posture, Vantor filed its Motion to Dismiss on February 28, 2025, supported by a Memorandum of Law (approximately 38 pages) and a Declaration of Gregory Dane, Esq. attaching excerpts of the FAA, the First Amendment to the FAA dated March 1, 2019, and the Second Amendment to the FAA dated January 15, 2021. Vantor's memorandum of law was filed under the caption of a pre-answer motion pursuant to CPLR § 3211(a)(1) and (a)(7).

The current procedural timeline is as follows:

Our team is currently engaged in preparing the opposition brief and supporting materials, which will include a Memorandum of Law in Opposition and an Attorney Affirmation of Yuki Nakamura, with fourteen (14) documentary exhibits. We address each of Vantor's arguments in the sections that follow.

III. SUMMARY OF VANTOR'S FIVE MOTION TO DISMISS ARGUMENTS

Before turning to the detailed analysis, we provide a brief overview of the five grounds advanced by Vantor. Each is addressed comprehensively in Section IV.

Argument 1 — Fraud Claims Are Duplicative of Contract Claims and Fail to Satisfy CPLR § 3016(b) Particularity Requirements. Vantor contends that the First, Second, and Third Causes of Action merely repackage the breach of contract claim and do not allege a duty independent of the FAA. Vantor further argues that the fraud allegations lack the specificity required by CPLR § 3016(b). We assess this argument as presenting a low to moderate risk.

Argument 2 — Breach of Fiduciary Duty Fails Because Vantor Is Not a Fiduciary. Vantor argues that it is a contractual service provider — a fund administrator — and that the FAA establishes an arm's-length commercial relationship, not a fiduciary one. Vantor contends that New York law does not impose fiduciary duties on third-party service providers to hedge funds absent extraordinary circumstances. We assess this argument as presenting moderate to high risk, and note it is the most vulnerable of Ironside's claims.

Argument 3 — The Contractual Liability Cap in FAA § 9.3 Limits Vantor's Exposure to $2.98 Million. Vantor invokes the liability cap provision of FAA § 9.3, which limits Vantor's aggregate liability to two times the aggregate fees paid during the twelve-month period preceding termination (i.e., October 2022 through September 2023), yielding a cap of approximately $2.98 million. We assess this argument as presenting very low risk.

Argument 4 — Unjust Enrichment Is Precluded by the Existence of an Express Contract. Vantor argues that the Seventh Cause of Action for unjust enrichment must be dismissed because the FAA is a valid, enforceable contract governing the parties' relationship and the subject matter of the dispute. We assess this argument as presenting moderate risk, though the practical impact of losing this claim is minimal.

Argument 5 — The Economic Loss Doctrine Bars All Tort Claims. Vantor argues that all tort claims are barred because Ironside's alleged damages are purely economic losses arising from the contractual relationship, with no independent duty or personal injury. We assess this argument as presenting low risk.

We now turn to the detailed analysis.

IV. DETAILED ANALYSIS OF EACH ARGUMENT

A. Argument 1: Fraud Claims Are Duplicative of Contract Claims / CPLR § 3016(b) Particularity

1. Vantor's Position

Vantor's memorandum of law devotes approximately ten pages to the argument that the First Cause of Action (common-law fraud), the Second Cause of Action (fraudulent concealment), and the Third Cause of Action (negligent misrepresentation) are duplicative of the Fourth Cause of Action (breach of contract) and must therefore be dismissed. Vantor characterizes Ironside's fraud claims as nothing more than the breach of contract claim "dressed up in the language of fraud," asserting that the only "wrong" alleged is that Vantor failed to perform the valuation services in accordance with the FAA — which is, by definition, a breach of contract, not a tort.

In addition, Vantor argues that even if the fraud claims could theoretically be maintained as independent causes of action, the Complaint fails to plead fraud with the specificity required by CPLR § 3016(b). That provision mandates that "the circumstances constituting the wrong shall be stated in detail." Vantor asserts that the Complaint paints with an overly broad brush — alleging a generalized scheme of overvaluation without identifying, for each of the forty-seven positions, the specific fraudulent act, the specific misrepresentation, the date on which it was made, the identity of the person who made it, and the mechanism by which it was false. Vantor frames this as a "shotgun" approach that fails to give adequate notice of the specific fraudulent conduct alleged.

2. C&H's Assessment — Strength of Vantor's Argument: LOW TO MODERATE

We view this argument as weak, though it warrants a thorough and well-organized response. The distinction between fraud claims and breach of contract claims is well-established in New York law, and our Complaint was drafted with this distinction squarely in mind.

Under New York law, a fraud claim is not duplicative of a breach of contract claim where the plaintiff alleges either: (a) a misrepresentation of present fact that is collateral or extraneous to the contract — i.e., the defendant misrepresented existing facts rather than merely breaking a promise to perform in the future; or (b) a fraudulent intent that predates or is independent of the contract — i.e., the defendant entered into the contract without any intention of performing, or the defendant engaged in affirmative acts of deception that go beyond non-performance.

The Complaint satisfies both of these standards. Specifically, the Complaint identifies the following fraudulent conduct that is separate and distinct from mere non-performance of the FAA:

(a) Use of Stale Broker Quotes: Vantor systematically used broker quotes that were six to twelve months old in pricing illiquid credit positions, without disclosing to Ironside that the quotes were stale. This is not a failure to perform — it is an affirmative misrepresentation that the valuations reflected current market conditions when Vantor knew they did not.

(b) Internally Generated "Model Adjustments": Vantor applied undisclosed internal model adjustments that inflated marks by an average of 14.3% above observable inputs. These adjustments were not disclosed to Ironside and were not reflected in the valuation reports delivered to the funds. This constitutes an affirmative concealment of a material methodology deviation.

(c) Deliberate Failure to Apply Contractual Waterfall Valuation Procedures: The Ironside Valuation Policy v.3.2, incorporated by reference into the FAA, prescribes a multi-step waterfall for pricing Level 2 and Level 3 assets. Vantor deliberately bypassed the prescribed waterfall — not merely through negligence or oversight, but as a matter of practice, in order to maintain inflated marks that justified continued fee generation.

(d) Concealment of Internal Emails Documenting Knowledge of Inflation: The Complaint specifically references internal Vantor emails — obtained through the pre-suit subpoena served upon DataVault Solutions Inc., Vantor's cloud-hosted email and document retention service provider — in which Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations) acknowledge that certain marks were "significantly above where these would clear" and discuss strategies for avoiding detection by Ironside's internal review processes.

These allegations establish a "misrepresentation collateral or extraneous to the contract" — that is, affirmative misrepresentations and active concealment that go well beyond the mere breach of a contractual promise to provide accurate valuations. The fraud is not that Vantor failed to value the positions correctly; the fraud is that Vantor affirmatively represented to Ironside that the valuations were accurate, GAAP-compliant, and consistent with the Ironside Valuation Policy when Vantor knew they were not — and then took steps to conceal the discrepancies.

With respect to CPLR § 3016(b), the Complaint satisfies the particularity requirement by identifying the essential elements of the fraud with specificity:

• Who: Nathan Orris, SVP Valuation Services, and Deepa Rajaram, VP Client Valuation Operations, as the individual Vantor employees primarily responsible for the fraudulent valuations.

• What: Inflated valuations of forty-seven specifically identified positions across Fund I, Fund II, and Fund III, including the use of stale broker quotes, undisclosed model adjustments averaging 14.3% above observable inputs, and failure to apply the contractual waterfall methodology.

• When: Q1 2021 through Q3 2023 — eleven consecutive quarters — with peak overvaluation of $52.3 million in Q4 2022.

• Where: Valuations were delivered to Ironside for NAV calculation via Vantor's ValuTrack platform and through quarterly valuation reports transmitted by email.

• How: Specific methodology failures, including use of stale quotes, application of undisclosed model adjustments, and deliberate bypass of the Ironside Valuation Policy v.3.2 waterfall.

• Scienter: Concealment of internal emails evidencing awareness of inflation; Orris email dated September 14, 2022 stating marks were "significantly above where these would clear"; Rajaram email dated November 3, 2022 discussing "optics management" with respect to Ironside's quarterly review.

This level of specificity meets or exceeds the standard applied by Commercial Division judges under CPLR § 3016(b). We note that the standard is one of reasonable detail — the statute does not require the plaintiff to prove the fraud at the pleading stage, and courts routinely hold that § 3016(b) should not be applied so strictly as to prevent otherwise meritorious fraud claims from proceeding.

Commercial Division precedent further supports the proposition that fraud claims may survive alongside breach of contract claims where, as here, the defendant makes affirmative misrepresentations of present fact or actively conceals information that it has a duty to disclose. This is precisely what Ironside has alleged.

3. Risk Assessment

We assess a low risk of full dismissal of the common-law fraud claim (First Cause of Action). The allegations are specific, well-supported by documentary evidence referenced in the Complaint, and establish conduct that is plainly tortious and independent of the contractual obligation.

We assess a low to moderate risk with respect to the fraudulent concealment claim (Second Cause of Action). The court could, in theory, require greater specificity as to which particular concealed communications are at issue and the precise nature of the duty to disclose. However, the pre-suit subpoena to DataVault Solutions Inc. and the Vantor internal emails already referenced in the Complaint provide a strong factual foundation, and the duty to disclose arises both from the FAA (which requires Vantor to provide accurate, complete valuation information) and from the general duty not to actively conceal material information in a professional services relationship.

The negligent misrepresentation claim (Third Cause of Action) may face slightly higher scrutiny, particularly in combination with Vantor's economic loss doctrine argument (addressed in Section IV.E below). However, the claim should survive given that the Complaint alleges a "special relationship" arising from Vantor's role as an independent valuation agent upon whose work Ironside, its investors, and regulators relied.

4. Proposed Opposition Strategy

In our opposition brief, we intend to pursue the following strategy with respect to this argument:

• Emphasize the distinction between fraud and breach of contract. The fraud claims rest on affirmative misrepresentations of present fact — i.e., Vantor delivered valuations and represented them as accurate, GAAP-compliant, and consistent with the Ironside Valuation Policy v.3.2 when Vantor knew they were not. These are not "broken promises" — they are lies about existing conditions. We will cite the leading Commercial Division authorities distinguishing fraud from contract in the financial services context.

• Highlight the specificity of the Complaint. We will walk the court through the forty-seven identified positions, the average 14.3% mark inflation, the identified Vantor personnel (Orris and Rajaram), the specific quarters, and the internal emails demonstrating scienter. We will argue that the Complaint meets or exceeds the standard required under CPLR § 3016(b).

• Emphasize the active concealment. The concealment of internal emails documenting awareness that marks were inflated is conduct that goes beyond non-performance of a contract — it is an independent tort. We will argue that fraudulent concealment is, by definition, distinct from breach of contract because it involves a deliberate decision to hide information, not a failure to perform.

• Cite supporting precedent. We will rely on the extensive body of Commercial Division case law recognizing that fraud claims survive alongside contract claims where the defendant made affirmative misrepresentations of present fact or engaged in active concealment.

B. Argument 2: Breach of Fiduciary Duty Fails — Vantor Is Not a Fiduciary

1. Vantor's Position

Vantor devotes approximately eight pages of its memorandum to the argument that the Fifth Cause of Action (breach of fiduciary duty) must be dismissed because Vantor is a contractual service provider — specifically, a fund administrator — and not a fiduciary. Vantor characterizes the FAA as establishing an arm's-length commercial relationship between sophisticated parties, and argues that New York law does not impose fiduciary duties on third-party service providers to hedge funds absent extraordinary circumstances not present here.

