1023-00002 · Ironside Capital Management LP · Motion Practice

bench-memo-oral-argument.docx DOCUMENT Litigation

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BENCH MEMO FOR ORAL ARGUMENT MOTION TO DISMISS

TO: Samuel Eklund, Responsible Partner

FROM: Yuki Nakamura, Lead Associate

RE: Oral Argument Preparation — Vantor Holdings Corp.'s Motion to Dismiss; Ironside Capital Management LP v. Vantor Holdings Corp., Index No. 650312/2025 (N.Y. Sup. Ct., Commercial Division, N.Y. County)

DATE: April 10, 2025

REVIEWED BY: Samuel Eklund

ARGUMENT DATE: April 14, 2025, before Hon. Richard Torrance, J.S.C.

This memorandum is prepared solely for use by attorneys of this firm in connection with the above-captioned matter. It constitutes attorney work product and is protected from disclosure by the attorney work product doctrine and the attorney-client privilege. This document should not be disclosed to any person outside the firm without prior authorization from the responsible partner.

I. INTRODUCTION AND PURPOSE

This bench memo is prepared for Samuel Eklund's use at oral argument on April 14, 2025, before the Honorable Richard Torrance, Justice of the Supreme Court, Commercial Division, New York County, on Vantor Holdings Corp.'s Motion to Dismiss filed on February 28, 2025, pursuant to CPLR § 3211(a)(1) (documentary evidence) and CPLR § 3211(a)(7) (failure to state a cause of action).

The briefing on the motion is now complete. Ironside Capital Management LP filed its opposition brief on March 21, 2025, together with the Affirmation of Yuki Nakamura and fourteen documentary exhibits in support. Vantor filed its reply brief on April 4, 2025. Notably, Vantor raised for the first time in its reply brief an argument that the Martin Act (N.Y. General Business Law Article 23-A) preempts Ironside's common-law fraud claims. Because this argument was not presented in the opening motion papers, Ironside had no opportunity to address it in opposition. Accordingly, a draft sur-reply letter brief dated April 9, 2025 has been prepared addressing the Martin Act preemption argument. Filing of the sur-reply is subject to the Court's permission, which we intend to request at argument or by letter application in advance if the Court's practice so requires.

The purpose of this memorandum is to provide a comprehensive roadmap for oral argument. It addresses each of Vantor's five principal arguments for dismissal, provides anticipated questions from the Court together with recommended responses, identifies and discusses key authorities with pinpoint citations, and sets forth rebuttal talking points organized by issue. The memorandum also addresses the new Martin Act preemption argument raised in the reply brief, and concludes with overarching strategic notes, a quick-reference table of authorities, and logistical details for the argument date.

Background on the Parties and the Dispute. Our client, Ironside Capital Management LP, is a Delaware limited partnership with its principal office at 680 Park Avenue, 34th Floor, New York, New York 10065. Ironside is a registered investment adviser managing approximately $4.2 billion in assets under management across multiple investment vehicles, with a particular focus on structured credit and distressed debt strategies. Ironside filed its Verified Complaint on January 21, 2025, asserting seven causes of action against Vantor Holdings Corp. ("Vantor"), a Delaware corporation with its principal office at 1400 Brickell Avenue, Suite 2200, Miami, Florida 33131. Vantor is a fund administration and valuation services firm that was retained by Ironside under a Fund Administration Agreement ("FAA") dated March 15, 2020, as amended.

The Verified Complaint arises from the systematic misvaluation of forty-seven (47) illiquid credit and structured-product positions across three feeder funds during the period from the first quarter of 2021 through the third quarter of 2023 — a span of eleven consecutive quarters. The alleged misvaluations resulted in aggregate losses of approximately $287 million in overstated net asset value, causing harm to Ironside, its limited partners (including institutional investors such as Ashford Endowment Partners LP), and the integrity of its regulatory filings. The Complaint was verified by Elliot Brennan, Co-Founder, Managing Partner, and Chief Investment Officer of Ironside.