Vantor relies on the general principle that a fiduciary relationship requires a higher degree of trust and confidence than that which exists in an ordinary contractual arrangement between sophisticated commercial actors. Vantor argues that the FAA itself demonstrates the arm's-length nature of the relationship: the agreement was negotiated between represented parties, contains detailed provisions allocating risk and liability, includes a limitation of liability clause, and does not contain any language creating or acknowledging a fiduciary relationship.

Vantor further argues that Ironside, as a sophisticated fund manager, cannot credibly claim that it reposed the kind of trust and confidence in its fund administrator that would give rise to fiduciary duties. Vantor characterizes its role as essentially ministerial — receiving trade data, applying pricing from third-party vendors, and delivering reports — and dismisses the suggestion that it exercised independent discretion over asset pricing.

2. C&H's Assessment — Strength of Vantor's Argument: MODERATE TO HIGH

We assess this as the most vulnerable of Ironside's claims, and we want to provide the Ironside team with a candid assessment of the risks.

As a general matter, New York courts have been reluctant to impose fiduciary duties on contractual counterparties — including professional service providers — absent a relationship of trust and confidence that goes beyond the ordinary commercial arrangement. The mere existence of a contractual obligation to provide services, even specialized professional services, does not automatically give rise to a fiduciary duty. Courts have repeatedly held that where parties deal at arm's length and memorialize their respective obligations in a written agreement, the relationship is governed by contract, not fiduciary principles.

However, there is a meaningful distinction between a ministerial service provider and one that exercises independent discretion over matters of critical importance to the client. Our position — and the basis for the Fifth Cause of Action — is that Vantor's role went far beyond ministerial processing. Under FAA § 4.2 (Valuation Services), Vantor was vested with independent discretion in pricing Level 2 and Level 3 assets. These are, by definition, illiquid and hard-to-price assets for which there are no readily available market quotations. Vantor did not simply input publicly available prices into a spreadsheet; it exercised professional judgment — selecting pricing sources, applying valuation models, determining when to use broker quotes versus model-based marks, and making Level 2/Level 3 classifications — all of which directly determined the NAVs upon which Ironside, its investors, and regulators relied.

Moreover, FAA § 3.1 required Vantor to perform its services in accordance with the standard of care of a "reasonably prudent professional fund administrator" and to comply with GAAP and the Ironside Valuation Policy v.3.2. These provisions, combined with Vantor's representations to Ironside and its limited partners that it served as an independent check on portfolio valuations, gave rise to a relationship that was more akin to fiduciary trust than a simple vendor arrangement.

The distinction between ministerial and discretionary functions is the critical issue. Where a fund administrator exercises independent judgment in valuing illiquid and hard-to-price assets — particularly where the fund, its investors, and regulators rely upon the administrator's independence — the argument for fiduciary status is considerably stronger than for a bookkeeping service that merely records transactions. We believe we can make a persuasive case for this distinction, though we acknowledge that the outcome is uncertain.

3. Risk Assessment

We assess a moderate to high risk of dismissal of the Fifth Cause of Action. The general reluctance of New York courts to impose fiduciary duties on contractual counterparties presents a significant headwind. Vantor will cite a number of cases in which courts declined to find fiduciary relationships between fund managers and their service providers, and those cases are not easily distinguishable.

That said, we believe there are strong arguments for survival on a motion to dismiss standard, which requires the court to accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Whether a fiduciary duty exists is often characterized as a fact-intensive inquiry that is inappropriate for resolution on a pre-answer motion, and we will press that argument vigorously.

Importantly, even if the Fifth Cause of Action is dismissed, the practical impact on Ironside's case is limited. The same universe of damages is recoverable through the surviving breach of contract and fraud claims. The breach of fiduciary duty claim does not open up a separate category of damages that would otherwise be unavailable. The primary benefit of maintaining the fiduciary duty claim is that it provides an additional legal theory and may carry persuasive weight with the factfinder at trial; but the loss of this claim would not materially alter the case's value or trajectory.

4. Proposed Opposition Strategy

• Argue that the existence of a fiduciary duty is a fact-intensive question. We will urge the court to find that the question of whether Vantor owed fiduciary duties to Ironside cannot be resolved on a CPLR § 3211 motion, where the court must accept all well-pleaded factual allegations as true. The nature and extent of Vantor's discretion, the degree of trust and reliance, and the representations made by Vantor are all questions that require a developed factual record.

• Emphasize Vantor's discretionary valuation authority. We will focus on FAA § 4.2 and the specific scope of Vantor's valuation responsibilities, highlighting that Vantor was not a passive inputter of publicly available data but rather an active decision-maker exercising professional judgment over the pricing of illiquid and hard-to-price assets.

• Highlight the degree of reliance. We will emphasize that Ironside, its limited partners (including institutional investors such as Ashford Endowment Partners LP), and regulators relied upon Vantor's independence and accuracy. Vantor held itself out as an independent check on portfolio valuations — a role that inherently carries fiduciary-like obligations.

• Cite cases recognizing fiduciary duties in analogous contexts. We will identify and cite cases in which courts have recognized fiduciary duties arising from professional relationships involving discretionary authority over client assets or financial information, including in the fund administration and audit contexts.

• Preserve the issue for appeal if necessary. Even if the court dismisses this claim, we will ensure the record is clear for purposes of any potential appeal.

C. Argument 3: Contractual Liability Cap (FAA § 9.3) Limits Damages to $2.98 Million

1. Vantor's Position

Vantor's third argument invokes the contractual liability cap contained in FAA § 9.3. That provision states, in relevant part:

"Notwithstanding anything to the contrary herein, the aggregate liability of the Administrator to the Client under or in connection with this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed an amount equal to two (2) times the aggregate Fees paid by the Client to the Administrator during the twelve (12) month period immediately preceding the date of the event giving rise to such liability."

Vantor calculates the applicable cap as follows: aggregate fees paid during the twelve-month period preceding termination — i.e., October 2022 through September 2023 — totaled approximately $1.49 million. Two times that amount equals $2.98 million. Vantor argues that this cap applies to all claims asserted in the Complaint, including the fraud claims, and that it represents the freely negotiated allocation of risk between two sophisticated commercial actors represented by counsel.

Vantor frames its argument in terms of freedom of contract, arguing that sophisticated parties are entitled to allocate risk as they see fit, and that courts should not second-guess a bargained-for limitation of liability simply because the resulting cap appears small relative to the claimed damages. Vantor cites several general precedents upholding contractual limitations of liability between commercial parties.

2. C&H's Assessment — Strength of Vantor's Argument: LOW

This is one of the weakest arguments in Vantor's motion, and we are confident it will not succeed at the pleading stage.

New York law is well established that contractual limitations on liability — including liability caps and exculpation clauses — are unenforceable with respect to claims sounding in fraud, willful misconduct, or gross negligence as a matter of public policy. This principle is deeply rooted in New York jurisprudence and reflects the policy judgment that parties should not be permitted to contract for immunity from the consequences of their own intentional wrongdoing. A contractual provision that purports to limit liability for fraud would, in effect, create a license to defraud — which is precisely the outcome the law prohibits.

Moreover, the FAA itself contains provisions that are internally inconsistent with the application of the § 9.3 cap to fraud claims. Specifically, FAA § 9.1 provides that Vantor agreed to indemnify Ironside for losses arising from Vantor's "negligence, fraud, willful misconduct, or material breach." This indemnification obligation — which expressly encompasses fraud — is fundamentally inconsistent with the notion that the § 9.3 cap was intended to limit Vantor's exposure for fraudulent conduct. If the parties intended the cap to apply to fraud, then the indemnification obligation for fraud in § 9.1 would be meaningless, because the indemnity could never exceed $2.98 million regardless of the magnitude of the fraud. Principles of contract construction require that the court give effect to all provisions of the contract and avoid interpretations that render any provision superfluous. Reading §§ 9.1 and 9.3 together, the most natural interpretation is that the cap applies to claims arising from negligence and ordinary breach, but not to claims arising from fraud or willful misconduct.

The gross disproportion between the cap ($2.98 million) and the actual damages ($287 million) further undermines Vantor's argument. While disproportionality alone may not invalidate a liability cap, courts are especially skeptical of caps that bear no reasonable relationship to foreseeable losses in the context of intentional misconduct. Total fees paid over the life of the FAA (June 2017 through September 2023) were approximately $9.28 million — meaning the cap represents less than one-third of total fees and approximately 1% of actual losses.

Finally, and critically, at the motion to dismiss stage, the court must accept as true Ironside's well-pleaded allegations of fraud and willful misconduct. The enforceability of the cap cannot be determined as a matter of law at this juncture because the applicability of the cap depends on the ultimate resolution of the fraud allegations. If Vantor committed fraud — as Ironside alleges and as the court must assume at the pleading stage — then the cap is unenforceable. It would be premature and procedurally improper for the court to apply the cap at this stage.

3. Risk Assessment

We assess a very low risk of dismissal on this ground. The court is highly unlikely to apply the liability cap to fraud and willful misconduct claims at the motion to dismiss stage. Even with respect to the breach of contract claim standing alone, the enforceability of the cap may present triable issues of fact and contract interpretation that cannot be resolved on a pre-answer motion.

We note that this argument may resurface at later stages of the litigation — particularly at summary judgment — but even then, if Ironside can demonstrate fraud or willful misconduct, the cap will be unenforceable.

4. Proposed Opposition Strategy

• Cite controlling New York precedent. We will cite the established body of New York case law holding that contractual liability limitations are void as against public policy when fraud or willful misconduct is established. This is well-settled law and should be dispositive.

• Argue prematurity. We will argue that the cap is, at minimum, inapplicable at the pleading stage, where the court must accept Ironside's fraud allegations as true. The question of whether the cap applies cannot be determined until the underlying factual issues are resolved.

• Highlight the internal inconsistency within the FAA. We will argue that § 9.1 (indemnification for fraud) and § 9.3 (liability cap) must be read together, and that the fraud-specific indemnity obligation in § 9.1 demonstrates that the parties intended the cap not to apply to fraud-based losses. We will invoke the principle of contract construction that every provision must be given effect.

• Note the gross disproportion. We will highlight the $2.98 million cap versus $287 million in actual losses and argue that applying the cap in the context of intentional fraud would be unconscionable and contrary to public policy.

D. Argument 4: Unjust Enrichment Is Precluded by Express Contract

1. Vantor's Position

Vantor's fourth argument targets the Seventh Cause of Action (unjust enrichment), contending that this claim must be dismissed because there exists an express, written contract — the FAA — governing the subject matter of the parties' dispute. Vantor relies on the well-established New York principle that the doctrine of unjust enrichment is not available where a valid and enforceable contract exists between the parties covering the same subject matter. Vantor characterizes the unjust enrichment claim as an improper attempt to circumvent the contractual framework — including the liability cap in § 9.3 — by repackaging the same conduct and damages under an equitable theory.

2. C&H's Assessment — Strength of Vantor's Argument: MODERATE

Vantor is correct as a general proposition. It is black-letter New York law that unjust enrichment does not lie where a valid, enforceable contract exists between the parties covering the same subject matter. The rationale is straightforward: where the parties have defined their obligations by agreement, the law will enforce the agreement rather than impose quasi-contractual obligations that the parties did not bargain for.

However, the Complaint pleads unjust enrichment in the alternative, which is expressly permitted under CPLR § 3014. This is standard practice in commercial litigation in New York, particularly where the enforceability or scope of the contract is in dispute. Courts routinely allow alternative pleading of equitable claims alongside contract claims at the pleading stage, reserving the question of whether the equitable claim is precluded for summary judgment or trial, when the scope and enforceability of the contract can be fully assessed.

Here, there are additional reasons to permit the unjust enrichment claim to proceed. Vantor itself has placed the contract's terms at issue by invoking the § 9.3 liability cap. If the court were ultimately to determine that the FAA does not cover certain aspects of Vantor's conduct — for example, the concealment of internal emails, the application of undisclosed model adjustments that fell outside the scope of services described in the FAA, or conduct that occurred after the FAA was terminated — then unjust enrichment would provide a basis for recovery as to those elements. Moreover, if the court were to find the FAA unenforceable in whole or in part (for example, due to fraud in the inducement), unjust enrichment would be the appropriate vehicle for recovering fees paid for fraudulent services.

We also note that the unjust enrichment claim captures a discrete category of relief: the disgorgement of the approximately $9.28 million in fees that Vantor retained over the life of the FAA for services that were fraudulently performed. While these fees may also be recoverable as an element of consequential damages under the contract or fraud claims, the unjust enrichment claim provides an independent equitable basis for disgorgement that does not depend on the enforceability of any particular contractual provision.

3. Risk Assessment

We assess a moderate risk of dismissal of the Seventh Cause of Action. Some Commercial Division judges have been willing to dismiss unjust enrichment claims at the pleading stage where the existence and validity of the underlying contract is undisputed. However, many other judges in the Commercial Division routinely permit alternative pleading of equitable claims, deferring the preclusion question to summary judgment. The outcome on this point may depend in part on Judge Torrance's individual preferences and practices.

Even if dismissed, the loss of the unjust enrichment claim is not material to the overall case. The same damages — and, indeed, greater damages — are recoverable through the surviving breach of contract and fraud claims. The unjust enrichment claim is a supplemental theory, not a core claim.

4. Proposed Opposition Strategy

• Emphasize the permissibility of alternative pleading. We will cite CPLR § 3014 and the extensive body of Commercial Division precedent authorizing alternative pleading of equitable claims alongside contract claims.

• Argue that the scope of the FAA remains contested. We will point out that Vantor itself has placed the contract's terms and scope at issue — by invoking the § 9.3 liability cap and by characterizing its role under the FAA as narrower than Ironside alleges. Where the scope and enforceability of the contract are genuinely in dispute, dismissal of the equitable alternative is premature.

• Highlight the disgorgement rationale. We will argue that unjust enrichment captures the approximately $9.28 million in fees Vantor retained for fraudulently performed services, providing an independent equitable basis for disgorgement. Even if the contract is ultimately found enforceable on other grounds, equity may require the return of fees earned through fraud.

• Preserve the claim for later stages. If the court is inclined to dismiss the unjust enrichment claim, we will argue in the alternative that dismissal should be without prejudice, with leave to replead if subsequent developments (e.g., Vantor's answer asserting affirmative defenses challenging the FAA's enforceability) establish that the equitable claim is viable.

E. Argument 5: Economic Loss Doctrine Bars Tort Claims

1. Vantor's Position

Vantor's fifth and final argument invokes New York's economic loss doctrine. Vantor contends that all tort claims — fraud (First Cause of Action), fraudulent concealment (Second Cause of Action), negligent misrepresentation (Third Cause of Action), and breach of fiduciary duty (Fifth Cause of Action) — are barred because Ironside's alleged damages are purely economic losses arising from the contractual relationship, with no independent duty, no personal injury, and no property damage. Vantor argues that permitting tort recovery for purely economic losses that arise from a contractual relationship would undermine the certainty and predictability of commercial contracts, and that the proper remedy is a breach of contract claim — which Ironside has already asserted.

Vantor relies on a line of cases applying the economic loss doctrine to bar negligence-based tort claims where the damages consist solely of the loss of the benefit of the bargain.

2. C&H's Assessment — Strength of Vantor's Argument: LOW

This is a weak argument, and we are confident it will not result in the dismissal of the fraud claims. The economic loss doctrine, as applied in New York, is considerably narrower than Vantor suggests, and its invocation in this context reflects a mischaracterization of the governing law.

New York's economic loss doctrine does not bar fraud claims. The doctrine operates to bar recovery in tort for purely economic losses in the context of negligence and strict products liability claims — principally in the products liability and construction contexts — where the plaintiff's only injury is the loss of the benefit of the bargain. The doctrine does not apply to intentional torts, including fraud and fraudulent concealment. New York courts have consistently and explicitly held that the economic loss doctrine does not bar claims for fraud, fraudulent misrepresentation, or fraudulent concealment, regardless of whether the damages are purely economic. The policy rationale is straightforward: a party that commits fraud should not be able to shield itself from tort liability simply because the fraud happened to occur in the context of a contractual relationship.

Moreover, even in the negligence context, the economic loss doctrine is subject to the "special relationship" exception. Under this exception, a plaintiff may recover in tort for purely economic losses caused by negligent misrepresentation where the defendant and the plaintiff share a "special relationship" — typically defined as a relationship in which: (a) the defendant is in the business of providing information for the guidance of others; (b) the defendant is aware that the plaintiff will rely on the information; and (c) the defendant has some relationship with the plaintiff importing a duty of care.

Here, Vantor — as a professional fund administrator — was in the business of providing valuation information for the guidance of Ironside, its investors, and regulators. Vantor was aware that its valuations would be relied upon in calculating NAVs, processing investor subscriptions and redemptions, preparing financial statements, and filing regulatory reports. Vantor had a professional relationship with Ironside that imported a duty of care. These are the classic hallmarks of a "special relationship," and the negligent misrepresentation claim (Third Cause of Action) falls squarely within the exception.

The economic loss doctrine is further inapplicable in this case because the alleged damages extend beyond the contract expectancy. The Complaint alleges harm to third parties — including limited partners who subscribed and redeemed at inflated NAVs, and Ironside's own reputational standing with institutional investors and regulators. These losses are not merely the loss of the benefit of the bargain; they are independent harms caused by tortious conduct.

3. Risk Assessment

We assess a low risk of dismissal of the fraud-based tort claims (First and Second Causes of Action) on economic loss grounds. This argument is contrary to well-established New York law and should be disposed of straightforwardly.

The negligent misrepresentation claim (Third Cause of Action) may face somewhat more scrutiny under the economic loss doctrine, but the "special relationship" exception is well-established for professional service providers who provide information for the guidance of others. We are confident this claim will survive as well.

The application of the economic loss doctrine to the breach of fiduciary duty claim (Fifth Cause of Action) is largely academic, as that claim faces the more significant challenge discussed in Section IV.B above (whether Vantor is a fiduciary at all). If the court finds a fiduciary relationship exists, the economic loss doctrine would not bar the claim; if the court finds no fiduciary relationship, the claim would be dismissed on that ground regardless.

4. Proposed Opposition Strategy

• Establish that the economic loss doctrine is inapplicable to intentional torts. We will cite the controlling New York authorities holding that the economic loss doctrine does not bar claims for fraud, fraudulent misrepresentation, or fraudulent concealment. This is black-letter law and should require minimal briefing.

• Establish the "special relationship" for the negligent misrepresentation claim. We will set forth the elements of the special relationship between Vantor and Ironside: Vantor was in the business of providing valuation information; Vantor was aware its valuations would be relied upon by Ironside, its investors, and regulators; Vantor had superior information and expertise regarding the pricing of illiquid assets; and Ironside justifiably relied on Vantor's independence and accuracy.

• Distinguish Vantor's authorities. Vantor's cited cases likely involve simple negligence in contractual performance, products liability, or construction disputes — contexts far removed from the professional services and intentional fraud at issue here. We will distinguish those cases on their facts and legal context.

• Highlight the breadth of the damages. We will argue that Ironside's damages extend beyond the contract expectancy and include harm to third parties (limited partners, redeeming investors, regulators), further placing this case outside the scope of the economic loss doctrine.

V. OVERALL RISK ASSESSMENT AND RECOMMENDATION

A. Summary Table

The following table summarizes our assessment of the risk of dismissal for each of Ironside's seven causes of action:

B. Overall Assessment

The core claims in this case — breach of contract (Fourth Cause of Action) and common-law fraud (First Cause of Action) — are very likely to survive the motion to dismiss. These claims carry the vast majority of the approximately $287 million in direct damages and form the backbone of Ironside's case. The breach of contract claim is well-supported by the specific provisions of the FAA (§§ 3.1 and 4.2) and the detailed factual allegations in the Complaint. The fraud claim is supported by specific allegations of affirmative misrepresentations and concealment, identified with particularity as to the who, what, when, where, how, and scienter.

The claims at greatest risk are the breach of fiduciary duty (Fifth Cause of Action) and unjust enrichment (Seventh Cause of Action). With respect to fiduciary duty, the general reluctance of New York courts to impose fiduciary duties on contractual service providers presents a significant challenge, though we believe the fact-intensive nature of the inquiry may be sufficient to survive a motion to dismiss. With respect to unjust enrichment, Vantor's argument has a reasonable basis in the law, though alternative pleading is expressly authorized and widely practiced.

Critically, even if both the fiduciary duty and unjust enrichment claims are dismissed, the practical impact on Ironside's case is limited. The same universe of damages — including the full $287 million in direct losses — is recoverable through the surviving contract and fraud claims. Punitive damages, which are sought on the fraud counts, are entirely unaffected by Vantor's motion. The liability cap argument (FAA § 9.3) poses no meaningful threat at this stage or, we believe, at any stage where fraud is established.

The aiding and abetting fraud claim (Sixth Cause of Action) is derivative of the fraud claims: if the underlying fraud claims survive — as we expect they will — the aiding and abetting claim should survive as well. Vantor's memorandum does not devote significant attention to the aiding and abetting claim as an independent target, which suggests WDC recognizes its dependence on the resolution of the fraud arguments.

In sum, we expect Ironside to emerge from this motion with its core claims intact and its case positioned for discovery. The most realistic adverse outcome is the dismissal of one or two secondary claims, which would not materially affect the trajectory or value of the litigation.

C. Recommended Course of Action

Based on the foregoing analysis, Calderwood & Harkness recommends the following course of action:

1. File a robust opposition brief by March 21, 2025. The opposition will consist of a Memorandum of Law in Opposition to Defendant's Motion to Dismiss, supported by an Attorney Affirmation of Yuki Nakamura attaching fourteen (14) documentary exhibits. The exhibits will include excerpts of the FAA and the First and Second Amendments thereto, selected Vantor internal emails obtained via the pre-suit subpoena served upon DataVault Solutions Inc., a summary of the preliminary report of Ironside's valuation expert Harmon-Bryce Consulting LLC, a summary of the damages report prepared by Kessler Economics Group, and key correspondence between the parties.

2. Defend all seven causes of action. We will vigorously defend all seven causes of action in the opposition brief. However, consistent with our risk assessment, we will allocate our briefing resources to invest the greatest effort in preserving the fraud and contract claims (which face the lowest risk of dismissal and carry the most significant damages), while making the strongest possible arguments for the fiduciary duty claim.

3. Prepare for oral argument. Calderwood & Harkness will prepare a comprehensive bench memo and talking points for Samuel Eklund, who will argue the opposition at the April 14, 2025 oral argument before Judge Torrance. The bench memo will address each of Vantor's arguments, anticipate likely questions from the court, and provide concise responses. We will also prepare a brief summary of key exhibits for easy reference during argument.

4. Client attendance at oral argument. We recommend that Elliot Brennan and Rajiv Subramanian be available to attend the April 14, 2025 oral argument. While they are not expected to speak, their presence in the courtroom demonstrates the seriousness with which Ironside takes this matter and may be noted by the court. We will coordinate logistics with Katherine Lim.