Defense counsel in this matter is the firm of Whitfield, Dane & Corcoran LLP, 200 South Biscayne Boulevard, Suite 3600, Miami, Florida 33131. The Vantor defense team is led by Gregory Dane (lead partner), with Allison Breck (senior associate) and Jordan Mayhew (associate) also appearing.

II. PROCEDURAL POSTURE

The procedural history of this matter is as follows:

January 21, 2025: Ironside filed its Verified Complaint (87 paragraphs, seven causes of action), verified by Elliot Brennan, Co-Founder, Managing Partner, and Chief Investment Officer of Ironside. The seven causes of action asserted in the Complaint are:

Count I: Fraud (common law) — alleging that Vantor knowingly delivered materially false and inflated valuations of 47 illiquid positions, misrepresenting the net asset values of the funds to Ironside and its investors.

Count II: Fraudulent Concealment — alleging that Vantor concealed internal communications and documentation evidencing its awareness of the overvaluations, including emails between Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations) reflecting knowledge of inflated marks.

Count III: Negligent Misrepresentation — alleging that, to the extent any misstatements were not made with actual knowledge of their falsity, Vantor negligently misrepresented the accuracy of its valuations while occupying a position of trust and professional responsibility.

Count IV: Breach of Contract — alleging material breach of the Fund Administration Agreement, specifically Sections 3.1 (General Administration Obligations) and 4.2 (Independent Pricing and Valuation Services), by failing to perform valuation services in accordance with GAAP, the funds' stated valuation policies, and industry standards.

Count V: Breach of Fiduciary Duty — alleging that Vantor owed fiduciary duties to Ironside arising from its role as independent valuation agent exercising discretionary judgment over the pricing of illiquid assets, and that Vantor breached those duties through its knowing delivery of false valuations and concealment of material information.

Count VI: Aiding and Abetting Fraud (against Vantor corporate officers) — alleging that individual Vantor officers, including Raymond Kettler (CEO) and Susan Hargrove (COO), aided and abetted the fraud committed by Orris and Rajaram by supervising, ratifying, or failing to prevent the delivery of false valuations despite knowledge or reckless disregard of the inflated marks.

Count VII: Unjust Enrichment — alleging that Vantor was unjustly enriched by receipt of $9.28 million in total fees paid over the life of the FAA for valuation services that were fraudulently performed.

Damages Sought: The Complaint seeks compensatory damages of approximately $287 million (the aggregate overvaluation), consequential damages of approximately $50 million (comprising investor litigation defense costs, regulatory remediation expenses, and reputational harm), punitive damages on the fraud counts, and attorneys' fees pursuant to FAA § 9.4.

February 28, 2025: Vantor filed its Motion to Dismiss pursuant to CPLR § 3211(a)(1) (documentary evidence — specifically, the FAA and its amendments) and CPLR § 3211(a)(7) (failure to state a cause of action). The motion advances five principal arguments for dismissal, summarized in Section III below.

March 21, 2025: Ironside filed its opposition brief (45 pages), together with the Affirmation of Yuki Nakamura in Opposition to the Motion to Dismiss, attaching fourteen (14) documentary exhibits, including excerpts of the FAA and amendments, the internal Vantor emails obtained via pre-suit subpoena, the Harmon-Bryce Valuation Advisors LLC independent re-pricing report, and the Kessler Forensic Accounting Group PC damages analysis.

April 4, 2025: Vantor filed its reply brief. Notably, the reply brief raised for the first time an argument that the Martin Act preempts Ironside's common-law fraud claims. This argument was not included in the opening motion papers and Ironside has had no opportunity to brief it.

Standard of Review. The applicable standard of review at this stage is well settled. On a motion to dismiss under CPLR § 3211(a)(7), the court must afford the complaint a liberal construction, accept all facts alleged therein as true, and accord the plaintiff the benefit of every possible favorable inference. See Leon v. Martinez, 84 N.Y.2d 83, 87–88 (1994). The sole question is whether the factual allegations, accepted as true, manifest any cognizable cause of action. Id. On a motion to dismiss under CPLR § 3211(a)(1), the movant bears the burden of demonstrating that the documentary evidence "utterly refutes" the plaintiff's factual allegations and "conclusively establishes a defense as a matter of law." Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002). The documentary evidence must be "essentially undeniable" — that is, it must resolve all factual issues as a matter of law and definitively dispose of the plaintiff's claim. Id.