VI. ANTICIPATED NEXT STEPS AND TIMELINE

The following is the anticipated timeline of events in the near term:

March 21, 2025 — Ironside's Opposition Brief Filed. Calderwood & Harkness will file the Memorandum of Law in Opposition to Defendant's Motion to Dismiss, together with the Nakamura Affirmation and fourteen (14) documentary exhibits. A draft of the opposition brief will be circulated to the Ironside team for review no later than March 17, 2025. We ask that any comments be provided by close of business on March 19, 2025, to allow sufficient time for finalization and filing.

Approximately April 4, 2025 — Vantor's Reply Brief. We anticipate that Vantor will file a reply brief approximately two weeks after our opposition. We will review the reply closely upon receipt and alert the Ironside team to any new arguments or unexpected positions.

Week of April 7, 2025 — Pre-Argument Preparation. Calderwood & Harkness will circulate the bench memo, talking points, and logistical details for the oral argument. If Vantor raises new arguments in its reply — for example, a Martin Act preemption argument or a new documentary evidence argument under CPLR § 3211(a)(1) that was not raised in the opening brief — we may seek leave to file a short sur-reply letter brief. We will assess that need promptly upon receipt of Vantor's reply and confer with the Ironside team.

April 14, 2025 — Oral Argument. Oral argument on the Motion to Dismiss will take place before the Honorable Richard Torrance, J.S.C., in the Commercial Division, New York County. Samuel Eklund will argue on behalf of Ironside. We anticipate argument will last approximately one hour. We recommend that Elliot Brennan and Rajiv Subramanian attend.

Post-Oral Argument — If Motion Is Denied (Expected Outcome). If the motion is denied in whole or in substantial part — which we expect — Vantor will have twenty (20) days from the date of the order to serve an answer. Upon receipt of Vantor's answer, Calderwood & Harkness will immediately serve the First Set of Document Requests (52 requests) and the First Set of Interrogatories (25 interrogatories), both of which are already in advanced draft form.

We anticipate proposing the following discovery schedule to the court, either by stipulation with WDC or by application to Judge Torrance:

This timeline is aggressive but realistic for a case of this magnitude in the Commercial Division. We will keep the Ironside team apprised of all developments and will confer with Katherine Lim and Rajiv Subramanian as needed regarding document collection and production obligations that will arise during the fact discovery phase.

VII. COSTS AND BUDGETING NOTE

A comprehensive Q1 2025 Quarterly Litigation Budget and Fee Report is being prepared separately by Linda Osei and will be transmitted directly to Katherine Lim and Rajiv Subramanian under separate cover. That report will provide a detailed breakdown of fees and costs incurred to date, projected expenditures for the remainder of Q1 and Q2 2025, and updated case budget projections.

For purposes of this memorandum, we note that the costs associated with the opposition briefing, affirmation preparation, exhibit compilation, and oral argument preparation for this motion are estimated at approximately $175,000 to $225,000 in professional fees. This estimate reflects the anticipated time contributions of all four members of the Calderwood & Harkness litigation team:

These estimates are subject to adjustment based on the scope of Vantor's reply brief and any additional issues that may arise during the briefing process. We will promptly notify Katherine Lim if we anticipate exceeding the high end of this range.

We confirm that the $500,000 evergreen retainer currently held by Calderwood & Harkness remains in good standing and is fully funded.

VIII. REQUEST FOR CLIENT INPUT

We respectfully request that the Ironside team review the foregoing analysis and provide any additional factual context, documents, or insights that may strengthen our opposition to Vantor's motion. In particular, the following items would be of significant value to the team's preparation:

1. Additional Internal Ironside Communications (July–October 2023). Any internal Ironside memoranda, emails, instant messages, or other communications from the period of July through October 2023 that document interactions between Ironside personnel and Vantor personnel — particularly Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations) — regarding valuation discrepancies, methodology questions, or concerns about the accuracy of Vantor's pricing. These communications may be relevant to establishing the timeline of discovery of the fraud and to countering any argument that Ironside was aware of or acquiesced in Vantor's valuation methodology.

2. Confirmation of the $12.6 Million CLO Equity Discrepancy. We ask Rajiv Subramanian to confirm the details of the $12.6 million discrepancy he identified in July 2023 on seven CLO equity positions through a comparison with pricing indications provided by Dana Crossley at Northpoint Securities LLC. Specifically, we would appreciate confirmation of: (a) the exact date on which the discrepancy was first identified; (b) the seven positions involved (CUSIP, issuer, tranche); (c) the magnitude of the discrepancy on a position-by-position basis; and (d) any written communications with Vantor or Northpoint regarding the discrepancy. This is a critical fact that underpins the scienter allegations in the Complaint.

3. Communications from Limited Partners. Any communications received from Ashford Endowment Partners LP (Philip Ashford III), or from any other limited partners, regarding the misvaluation of fund positions, questions about NAV accuracy, or concerns about Vantor's performance. These communications may be relevant to the reliance and damages elements of the fraud claims and may also support the argument that Vantor's valuations were relied upon by third parties, strengthening the "special relationship" analysis for the negligent misrepresentation claim and the fiduciary duty argument.

Additionally, we ask that Elliot Brennan and Rajiv Subramanian confirm their availability to attend the oral argument on April 14, 2025. Please coordinate with our office as to scheduling.

We are happy to arrange a call or meeting at the Ironside team's convenience to discuss this memorandum and address any questions. Please do not hesitate to contact either Samuel Eklund or Yuki Nakamura to arrange.

IX. CONFIDENTIALITY NOTICE

This memorandum constitutes a privileged and confidential attorney-client communication and is protected by the attorney-client privilege and the attorney work product doctrine. It has been prepared by Calderwood & Harkness LLP solely for the use of the named recipients — Elliot Brennan, Marguerite Dao, and Katherine Lim of Ironside Capital Management LP — in connection with the above-referenced matter and for the sole purpose of providing legal advice and analysis.

This memorandum contains the mental impressions, conclusions, opinions, and legal theories of the attorneys at Calderwood & Harkness LLP and is entitled to the highest level of protection afforded by the work product doctrine.

The contents of this memorandum should not be disclosed, disseminated, distributed, or copied, in whole or in part, to any person or entity other than the named recipients without the prior written authorization of Calderwood & Harkness LLP. Any unauthorized disclosure may result in waiver of applicable privileges and protections. If you have received this memorandum in error, please contact the undersigned immediately.

CALDERWOOD & HARKNESS LLP

By: ________

Samuel Eklund Partner Direct: (212) 554-7100 seklund@calderwoodharkness.com

By: ________

Linda Osei Partner Direct: (212) 554-7245 losei@calderwoodharkness.com

Calderwood & Harkness LLP 51 West 52nd Street, 40th Floor New York, New York 10019 Main: (212) 554-7000

Fax: (212) 554-7001

cc: Yuki Nakamura, Senior Associate, Calderwood & Harkness LLP (internal) Carlos Espinoza, Associate, Calderwood & Harkness LLP (internal)

Event	Date
Verified Complaint filed	January 21, 2025
Vantor's Motion to Dismiss filed	February 28, 2025
Ironside's Opposition to Motion to Dismiss due	March 21, 2025
Vantor's Reply Brief (estimated)	~April 4, 2025
Oral Argument before Hon. Richard Torrance, J.S.C.	April 14, 2025
Cause of Action	Vantor's Primary Argument	C&H Risk Assessment	Likely Outcome
First COA: Common-Law Fraud	Duplicative of contract / § 3016(b)	Low	Survives
Second COA: Fraudulent Concealment	Duplicative of contract / § 3016(b)	Low-Moderate	Likely survives; possible narrowing
Third COA: Negligent Misrepresentation	Economic loss doctrine / duplicative	Low-Moderate	Likely survives
Fourth COA: Breach of Contract	Liability cap (FAA § 9.3)	Very Low	Survives
Fifth COA: Breach of Fiduciary Duty	Vantor is not a fiduciary	Moderate-High	At risk; may be dismissed
Sixth COA: Aiding & Abetting Fraud	Derivative

CALDERWOOD & HARKNESS LLP Counselors at Law 51 West 52nd Street, 40th Floor New York, New York 10019
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT
MEMORANDUM
March 7, 2025
TO:
Elliot Brennan, Co-Founder, Managing Partner & Chief Investment Officer Marguerite Dao, Co-Founder, President & Chief Operating Officer Katherine Lim, General Counsel & Chief Compliance Officer
Ironside Capital Management LP 680 Park Avenue, 34th Floor New York, New York 10065
FROM:
Samuel Eklund, Responsible Partner Linda Osei, Billing Partner
Calderwood & Harkness LLP 51 West 52nd Street, 40th Floor New York, New York 10019
RE:
Ironside Capital Management LP v. Vantor Holdings Corp., Index No. 650312/2025, New York Supreme Court, Commercial Division, New York County — Analysis of Defendant's Motion to Dismiss Filed February 28, 2025
THIS MEMORANDUM CONSTITUTES A PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION AND IS PROTECTED ATTORNEY WORK PRODUCT. IT IS PREPARED SOLELY FOR THE USE OF THE NAMED RECIPIENTS IN CONNECTION WITH THE ABOVE-REFERENCED MATTER. DO NOT FORWARD, COPY, OR DISTRIBUTE WITHOUT PRIOR WRITTEN AUTHORIZATION OF CALDERWOOD & HARKNESS LLP.
I. EXECUTIVE SUMMARY
On February 28, 2025, Vantor Holdings Corp. ("Vantor" or "Defendant"), through its counsel Whitfield, Dane & Corcoran LLP ("WDC"), led by Gregory Dane, filed a pre-answer Motion to Dismiss the Verified Complaint pursuant to CPLR § 3211(a)(1) (defense based on documentary evidence) and § 3211(a)(7) (failure to state a cause of action). The motion is now assigned to the Honorable Richard Torrance, J.S.C., of the Commercial Division, New York County. Oral argument has been scheduled for April 14, 2025.
Vantor's motion advances five principal arguments in support of the dismissal of some or all of Ironside Capital Management LP's ("Ironside" or "Plaintiff") seven causes of action, which include: (1) common-law fraud; (2) fraudulent concealment; (3) negligent misrepresentation; (4) breach of contract; (5) breach of fiduciary duty; (6) aiding and abetting fraud; and (7) unjust enrichment. The five grounds, discussed in detail below, attack the fraud claims as duplicative of the contract claim, challenge the fiduciary duty claim on the basis that Vantor is a mere contractual service provider, invoke the contractual liability cap contained in Fund Administration Agreement ("FAA") § 9.3, contend that unjust enrichment is precluded by the existence of an express contract, and argue that the economic loss doctrine bars all tort claims.
Our overall assessment is that Vantor's motion is substantially unlikely to succeed in dismissing the core claims — breach of contract and common-law fraud — which form the backbone of Ironside's case and carry the vast majority of the approximately $287 million in direct damages. The claims at greatest risk are the breach of fiduciary duty cause of action and the unjust enrichment cause of action, though even if those claims are dismissed, the practical impact on the case is limited, as the same universe of damages is recoverable through the surviving claims. None of Vantor's arguments meaningfully threatens the viability of the case as a whole.
Calderwood & Harkness's opposition brief is due March 21, 2025, and the litigation team — including Senior Associate Yuki Nakamura and Associate Carlos Espinoza — is already engaged in drafting the memorandum of law in opposition and the supporting affirmation. This memorandum provides a detailed ground-by-ground analysis of Vantor's arguments, our risk assessments, and our recommended opposition strategy. We respectfully request that the Ironside team review this analysis and provide any additional factual context or documents that may strengthen the opposition, as detailed in Section VIII below.
II. BACKGROUND AND PROCEDURAL POSTURE
As the Ironside team is aware, Ironside filed the Verified Complaint in this action on January 21, 2025, asserting seven causes of action arising from Vantor's systematic misvaluation of forty-seven (47) illiquid credit and structured-product positions across three Ironside-managed funds: (i) Ironside Credit Opportunities Fund LP ("Fund I"); (ii) Ironside Structured Alpha Fund LP ("Fund II"); and (iii) Ironside Special Situations Fund LP ("Fund III"). The misvaluations span eleven consecutive quarters, from Q1 2021 through Q3 2023, and resulted in aggregate losses to Ironside and its investors of approximately $287 million.
The Complaint was verified by Elliot Brennan in his capacity as Co-Founder, Managing Partner, and Chief Investment Officer of Ironside. The Complaint seeks: (a) $287 million in compensatory damages reflecting the aggregate losses attributable to the inflated net asset values ("NAVs"); (b) $50 million in consequential damages, including management fee disgorgement, incentive allocation clawbacks, and reputational harm; (c) punitive damages on the First and Second Causes of Action (fraud and fraudulent concealment); and (d) attorneys' fees and costs pursuant to FAA § 9.4.
The seven causes of action asserted in the Complaint are as follows:
1. First Cause of Action — Common-Law Fraud: Vantor made material misrepresentations of fact in delivering inflated valuations that it knew to be false, with the intent that Ironside would rely upon them in calculating NAVs, and Ironside did justifiably rely thereon to its detriment.
2. Second Cause of Action — Fraudulent Concealment: Vantor concealed material facts — including the use of stale broker quotes, undisclosed internal "model adjustments," and internal communications documenting knowledge that marks were inflated — with the intent to deceive Ironside.
3. Third Cause of Action — Negligent Misrepresentation: Vantor, as a professional fund administrator with a special relationship with Ironside, owed a duty of care in providing accurate valuations, negligently misrepresented the fair value of the subject positions, and Ironside justifiably relied thereon.
4. Fourth Cause of Action — Breach of Contract: Vantor materially breached FAA §§ 3.1 (Standard of Care) and 4.2 (Valuation Services) by failing to perform valuations in accordance with GAAP, the Ironside Valuation Policy v.3.2, and the standard of care of a reasonably prudent professional fund administrator.
5. Fifth Cause of Action — Breach of Fiduciary Duty: Vantor, by virtue of its discretionary authority over asset pricing and its role as an independent check on portfolio valuations, owed fiduciary duties to Ironside, which it breached through the conduct described herein.
6. Sixth Cause of Action — Aiding and Abetting Fraud: Vantor, through its corporate officers Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations), knowingly aided and abetted the fraudulent misvaluation scheme.
7. Seventh Cause of Action — Unjust Enrichment: Vantor was unjustly enriched by retaining approximately $9.28 million in fees paid over the life of the FAA (June 2017 through September 2023) for services that were fraudulently and negligently performed.
With respect to the procedural posture, Vantor filed its Motion to Dismiss on February 28, 2025, supported by a Memorandum of Law (approximately 38 pages) and a Declaration of Gregory Dane, Esq. attaching excerpts of the FAA, the First Amendment to the FAA dated March 1, 2019, and the Second Amendment to the FAA dated January 15, 2021. Vantor's memorandum of law was filed under the caption of a pre-answer motion pursuant to CPLR § 3211(a)(1) and (a)(7).
The current procedural timeline is as follows:
Our team is currently engaged in preparing the opposition brief and supporting materials, which will include a Memorandum of Law in Opposition and an Attorney Affirmation of Yuki Nakamura, with fourteen (14) documentary exhibits. We address each of Vantor's arguments in the sections that follow.
III. SUMMARY OF VANTOR'S FIVE MOTION TO DISMISS ARGUMENTS
Before turning to the detailed analysis, we provide a brief overview of the five grounds advanced by Vantor. Each is addressed comprehensively in Section IV.
Argument 1 — Fraud Claims Are Duplicative of Contract Claims and Fail to Satisfy CPLR § 3016(b) Particularity Requirements. Vantor contends that the First, Second, and Third Causes of Action merely repackage the breach of contract claim and do not allege a duty independent of the FAA. Vantor further argues that the fraud allegations lack the specificity required by CPLR § 3016(b). We assess this argument as presenting a low to moderate risk.
Argument 2 — Breach of Fiduciary Duty Fails Because Vantor Is Not a Fiduciary. Vantor argues that it is a contractual service provider — a fund administrator — and that the FAA establishes an arm's-length commercial relationship, not a fiduciary one. Vantor contends that New York law does not impose fiduciary duties on third-party service providers to hedge funds absent extraordinary circumstances. We assess this argument as presenting moderate to high risk, and note it is the most vulnerable of Ironside's claims.
Argument 3 — The Contractual Liability Cap in FAA § 9.3 Limits Vantor's Exposure to $2.98 Million. Vantor invokes the liability cap provision of FAA § 9.3, which limits Vantor's aggregate liability to two times the aggregate fees paid during the twelve-month period preceding termination (i.e., October 2022 through September 2023), yielding a cap of approximately $2.98 million. We assess this argument as presenting very low risk.
Argument 4 — Unjust Enrichment Is Precluded by the Existence of an Express Contract. Vantor argues that the Seventh Cause of Action for unjust enrichment must be dismissed because the FAA is a valid, enforceable contract governing the parties' relationship and the subject matter of the dispute. We assess this argument as presenting moderate risk, though the practical impact of losing this claim is minimal.
Argument 5 — The Economic Loss Doctrine Bars All Tort Claims. Vantor argues that all tort claims are barred because Ironside's alleged damages are purely economic losses arising from the contractual relationship, with no independent duty or personal injury. We assess this argument as presenting low risk.
We now turn to the detailed analysis.
IV. DETAILED ANALYSIS OF EACH ARGUMENT
A. Argument 1: Fraud Claims Are Duplicative of Contract Claims / CPLR § 3016(b) Particularity
1. Vantor's Position
Vantor's memorandum of law devotes approximately ten pages to the argument that the First Cause of Action (common-law fraud), the Second Cause of Action (fraudulent concealment), and the Third Cause of Action (negligent misrepresentation) are duplicative of the Fourth Cause of Action (breach of contract) and must therefore be dismissed. Vantor characterizes Ironside's fraud claims as nothing more than the breach of contract claim "dressed up in the language of fraud," asserting that the only "wrong" alleged is that Vantor failed to perform the valuation services in accordance with the FAA — which is, by definition, a breach of contract, not a tort.
In addition, Vantor argues that even if the fraud claims could theoretically be maintained as independent causes of action, the Complaint fails to plead fraud with the specificity required by CPLR § 3016(b). That provision mandates that "the circumstances constituting the wrong shall be stated in detail." Vantor asserts that the Complaint paints with an overly broad brush — alleging a generalized scheme of overvaluation without identifying, for each of the forty-seven positions, the specific fraudulent act, the specific misrepresentation, the date on which it was made, the identity of the person who made it, and the mechanism by which it was false. Vantor frames this as a "shotgun" approach that fails to give adequate notice of the specific fraudulent conduct alleged.
2. C&H's Assessment — Strength of Vantor's Argument: LOW TO MODERATE
We view this argument as weak, though it warrants a thorough and well-organized response. The distinction between fraud claims and breach of contract claims is well-established in New York law, and our Complaint was drafted with this distinction squarely in mind.
Under New York law, a fraud claim is not duplicative of a breach of contract claim where the plaintiff alleges either: (a) a misrepresentation of present fact that is collateral or extraneous to the contract — i.e., the defendant misrepresented existing facts rather than merely breaking a promise to perform in the future; or (b) a fraudulent intent that predates or is independent of the contract — i.e., the defendant entered into the contract without any intention of performing, or the defendant engaged in affirmative acts of deception that go beyond non-performance.
The Complaint satisfies both of these standards. Specifically, the Complaint identifies the following fraudulent conduct that is separate and distinct from mere non-performance of the FAA:
(a) Use of Stale Broker Quotes: Vantor systematically used broker quotes that were six to twelve months old in pricing illiquid credit positions, without disclosing to Ironside that the quotes were stale. This is not a failure to perform — it is an affirmative misrepresentation that the valuations reflected current market conditions when Vantor knew they did not.
(b) Internally Generated "Model Adjustments": Vantor applied undisclosed internal model adjustments that inflated marks by an average of 14.3% above observable inputs. These adjustments were not disclosed to Ironside and were not reflected in the valuation reports delivered to the funds. This constitutes an affirmative concealment of a material methodology deviation.
(c) Deliberate Failure to Apply Contractual Waterfall Valuation Procedures: The Ironside Valuation Policy v.3.2, incorporated by reference into the FAA, prescribes a multi-step waterfall for pricing Level 2 and Level 3 assets. Vantor deliberately bypassed the prescribed waterfall — not merely through negligence or oversight, but as a matter of practice, in order to maintain inflated marks that justified continued fee generation.
(d) Concealment of Internal Emails Documenting Knowledge of Inflation: The Complaint specifically references internal Vantor emails — obtained through the pre-suit subpoena served upon DataVault Solutions Inc., Vantor's cloud-hosted email and document retention service provider — in which Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations) acknowledge that certain marks were "significantly above where these would clear" and discuss strategies for avoiding detection by Ironside's internal review processes.
These allegations establish a "misrepresentation collateral or extraneous to the contract" — that is, affirmative misrepresentations and active concealment that go well beyond the mere breach of a contractual promise to provide accurate valuations. The fraud is not that Vantor failed to value the positions correctly; the fraud is that Vantor affirmatively represented to Ironside that the valuations were accurate, GAAP-compliant, and consistent with the Ironside Valuation Policy when Vantor knew they were not — and then took steps to conceal the discrepancies.