These are demanding standards for a movant to satisfy, particularly where, as here, the Complaint is detailed, well-pled, and supported by documentary evidence of its own.

III. SUMMARY OF VANTOR'S FIVE MTD ARGUMENTS

For quick reference at argument, Vantor's Motion to Dismiss advances the following five principal arguments, plus a new argument raised for the first time in the reply brief:

1. Fraud Claims Are Duplicative and Fail Particularity Requirements. Vantor contends that the fraud claims (Counts I and II) are duplicative of the breach of contract claim (Count IV) and fail to satisfy the heightened particularity requirements of CPLR § 3016(b).

2. Breach of Fiduciary Duty Fails Because Vantor Is Not a Fiduciary. Vantor argues that it is a contractual service provider, not a fiduciary, and that the FAA does not create or impose fiduciary obligations.

3. The FAA § 9.3 Liability Cap Limits All Damages to $2.98 Million. Vantor asserts that FAA § 9.3 caps its aggregate liability at two times the fees paid in the twelve months preceding termination — calculated as 2 × $1.49 million = $2.98 million — and that this cap applies to all claims, including fraud.

4. Unjust Enrichment Is Precluded by Express Contract. Vantor contends that the unjust enrichment claim (Count VII) cannot be maintained because the FAA is an express contract governing the same subject matter.

5. Economic Loss Doctrine Bars All Tort Claims. Vantor argues that all tort claims (Counts I, II, III, V, and VI) seek purely economic losses arising from a contractual relationship and are therefore barred by the economic loss doctrine.

6. Martin Act Preemption (New — Raised in Reply Brief). Vantor argues for the first time in its April 4, 2025 reply brief that the Martin Act preempts Ironside's common-law fraud claims because the alleged conduct arises in the securities context.

Each of these arguments is addressed in detail in Section IV below.

IV. ARGUMENT-BY-ARGUMENT ANALYSIS

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

IV.A.1. Vantor's Position

Vantor argues that the fraud claims (Counts I and II) are duplicative of the breach of contract claim (Count IV) and should be dismissed on that basis. The crux of Vantor's argument is that the fraud claims merely repackage the breach of contract claim — that is, they allege no more than Vantor's failure to perform its valuation services in accordance with FAA §§ 3.1 and 4.2 — and do not allege any duty independent of the contract that would support an independent fraud cause of action.

In addition, Vantor contends that even if the fraud claims are not duplicative, they fail to satisfy the heightened particularity requirements of CPLR § 3016(b), which requires that "the circumstances constituting the wrong shall be stated in detail." Vantor asserts that the Complaint does not identify specific misrepresentations with sufficient specificity as to dates, speakers, and audiences, and that the fraud allegations are impermissibly vague and conclusory.

IV.A.2. Our Rebuttal Talking Points

Vantor's argument mischaracterizes the nature of the fraud claims and ignores the detailed allegations in the Complaint. The following points should be made at argument:

The fraud claims are predicated on affirmative misrepresentation and active concealment — not merely on failure to perform contractual duties. The Complaint alleges that Vantor's personnel — specifically Nathan Orris, Senior Vice President of Valuation Services, and Deepa Rajaram, Vice President of Client Valuation Operations — knowingly used stale broker quotes (ranging from six to twelve months old) as purported market data, applied internally generated "model adjustments" that inflated marks by an average of 14.3% above observable market inputs, failed to apply the required waterfall valuation procedures set forth in the funds' valuation policies, and — critically — actively concealed internal email communications documenting their awareness that the marks they were delivering to Ironside were materially inflated. This is not a case of mere non-performance; it is a case of knowing, affirmative deception.