With respect to CPLR § 3016(b), the Complaint satisfies the particularity requirement by identifying the essential elements of the fraud with specificity:
• Who: Nathan Orris, SVP Valuation Services, and Deepa Rajaram, VP Client Valuation Operations, as the individual Vantor employees primarily responsible for the fraudulent valuations.
• What: Inflated valuations of forty-seven specifically identified positions across Fund I, Fund II, and Fund III, including the use of stale broker quotes, undisclosed model adjustments averaging 14.3% above observable inputs, and failure to apply the contractual waterfall methodology.
• When: Q1 2021 through Q3 2023 — eleven consecutive quarters — with peak overvaluation of $52.3 million in Q4 2022.
• Where: Valuations were delivered to Ironside for NAV calculation via Vantor's ValuTrack platform and through quarterly valuation reports transmitted by email.
• How: Specific methodology failures, including use of stale quotes, application of undisclosed model adjustments, and deliberate bypass of the Ironside Valuation Policy v.3.2 waterfall.
• Scienter: Concealment of internal emails evidencing awareness of inflation; Orris email dated September 14, 2022 stating marks were "significantly above where these would clear"; Rajaram email dated November 3, 2022 discussing "optics management" with respect to Ironside's quarterly review.
This level of specificity meets or exceeds the standard applied by Commercial Division judges under CPLR § 3016(b). We note that the standard is one of reasonable detail — the statute does not require the plaintiff to prove the fraud at the pleading stage, and courts routinely hold that § 3016(b) should not be applied so strictly as to prevent otherwise meritorious fraud claims from proceeding.
Commercial Division precedent further supports the proposition that fraud claims may survive alongside breach of contract claims where, as here, the defendant makes affirmative misrepresentations of present fact or actively conceals information that it has a duty to disclose. This is precisely what Ironside has alleged.
3. Risk Assessment
We assess a low risk of full dismissal of the common-law fraud claim (First Cause of Action). The allegations are specific, well-supported by documentary evidence referenced in the Complaint, and establish conduct that is plainly tortious and independent of the contractual obligation.
We assess a low to moderate risk with respect to the fraudulent concealment claim (Second Cause of Action). The court could, in theory, require greater specificity as to which particular concealed communications are at issue and the precise nature of the duty to disclose. However, the pre-suit subpoena to DataVault Solutions Inc. and the Vantor internal emails already referenced in the Complaint provide a strong factual foundation, and the duty to disclose arises both from the FAA (which requires Vantor to provide accurate, complete valuation information) and from the general duty not to actively conceal material information in a professional services relationship.
The negligent misrepresentation claim (Third Cause of Action) may face slightly higher scrutiny, particularly in combination with Vantor's economic loss doctrine argument (addressed in Section IV.E below). However, the claim should survive given that the Complaint alleges a "special relationship" arising from Vantor's role as an independent valuation agent upon whose work Ironside, its investors, and regulators relied.
4. Proposed Opposition Strategy
In our opposition brief, we intend to pursue the following strategy with respect to this argument:
• Emphasize the distinction between fraud and breach of contract. The fraud claims rest on affirmative misrepresentations of present fact — i.e., Vantor delivered valuations and represented them as accurate, GAAP-compliant, and consistent with the Ironside Valuation Policy v.3.2 when Vantor knew they were not. These are not "broken promises" — they are lies about existing conditions. We will cite the leading Commercial Division authorities distinguishing fraud from contract in the financial services context.
• Highlight the specificity of the Complaint. We will walk the court through the forty-seven identified positions, the average 14.3% mark inflation, the identified Vantor personnel (Orris and Rajaram), the specific quarters, and the internal emails demonstrating scienter. We will argue that the Complaint meets or exceeds the standard required under CPLR § 3016(b).
• Emphasize the active concealment. The concealment of internal emails documenting awareness that marks were inflated is conduct that goes beyond non-performance of a contract — it is an independent tort. We will argue that fraudulent concealment is, by definition, distinct from breach of contract because it involves a deliberate decision to hide information, not a failure to perform.
• Cite supporting precedent. We will rely on the extensive body of Commercial Division case law recognizing that fraud claims survive alongside contract claims where the defendant made affirmative misrepresentations of present fact or engaged in active concealment.
B. Argument 2: Breach of Fiduciary Duty Fails — Vantor Is Not a Fiduciary
1. Vantor's Position
Vantor devotes approximately eight pages of its memorandum to the argument that the Fifth Cause of Action (breach of fiduciary duty) must be dismissed because Vantor is a contractual service provider — specifically, a fund administrator — and not a fiduciary. Vantor characterizes the FAA as establishing an arm's-length commercial relationship between sophisticated parties, and argues that New York law does not impose fiduciary duties on third-party service providers to hedge funds absent extraordinary circumstances not present here.
Vantor relies on the general principle that a fiduciary relationship requires a higher degree of trust and confidence than that which exists in an ordinary contractual arrangement between sophisticated commercial actors. Vantor argues that the FAA itself demonstrates the arm's-length nature of the relationship: the agreement was negotiated between represented parties, contains detailed provisions allocating risk and liability, includes a limitation of liability clause, and does not contain any language creating or acknowledging a fiduciary relationship.
Vantor further argues that Ironside, as a sophisticated fund manager, cannot credibly claim that it reposed the kind of trust and confidence in its fund administrator that would give rise to fiduciary duties. Vantor characterizes its role as essentially ministerial — receiving trade data, applying pricing from third-party vendors, and delivering reports — and dismisses the suggestion that it exercised independent discretion over asset pricing.
2. C&H's Assessment — Strength of Vantor's Argument: MODERATE TO HIGH
We assess this as the most vulnerable of Ironside's claims, and we want to provide the Ironside team with a candid assessment of the risks.
As a general matter, New York courts have been reluctant to impose fiduciary duties on contractual counterparties — including professional service providers — absent a relationship of trust and confidence that goes beyond the ordinary commercial arrangement. The mere existence of a contractual obligation to provide services, even specialized professional services, does not automatically give rise to a fiduciary duty. Courts have repeatedly held that where parties deal at arm's length and memorialize their respective obligations in a written agreement, the relationship is governed by contract, not fiduciary principles.
However, there is a meaningful distinction between a ministerial service provider and one that exercises independent discretion over matters of critical importance to the client. Our position — and the basis for the Fifth Cause of Action — is that Vantor's role went far beyond ministerial processing. Under FAA § 4.2 (Valuation Services), Vantor was vested with independent discretion in pricing Level 2 and Level 3 assets. These are, by definition, illiquid and hard-to-price assets for which there are no readily available market quotations. Vantor did not simply input publicly available prices into a spreadsheet; it exercised professional judgment — selecting pricing sources, applying valuation models, determining when to use broker quotes versus model-based marks, and making Level 2/Level 3 classifications — all of which directly determined the NAVs upon which Ironside, its investors, and regulators relied.
Moreover, FAA § 3.1 required Vantor to perform its services in accordance with the standard of care of a "reasonably prudent professional fund administrator" and to comply with GAAP and the Ironside Valuation Policy v.3.2. These provisions, combined with Vantor's representations to Ironside and its limited partners that it served as an independent check on portfolio valuations, gave rise to a relationship that was more akin to fiduciary trust than a simple vendor arrangement.
The distinction between ministerial and discretionary functions is the critical issue. Where a fund administrator exercises independent judgment in valuing illiquid and hard-to-price assets — particularly where the fund, its investors, and regulators rely upon the administrator's independence — the argument for fiduciary status is considerably stronger than for a bookkeeping service that merely records transactions. We believe we can make a persuasive case for this distinction, though we acknowledge that the outcome is uncertain.
3. Risk Assessment
We assess a moderate to high risk of dismissal of the Fifth Cause of Action. The general reluctance of New York courts to impose fiduciary duties on contractual counterparties presents a significant headwind. Vantor will cite a number of cases in which courts declined to find fiduciary relationships between fund managers and their service providers, and those cases are not easily distinguishable.
That said, we believe there are strong arguments for survival on a motion to dismiss standard, which requires the court to accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Whether a fiduciary duty exists is often characterized as a fact-intensive inquiry that is inappropriate for resolution on a pre-answer motion, and we will press that argument vigorously.
Importantly, even if the Fifth Cause of Action is dismissed, the practical impact on Ironside's case is limited. The same universe of damages is recoverable through the surviving breach of contract and fraud claims. The breach of fiduciary duty claim does not open up a separate category of damages that would otherwise be unavailable. The primary benefit of maintaining the fiduciary duty claim is that it provides an additional legal theory and may carry persuasive weight with the factfinder at trial; but the loss of this claim would not materially alter the case's value or trajectory.
4. Proposed Opposition Strategy
• Argue that the existence of a fiduciary duty is a fact-intensive question. We will urge the court to find that the question of whether Vantor owed fiduciary duties to Ironside cannot be resolved on a CPLR § 3211 motion, where the court must accept all well-pleaded factual allegations as true. The nature and extent of Vantor's discretion, the degree of trust and reliance, and the representations made by Vantor are all questions that require a developed factual record.
• Emphasize Vantor's discretionary valuation authority. We will focus on FAA § 4.2 and the specific scope of Vantor's valuation responsibilities, highlighting that Vantor was not a passive inputter of publicly available data but rather an active decision-maker exercising professional judgment over the pricing of illiquid and hard-to-price assets.
• Highlight the degree of reliance. We will emphasize that Ironside, its limited partners (including institutional investors such as Ashford Endowment Partners LP), and regulators relied upon Vantor's independence and accuracy. Vantor held itself out as an independent check on portfolio valuations — a role that inherently carries fiduciary-like obligations.
• Cite cases recognizing fiduciary duties in analogous contexts. We will identify and cite cases in which courts have recognized fiduciary duties arising from professional relationships involving discretionary authority over client assets or financial information, including in the fund administration and audit contexts.
• Preserve the issue for appeal if necessary. Even if the court dismisses this claim, we will ensure the record is clear for purposes of any potential appeal.
C. Argument 3: Contractual Liability Cap (FAA § 9.3) Limits Damages to $2.98 Million
1. Vantor's Position
Vantor's third argument invokes the contractual liability cap contained in FAA § 9.3. That provision states, in relevant part:
"Notwithstanding anything to the contrary herein, the aggregate liability of the Administrator to the Client under or in connection with this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed an amount equal to two (2) times the aggregate Fees paid by the Client to the Administrator during the twelve (12) month period immediately preceding the date of the event giving rise to such liability."
Vantor calculates the applicable cap as follows: aggregate fees paid during the twelve-month period preceding termination — i.e., October 2022 through September 2023 — totaled approximately $1.49 million. Two times that amount equals $2.98 million. Vantor argues that this cap applies to all claims asserted in the Complaint, including the fraud claims, and that it represents the freely negotiated allocation of risk between two sophisticated commercial actors represented by counsel.
Vantor frames its argument in terms of freedom of contract, arguing that sophisticated parties are entitled to allocate risk as they see fit, and that courts should not second-guess a bargained-for limitation of liability simply because the resulting cap appears small relative to the claimed damages. Vantor cites several general precedents upholding contractual limitations of liability between commercial parties.
2. C&H's Assessment — Strength of Vantor's Argument: LOW
This is one of the weakest arguments in Vantor's motion, and we are confident it will not succeed at the pleading stage.
New York law is well established that contractual limitations on liability — including liability caps and exculpation clauses — are unenforceable with respect to claims sounding in fraud, willful misconduct, or gross negligence as a matter of public policy. This principle is deeply rooted in New York jurisprudence and reflects the policy judgment that parties should not be permitted to contract for immunity from the consequences of their own intentional wrongdoing. A contractual provision that purports to limit liability for fraud would, in effect, create a license to defraud — which is precisely the outcome the law prohibits.
Moreover, the FAA itself contains provisions that are internally inconsistent with the application of the § 9.3 cap to fraud claims. Specifically, FAA § 9.1 provides that Vantor agreed to indemnify Ironside for losses arising from Vantor's "negligence, fraud, willful misconduct, or material breach." This indemnification obligation — which expressly encompasses fraud — is fundamentally inconsistent with the notion that the § 9.3 cap was intended to limit Vantor's exposure for fraudulent conduct. If the parties intended the cap to apply to fraud, then the indemnification obligation for fraud in § 9.1 would be meaningless, because the indemnity could never exceed $2.98 million regardless of the magnitude of the fraud. Principles of contract construction require that the court give effect to all provisions of the contract and avoid interpretations that render any provision superfluous. Reading §§ 9.1 and 9.3 together, the most natural interpretation is that the cap applies to claims arising from negligence and ordinary breach, but not to claims arising from fraud or willful misconduct.
The gross disproportion between the cap ($2.98 million) and the actual damages ($287 million) further undermines Vantor's argument. While disproportionality alone may not invalidate a liability cap, courts are especially skeptical of caps that bear no reasonable relationship to foreseeable losses in the context of intentional misconduct. Total fees paid over the life of the FAA (June 2017 through September 2023) were approximately $9.28 million — meaning the cap represents less than one-third of total fees and approximately 1% of actual losses.
Finally, and critically, at the motion to dismiss stage, the court must accept as true Ironside's well-pleaded allegations of fraud and willful misconduct. The enforceability of the cap cannot be determined as a matter of law at this juncture because the applicability of the cap depends on the ultimate resolution of the fraud allegations. If Vantor committed fraud — as Ironside alleges and as the court must assume at the pleading stage — then the cap is unenforceable. It would be premature and procedurally improper for the court to apply the cap at this stage.
3. Risk Assessment
We assess a very low risk of dismissal on this ground. The court is highly unlikely to apply the liability cap to fraud and willful misconduct claims at the motion to dismiss stage. Even with respect to the breach of contract claim standing alone, the enforceability of the cap may present triable issues of fact and contract interpretation that cannot be resolved on a pre-answer motion.
We note that this argument may resurface at later stages of the litigation — particularly at summary judgment — but even then, if Ironside can demonstrate fraud or willful misconduct, the cap will be unenforceable.
4. Proposed Opposition Strategy
• Cite controlling New York precedent. We will cite the established body of New York case law holding that contractual liability limitations are void as against public policy when fraud or willful misconduct is established. This is well-settled law and should be dispositive.
• Argue prematurity. We will argue that the cap is, at minimum, inapplicable at the pleading stage, where the court must accept Ironside's fraud allegations as true. The question of whether the cap applies cannot be determined until the underlying factual issues are resolved.
• Highlight the internal inconsistency within the FAA. We will argue that § 9.1 (indemnification for fraud) and § 9.3 (liability cap) must be read together, and that the fraud-specific indemnity obligation in § 9.1 demonstrates that the parties intended the cap not to apply to fraud-based losses. We will invoke the principle of contract construction that every provision must be given effect.
• Note the gross disproportion. We will highlight the $2.98 million cap versus $287 million in actual losses and argue that applying the cap in the context of intentional fraud would be unconscionable and contrary to public policy.
D. Argument 4: Unjust Enrichment Is Precluded by Express Contract
1. Vantor's Position
Vantor's fourth argument targets the Seventh Cause of Action (unjust enrichment), contending that this claim must be dismissed because there exists an express, written contract — the FAA — governing the subject matter of the parties' dispute. Vantor relies on the well-established New York principle that the doctrine of unjust enrichment is not available where a valid and enforceable contract exists between the parties covering the same subject matter. Vantor characterizes the unjust enrichment claim as an improper attempt to circumvent the contractual framework — including the liability cap in § 9.3 — by repackaging the same conduct and damages under an equitable theory.
2. C&H's Assessment — Strength of Vantor's Argument: MODERATE
Vantor is correct as a general proposition. It is black-letter New York law that unjust enrichment does not lie where a valid, enforceable contract exists between the parties covering the same subject matter. The rationale is straightforward: where the parties have defined their obligations by agreement, the law will enforce the agreement rather than impose quasi-contractual obligations that the parties did not bargain for.
However, the Complaint pleads unjust enrichment in the alternative, which is expressly permitted under CPLR § 3014. This is standard practice in commercial litigation in New York, particularly where the enforceability or scope of the contract is in dispute. Courts routinely allow alternative pleading of equitable claims alongside contract claims at the pleading stage, reserving the question of whether the equitable claim is precluded for summary judgment or trial, when the scope and enforceability of the contract can be fully assessed.
Here, there are additional reasons to permit the unjust enrichment claim to proceed. Vantor itself has placed the contract's terms at issue by invoking the § 9.3 liability cap. If the court were ultimately to determine that the FAA does not cover certain aspects of Vantor's conduct — for example, the concealment of internal emails, the application of undisclosed model adjustments that fell outside the scope of services described in the FAA, or conduct that occurred after the FAA was terminated — then unjust enrichment would provide a basis for recovery as to those elements. Moreover, if the court were to find the FAA unenforceable in whole or in part (for example, due to fraud in the inducement), unjust enrichment would be the appropriate vehicle for recovering fees paid for fraudulent services.
We also note that the unjust enrichment claim captures a discrete category of relief: the disgorgement of the approximately $9.28 million in fees that Vantor retained over the life of the FAA for services that were fraudulently performed. While these fees may also be recoverable as an element of consequential damages under the contract or fraud claims, the unjust enrichment claim provides an independent equitable basis for disgorgement that does not depend on the enforceability of any particular contractual provision.
3. Risk Assessment
We assess a moderate risk of dismissal of the Seventh Cause of Action. Some Commercial Division judges have been willing to dismiss unjust enrichment claims at the pleading stage where the existence and validity of the underlying contract is undisputed. However, many other judges in the Commercial Division routinely permit alternative pleading of equitable claims, deferring the preclusion question to summary judgment. The outcome on this point may depend in part on Judge Torrance's individual preferences and practices.
Even if dismissed, the loss of the unjust enrichment claim is not material to the overall case. The same damages — and, indeed, greater damages — are recoverable through the surviving breach of contract and fraud claims. The unjust enrichment claim is a supplemental theory, not a core claim.
4. Proposed Opposition Strategy
• Emphasize the permissibility of alternative pleading. We will cite CPLR § 3014 and the extensive body of Commercial Division precedent authorizing alternative pleading of equitable claims alongside contract claims.
• Argue that the scope of the FAA remains contested. We will point out that Vantor itself has placed the contract's terms and scope at issue — by invoking the § 9.3 liability cap and by characterizing its role under the FAA as narrower than Ironside alleges. Where the scope and enforceability of the contract are genuinely in dispute, dismissal of the equitable alternative is premature.
• Highlight the disgorgement rationale. We will argue that unjust enrichment captures the approximately $9.28 million in fees Vantor retained for fraudulently performed services, providing an independent equitable basis for disgorgement. Even if the contract is ultimately found enforceable on other grounds, equity may require the return of fees earned through fraud.
• Preserve the claim for later stages. If the court is inclined to dismiss the unjust enrichment claim, we will argue in the alternative that dismissal should be without prejudice, with leave to replead if subsequent developments (e.g., Vantor's answer asserting affirmative defenses challenging the FAA's enforceability) establish that the equitable claim is viable.
E. Argument 5: Economic Loss Doctrine Bars Tort Claims
1. Vantor's Position
Vantor's fifth and final argument invokes New York's economic loss doctrine. Vantor contends that all tort claims — fraud (First Cause of Action), fraudulent concealment (Second Cause of Action), negligent misrepresentation (Third Cause of Action), and breach of fiduciary duty (Fifth Cause of Action) — are barred because Ironside's alleged damages are purely economic losses arising from the contractual relationship, with no independent duty, no personal injury, and no property damage. Vantor argues that permitting tort recovery for purely economic losses that arise from a contractual relationship would undermine the certainty and predictability of commercial contracts, and that the proper remedy is a breach of contract claim — which Ironside has already asserted.
Vantor relies on a line of cases applying the economic loss doctrine to bar negligence-based tort claims where the damages consist solely of the loss of the benefit of the bargain.
2. C&H's Assessment — Strength of Vantor's Argument: LOW
This is a weak argument, and we are confident it will not result in the dismissal of the fraud claims. The economic loss doctrine, as applied in New York, is considerably narrower than Vantor suggests, and its invocation in this context reflects a mischaracterization of the governing law.
New York's economic loss doctrine does not bar fraud claims. The doctrine operates to bar recovery in tort for purely economic losses in the context of negligence and strict products liability claims — principally in the products liability and construction contexts — where the plaintiff's only injury is the loss of the benefit of the bargain. The doctrine does not apply to intentional torts, including fraud and fraudulent concealment. New York courts have consistently and explicitly held that the economic loss doctrine does not bar claims for fraud, fraudulent misrepresentation, or fraudulent concealment, regardless of whether the damages are purely economic. The policy rationale is straightforward: a party that commits fraud should not be able to shield itself from tort liability simply because the fraud happened to occur in the context of a contractual relationship.
Moreover, even in the negligence context, the economic loss doctrine is subject to the "special relationship" exception. Under this exception, a plaintiff may recover in tort for purely economic losses caused by negligent misrepresentation where the defendant and the plaintiff share a "special relationship" — typically defined as a relationship in which: (a) the defendant is in the business of providing information for the guidance of others; (b) the defendant is aware that the plaintiff will rely on the information; and (c) the defendant has some relationship with the plaintiff importing a duty of care.
Here, Vantor — as a professional fund administrator — was in the business of providing valuation information for the guidance of Ironside, its investors, and regulators. Vantor was aware that its valuations would be relied upon in calculating NAVs, processing investor subscriptions and redemptions, preparing financial statements, and filing regulatory reports. Vantor had a professional relationship with Ironside that imported a duty of care. These are the classic hallmarks of a "special relationship," and the negligent misrepresentation claim (Third Cause of Action) falls squarely within the exception.
The economic loss doctrine is further inapplicable in this case because the alleged damages extend beyond the contract expectancy. The Complaint alleges harm to third parties — including limited partners who subscribed and redeemed at inflated NAVs, and Ironside's own reputational standing with institutional investors and regulators. These losses are not merely the loss of the benefit of the bargain; they are independent harms caused by tortious conduct.
3. Risk Assessment
We assess a low risk of dismissal of the fraud-based tort claims (First and Second Causes of Action) on economic loss grounds. This argument is contrary to well-established New York law and should be disposed of straightforwardly.
The negligent misrepresentation claim (Third Cause of Action) may face somewhat more scrutiny under the economic loss doctrine, but the "special relationship" exception is well-established for professional service providers who provide information for the guidance of others. We are confident this claim will survive as well.
The application of the economic loss doctrine to the breach of fiduciary duty claim (Fifth Cause of Action) is largely academic, as that claim faces the more significant challenge discussed in Section IV.B above (whether Vantor is a fiduciary at all). If the court finds a fiduciary relationship exists, the economic loss doctrine would not bar the claim; if the court finds no fiduciary relationship, the claim would be dismissed on that ground regardless.
4. Proposed Opposition Strategy
• Establish that the economic loss doctrine is inapplicable to intentional torts. We will cite the controlling New York authorities holding that the economic loss doctrine does not bar claims for fraud, fraudulent misrepresentation, or fraudulent concealment. This is black-letter law and should require minimal briefing.
• Establish the "special relationship" for the negligent misrepresentation claim. We will set forth the elements of the special relationship between Vantor and Ironside: Vantor was in the business of providing valuation information; Vantor was aware its valuations would be relied upon by Ironside, its investors, and regulators; Vantor had superior information and expertise regarding the pricing of illiquid assets; and Ironside justifiably relied on Vantor's independence and accuracy.