The fraud claims are not duplicative because they are based on a duty independent of the contract. Under well-established New York law, a fraud claim is not duplicative of a breach of contract claim where it is predicated on a duty that exists independently of the contractual obligations. See Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986). Here, the fraud claims are based on Vantor's affirmative misrepresentations of present fact — specifically, its representations that the valuations it delivered were accurate, conformed to GAAP, and reflected the funds' valuation policies — when Vantor knew those representations were false. The concealment of internal emails showing awareness of inflated marks is classic fraudulent concealment, which arises from a general duty not to deceive that exists independently of any contractual obligation. A party's failure to perform a contractual obligation is breach; a party's knowing delivery of false information while actively concealing evidence of its falsity is fraud. These are categorically different wrongs.

CPLR § 3016(b) particularity is satisfied. The Complaint identifies the fraud with the specificity required by CPLR § 3016(b). It identifies:

• Who: Nathan Orris, Deepa Rajaram, under the supervision of Raymond Kettler (CEO) and Susan Hargrove (COO);

• What: The submission of inflated net asset value calculations for forty-seven specifically identified positions across CLO equity tranches, bespoke CDO mezzanine notes, and distressed loan participations;

• When: Each of eleven quarters from Q1 2021 through Q3 2023;

• Where: Delivered to Ironside as part of quarterly NAV reporting at Ironside's New York offices and via electronic transmission;

• How: Through the use of stale broker quotes, application of undisclosed "model adjustments" inflating marks by an average of 14.3%, and concealment of internal communications documenting awareness of the inflation.

Specific example to emphasize at argument: The peak overvaluation occurred in Q4 2022, when aggregate overvaluation reached $52.3 million — overstating the funds' combined NAV by 8.6% in a single quarter. This is not a general or conclusory allegation; it is a precise, quantified assertion of fraud tied to a specific time period and measurable harm.

IV.A.3. Key Authorities

The following authorities should be cited in connection with this argument:

On the fraud/contract distinction:

• Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986) — The Court of Appeals held that a fraud claim is not duplicative of a breach of contract claim where it is based on a duty independent of the contract, such as the duty not to make knowing misrepresentations. This is the foundational authority on the fraud/contract distinction in New York.

• First Northpoint Securities v. Motor Car Funding, Inc., 257 A.D.2d 287, 291–92 (1st Dep't 1999) — The First Department held that where a defendant made specific misrepresentations of present fact that were collateral to its contractual promises of future performance, the fraud claim was independently actionable and survived alongside the breach of contract claim.

• Gosmile, Inc. v. Levine, 81 A.D.3d 77, 81 (1st Dep't 2010) — The First Department articulated the elements of a common-law fraud claim — (i) misrepresentation of material fact, (ii) falsity, (iii) scienter, (iv) reliance, and (v) injury — and confirmed that these elements are distinct from the elements of a breach of contract claim.

On CPLR § 3016(b) particularity:

• Eurycleia Partners, LP v. Padilla & Severin LLP, 12 N.Y.3d 553, 559 (2009) — The Court of Appeals held that CPLR § 3016(b) requires that "the circumstances constituting the wrong shall be stated in detail," but cautioned that the provision "should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud." The Court emphasized that the standard is met where the complaint gives the defendant sufficient notice of the transactions and occurrences at issue.

• Pludeman v. Northern Leasing Systems, Inc., 10 N.Y.3d 486, 492 (2008) — The Court of Appeals held that CPLR § 3016(b) is satisfied where the complaint identifies the specific persons who made the alleged misrepresentations, their content, and the time, place, and manner of the fraud. The Court specifically noted that § 3016(b) is not intended to require that a plaintiff identify every detail of the fraud at the pleading stage.

IV.A.4. Anticipated Court Questions

Q: "How does the fraud claim differ in substance from the breach of contract claim? Aren't you just saying Vantor didn't do its job properly?"

A: No, Your Honor. The distinction is fundamental. The breach of contract claim alleges that Vantor failed to perform its valuation obligations in accordance with the FAA. The fraud claims allege something categorically different — that Vantor affirmatively deceived Ironside. Vantor's personnel knowingly delivered inflated marks to Ironside as accurate valuations, while simultaneously concealing internal communications — the Orris-Rajaram emails — that documented their actual awareness that the marks were fabricated. A party that fails to perform a contract has breached an agreement. A party that lies about its performance — that affirmatively represents fabricated numbers as accurate while hiding the evidence of fabrication — has committed fraud. The duty not to deceive is independent of any contractual obligation to perform.

Moreover, the concealed emails — which were obtained via pre-suit subpoena to DataVault Solutions Inc. under CPLR § 3102(c) — demonstrate scienter that goes far beyond what would be required for a mere breach of contract claim. These emails show that Orris and Rajaram actually knew the marks were inflated and discussed the inflation internally. That evidence of scienter is what separates these fraud claims from a routine contract dispute.

Q: "Can you point to a specific allegation in the Complaint that goes beyond the contract?"

A: Yes, Your Honor. Several categories of allegations go beyond the contract. First, the allegations regarding Vantor's concealment of internal emails — the Orris and Rajaram correspondence — allege an independent duty not to deceive, not merely a duty to perform valuation services. The contract required Vantor to deliver accurate valuations; it did not require Vantor to hide evidence that those valuations were false. Second, the allegation that Vantor applied secret, undisclosed "model adjustments" that inflated marks by an average of 14.3% above observable inputs — without any disclosure to Ironside — goes beyond nonperformance into affirmative misrepresentation. Vantor did not simply fail to apply the correct methodology; it applied an incorrect methodology and then represented the results as accurate. That is an affirmative misrepresentation of present fact — that the delivered marks were the product of proper valuation procedures — which is actionable as fraud independent of any contractual claim.

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

IV.B.1. Vantor's Position

Vantor argues that the breach of fiduciary duty claim (Count V) should be dismissed because Vantor is an arm's-length contractual service provider and not a fiduciary. Vantor contends that the FAA is a standard commercial services agreement between sophisticated parties, that it does not designate Vantor as a fiduciary, and that no fiduciary relationship arises merely from the provision of fund administration services. Vantor relies on the general principle that conventional commercial relationships between independent parties do not give rise to fiduciary duties absent extraordinary circumstances.

IV.B.2. Our Rebuttal Talking Points

Vantor's argument, while invoking a correct general principle, ignores the specific facts and circumstances of its relationship with Ironside. The following points should be made:

The fiduciary duty claim is based on the particular nature of Vantor's role, not merely on the existence of a contractual relationship. Under the FAA, Vantor was not performing a purely ministerial function. FAA § 4.2 specifically charged Vantor with exercising independent discretionary judgment in pricing and valuing Level 2 and Level 3 assets — that is, illiquid positions with no readily observable market prices that require the exercise of professional judgment in selecting inputs, methodologies, and comparable reference points. Ironside was required by its own governing documents, its investor agreements, and applicable regulatory requirements to rely upon Vantor's independent valuations as the basis for its reported NAV. Vantor's role was not that of a mere bookkeeper or data entry service; it was an independent valuation agent entrusted with a critical gatekeeping function upon which Ironside, its limited partners, and regulators depended.

Under New York law, fiduciary obligations can arise from the specific facts and circumstances of a relationship. The absence of the word "fiduciary" from the FAA is not dispositive. New York courts have consistently held that fiduciary duties may arise from the particular facts and circumstances demonstrating that one party reposed trust and confidence in another, and that the other party assumed a position of superiority or dominance. See EBC I, Inc. v. Pinnacle National Bank, 5 N.Y.3d 11, 19–20 (2005). Here, the relationship between Ironside and Vantor was characterized by precisely the type of trust, reliance, and discretionary authority that can give rise to fiduciary obligations: Ironside entrusted Vantor with independent authority over the pricing of illiquid assets — a function upon which the reported value of the funds, investor capital account statements, and regulatory filings all depended. Vantor held itself out as an independent check on manager-provided marks, reinforcing the expectation of trust and reliability.