• Distinguish Vantor's authorities. Vantor's cited cases likely involve simple negligence in contractual performance, products liability, or construction disputes — contexts far removed from the professional services and intentional fraud at issue here. We will distinguish those cases on their facts and legal context.
• Highlight the breadth of the damages. We will argue that Ironside's damages extend beyond the contract expectancy and include harm to third parties (limited partners, redeeming investors, regulators), further placing this case outside the scope of the economic loss doctrine.
V. OVERALL RISK ASSESSMENT AND RECOMMENDATION
A. Summary Table
The following table summarizes our assessment of the risk of dismissal for each of Ironside's seven causes of action:
B. Overall Assessment
The core claims in this case — breach of contract (Fourth Cause of Action) and common-law fraud (First Cause of Action) — are very likely to survive the motion to dismiss. These claims carry the vast majority of the approximately $287 million in direct damages and form the backbone of Ironside's case. The breach of contract claim is well-supported by the specific provisions of the FAA (§§ 3.1 and 4.2) and the detailed factual allegations in the Complaint. The fraud claim is supported by specific allegations of affirmative misrepresentations and concealment, identified with particularity as to the who, what, when, where, how, and scienter.
The claims at greatest risk are the breach of fiduciary duty (Fifth Cause of Action) and unjust enrichment (Seventh Cause of Action). With respect to fiduciary duty, the general reluctance of New York courts to impose fiduciary duties on contractual service providers presents a significant challenge, though we believe the fact-intensive nature of the inquiry may be sufficient to survive a motion to dismiss. With respect to unjust enrichment, Vantor's argument has a reasonable basis in the law, though alternative pleading is expressly authorized and widely practiced.
Critically, even if both the fiduciary duty and unjust enrichment claims are dismissed, the practical impact on Ironside's case is limited. The same universe of damages — including the full $287 million in direct losses — is recoverable through the surviving contract and fraud claims. Punitive damages, which are sought on the fraud counts, are entirely unaffected by Vantor's motion. The liability cap argument (FAA § 9.3) poses no meaningful threat at this stage or, we believe, at any stage where fraud is established.
The aiding and abetting fraud claim (Sixth Cause of Action) is derivative of the fraud claims: if the underlying fraud claims survive — as we expect they will — the aiding and abetting claim should survive as well. Vantor's memorandum does not devote significant attention to the aiding and abetting claim as an independent target, which suggests WDC recognizes its dependence on the resolution of the fraud arguments.
In sum, we expect Ironside to emerge from this motion with its core claims intact and its case positioned for discovery. The most realistic adverse outcome is the dismissal of one or two secondary claims, which would not materially affect the trajectory or value of the litigation.
C. Recommended Course of Action
Based on the foregoing analysis, Calderwood & Harkness recommends the following course of action:
1. File a robust opposition brief by March 21, 2025. The opposition will consist of a Memorandum of Law in Opposition to Defendant's Motion to Dismiss, supported by an Attorney Affirmation of Yuki Nakamura attaching fourteen (14) documentary exhibits. The exhibits will include excerpts of the FAA and the First and Second Amendments thereto, selected Vantor internal emails obtained via the pre-suit subpoena served upon DataVault Solutions Inc., a summary of the preliminary report of Ironside's valuation expert Harmon-Bryce Consulting LLC, a summary of the damages report prepared by Kessler Economics Group, and key correspondence between the parties.
2. Defend all seven causes of action. We will vigorously defend all seven causes of action in the opposition brief. However, consistent with our risk assessment, we will allocate our briefing resources to invest the greatest effort in preserving the fraud and contract claims (which face the lowest risk of dismissal and carry the most significant damages), while making the strongest possible arguments for the fiduciary duty claim.
3. Prepare for oral argument. Calderwood & Harkness will prepare a comprehensive bench memo and talking points for Samuel Eklund, who will argue the opposition at the April 14, 2025 oral argument before Judge Torrance. The bench memo will address each of Vantor's arguments, anticipate likely questions from the court, and provide concise responses. We will also prepare a brief summary of key exhibits for easy reference during argument.
4. Client attendance at oral argument. We recommend that Elliot Brennan and Rajiv Subramanian be available to attend the April 14, 2025 oral argument. While they are not expected to speak, their presence in the courtroom demonstrates the seriousness with which Ironside takes this matter and may be noted by the court. We will coordinate logistics with Katherine Lim.
VI. ANTICIPATED NEXT STEPS AND TIMELINE
The following is the anticipated timeline of events in the near term:
March 21, 2025 — Ironside's Opposition Brief Filed. Calderwood & Harkness will file the Memorandum of Law in Opposition to Defendant's Motion to Dismiss, together with the Nakamura Affirmation and fourteen (14) documentary exhibits. A draft of the opposition brief will be circulated to the Ironside team for review no later than March 17, 2025. We ask that any comments be provided by close of business on March 19, 2025, to allow sufficient time for finalization and filing.
Approximately April 4, 2025 — Vantor's Reply Brief. We anticipate that Vantor will file a reply brief approximately two weeks after our opposition. We will review the reply closely upon receipt and alert the Ironside team to any new arguments or unexpected positions.
Week of April 7, 2025 — Pre-Argument Preparation. Calderwood & Harkness will circulate the bench memo, talking points, and logistical details for the oral argument. If Vantor raises new arguments in its reply — for example, a Martin Act preemption argument or a new documentary evidence argument under CPLR § 3211(a)(1) that was not raised in the opening brief — we may seek leave to file a short sur-reply letter brief. We will assess that need promptly upon receipt of Vantor's reply and confer with the Ironside team.
April 14, 2025 — Oral Argument. Oral argument on the Motion to Dismiss will take place before the Honorable Richard Torrance, J.S.C., in the Commercial Division, New York County. Samuel Eklund will argue on behalf of Ironside. We anticipate argument will last approximately one hour. We recommend that Elliot Brennan and Rajiv Subramanian attend.
Post-Oral Argument — If Motion Is Denied (Expected Outcome). If the motion is denied in whole or in substantial part — which we expect — Vantor will have twenty (20) days from the date of the order to serve an answer. Upon receipt of Vantor's answer, Calderwood & Harkness will immediately serve the First Set of Document Requests (52 requests) and the First Set of Interrogatories (25 interrogatories), both of which are already in advanced draft form.
We anticipate proposing the following discovery schedule to the court, either by stipulation with WDC or by application to Judge Torrance:
This timeline is aggressive but realistic for a case of this magnitude in the Commercial Division. We will keep the Ironside team apprised of all developments and will confer with Katherine Lim and Rajiv Subramanian as needed regarding document collection and production obligations that will arise during the fact discovery phase.
VII. COSTS AND BUDGETING NOTE
A comprehensive Q1 2025 Quarterly Litigation Budget and Fee Report is being prepared separately by Linda Osei and will be transmitted directly to Katherine Lim and Rajiv Subramanian under separate cover. That report will provide a detailed breakdown of fees and costs incurred to date, projected expenditures for the remainder of Q1 and Q2 2025, and updated case budget projections.
For purposes of this memorandum, we note that the costs associated with the opposition briefing, affirmation preparation, exhibit compilation, and oral argument preparation for this motion are estimated at approximately $175,000 to $225,000 in professional fees. This estimate reflects the anticipated time contributions of all four members of the Calderwood & Harkness litigation team:
These estimates are subject to adjustment based on the scope of Vantor's reply brief and any additional issues that may arise during the briefing process. We will promptly notify Katherine Lim if we anticipate exceeding the high end of this range.
We confirm that the $500,000 evergreen retainer currently held by Calderwood & Harkness remains in good standing and is fully funded.
VIII. REQUEST FOR CLIENT INPUT
We respectfully request that the Ironside team review the foregoing analysis and provide any additional factual context, documents, or insights that may strengthen our opposition to Vantor's motion. In particular, the following items would be of significant value to the team's preparation:
1. Additional Internal Ironside Communications (July–October 2023). Any internal Ironside memoranda, emails, instant messages, or other communications from the period of July through October 2023 that document interactions between Ironside personnel and Vantor personnel — particularly Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations) — regarding valuation discrepancies, methodology questions, or concerns about the accuracy of Vantor's pricing. These communications may be relevant to establishing the timeline of discovery of the fraud and to countering any argument that Ironside was aware of or acquiesced in Vantor's valuation methodology.
2. Confirmation of the $12.6 Million CLO Equity Discrepancy. We ask Rajiv Subramanian to confirm the details of the $12.6 million discrepancy he identified in July 2023 on seven CLO equity positions through a comparison with pricing indications provided by Dana Crossley at Northpoint Securities LLC. Specifically, we would appreciate confirmation of: (a) the exact date on which the discrepancy was first identified; (b) the seven positions involved (CUSIP, issuer, tranche); (c) the magnitude of the discrepancy on a position-by-position basis; and (d) any written communications with Vantor or Northpoint regarding the discrepancy. This is a critical fact that underpins the scienter allegations in the Complaint.
3. Communications from Limited Partners. Any communications received from Ashford Endowment Partners LP (Philip Ashford III), or from any other limited partners, regarding the misvaluation of fund positions, questions about NAV accuracy, or concerns about Vantor's performance. These communications may be relevant to the reliance and damages elements of the fraud claims and may also support the argument that Vantor's valuations were relied upon by third parties, strengthening the "special relationship" analysis for the negligent misrepresentation claim and the fiduciary duty argument.
Additionally, we ask that Elliot Brennan and Rajiv Subramanian confirm their availability to attend the oral argument on April 14, 2025. Please coordinate with our office as to scheduling.
We are happy to arrange a call or meeting at the Ironside team's convenience to discuss this memorandum and address any questions. Please do not hesitate to contact either Samuel Eklund or Yuki Nakamura to arrange.
IX. CONFIDENTIALITY NOTICE
This memorandum constitutes a privileged and confidential attorney-client communication and is protected by the attorney-client privilege and the attorney work product doctrine. It has been prepared by Calderwood & Harkness LLP solely for the use of the named recipients — Elliot Brennan, Marguerite Dao, and Katherine Lim of Ironside Capital Management LP — in connection with the above-referenced matter and for the sole purpose of providing legal advice and analysis.
This memorandum contains the mental impressions, conclusions, opinions, and legal theories of the attorneys at Calderwood & Harkness LLP and is entitled to the highest level of protection afforded by the work product doctrine.
The contents of this memorandum should not be disclosed, disseminated, distributed, or copied, in whole or in part, to any person or entity other than the named recipients without the prior written authorization of Calderwood & Harkness LLP. Any unauthorized disclosure may result in waiver of applicable privileges and protections. If you have received this memorandum in error, please contact the undersigned immediately.
CALDERWOOD & HARKNESS LLP
By: ________
Samuel Eklund Partner Direct: (212) 554-7100 seklund@calderwoodharkness.com
By: ________
Linda Osei Partner Direct: (212) 554-7245 losei@calderwoodharkness.com
Calderwood & Harkness LLP 51 West 52nd Street, 40th Floor New York, New York 10019 Main: (212) 554-7000
Fax: (212) 554-7001
cc: Yuki Nakamura, Senior Associate, Calderwood & Harkness LLP (internal) Carlos Espinoza, Associate, Calderwood & Harkness LLP (internal)
Event | Date
Verified Complaint filed | January 21, 2025
Vantor's Motion to Dismiss filed | February 28, 2025
Ironside's Opposition to Motion to Dismiss due | March 21, 2025
Vantor's Reply Brief (estimated) | ~April 4, 2025
Oral Argument before Hon. Richard Torrance, J.S.C. | April 14, 2025
Cause of Action | Vantor's Primary Argument | C&H Risk Assessment | Likely Outcome
First COA: Common-Law Fraud | Duplicative of contract / § 3016(b) | Low | Survives
Second COA: Fraudulent Concealment | Duplicative of contract / § 3016(b) | Low-Moderate | Likely survives; possible narrowing
Third COA: Negligent Misrepresentation | Economic loss doctrine / duplicative | Low-Moderate | Likely survives
Fourth COA: Breach of Contract | Liability cap (FAA § 9.3) | Very Low | Survives
Fifth COA: Breach of Fiduciary Duty | Vantor is not a fiduciary | Moderate-High | At risk; may be dismissed
Sixth COA: Aiding & Abetting Fraud | Derivative

CALDERWOOD & HARKNESS LLP Counselors at Law 51 West 52nd Street, 40th Floor New York, New York 10019

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

MEMORANDUM

I. EXECUTIVE SUMMARY

II. BACKGROUND AND PROCEDURAL POSTURE

III. SUMMARY OF VANTOR'S FIVE MOTION TO DISMISS ARGUMENTS

IV. DETAILED ANALYSIS OF EACH ARGUMENT

V. OVERALL RISK ASSESSMENT AND RECOMMENDATION

VI. ANTICIPATED NEXT STEPS AND TIMELINE

VII. COSTS AND BUDGETING NOTE

VIII. REQUEST FOR CLIENT INPUT

IX. CONFIDENTIALITY NOTICE

CALDERWOOD & HARKNESS LLP

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