The scope of reliance extended beyond Ironside itself. Ironside's limited partners, including Ashford Endowment Partners LP (which committed $340 million to the funds), relied on Vantor's independent valuations in making investment and redemption decisions. Regulatory filings submitted to the SEC and other authorities incorporated Vantor's valuations. The breadth and depth of reliance on Vantor's work underscores the fiduciary character of the relationship.

Alternative argument — preservation for discovery. Even if the Court has questions about whether the relationship was fiduciary in nature, the claim should survive the motion to dismiss stage and be resolved on a fuller factual record after discovery regarding the nature and scope of Vantor's discretionary authority, the degree of reliance placed on its work, and the parties' course of dealing. The question of whether a fiduciary relationship exists is "typically a fact-intensive inquiry" that is "not suitable for resolution on a motion to dismiss." Roni LLC v. Arfa, 18 N.Y.3d 846, 848 (2011).

IV.B.3. Key Authorities

• EBC I, Inc. v. Pinnacle National Bank, 5 N.Y.3d 11, 19–20 (2005) — The Court of Appeals held that a fiduciary relationship can arise from facts and circumstances demonstrating trust and confidence, even absent a formal fiduciary designation. The relevant inquiry is whether one party reposed trust in another who assumed a superior position in the relationship.

• Northeast Gen. Corp. v. Wellington Advert., Inc., 82 N.Y.2d 158, 162 (1993) — The Court of Appeals held that a conventional business relationship does not give rise to fiduciary duties absent special circumstances involving control, dominance, or the reposing of trust and confidence. This case articulates the general rule but also confirms that "special circumstances" can transform an otherwise arm's-length relationship into one giving rise to fiduciary duties.

• Roni LLC v. Arfa, 18 N.Y.3d 846, 848 (2011) — The Court of Appeals held that the question of whether a fiduciary duty exists is "typically a fact-intensive inquiry" that is generally "not suitable for resolution on a motion to dismiss." This is a critical authority supporting preservation of Count V.

• WIT Holding Corp. v. Klein, 282 A.D.2d 527, 528 (2d Dep't 2001) — The Second Department held that a party entrusted with discretionary authority over financial affairs may owe fiduciary obligations even absent a formal advisory relationship. This case supports the proposition that Vantor's discretionary pricing authority over illiquid assets could give rise to fiduciary duties.

IV.B.4. Anticipated Court Questions

Q: "Isn't Vantor just a service provider? The FAA doesn't use the word 'fiduciary.' Why should I impose fiduciary duties on a fund administrator?"

A: Your Honor, the label is not dispositive under New York law. What matters is the substance of the relationship. EBC I makes clear that fiduciary duties can arise from facts and circumstances demonstrating trust and confidence, even without a formal designation. Here, the substance is as follows: Vantor exercised independent discretionary judgment over the pricing of forty-seven illiquid positions — assets with no readily observable market prices, including CLO equity tranches, bespoke CDO mezzanine notes, and distressed loan participations. Ironside, its investors, and its regulators were required to rely on Vantor's independent marks as the basis for reported NAV. That level of discretionary control and the resultant reliance can create a fiduciary or quasi-fiduciary relationship. Moreover, Vantor held itself out — both in its marketing materials and in the FAA itself, which describes its services as "independent pricing and valuation" — as providing an independent check on manager valuations. At the motion to dismiss stage, where the factual question of whether the relationship was fiduciary in nature has not been explored through discovery, the claim should be preserved.

Q: "If I dismiss the fiduciary duty claim, does that materially affect your case?"

A: It would narrow the available remedies — disgorgement, for example, is a remedy more readily available for breach of fiduciary duty than for breach of contract. But we want to be candid with the Court: the core of our case rests on the fraud, concealment, and breach of contract claims. Those claims remain regardless of the disposition of Count V. That said, we urge the Court to preserve the fiduciary duty claim given the fact-intensive nature of the inquiry. The question of whether Vantor's discretionary pricing authority gave rise to fiduciary obligations is precisely the type of issue that should be resolved on a complete factual record, not on a motion to dismiss.

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

IV.C.1. Vantor's Position

Vantor argues that FAA § 9.3 limits its aggregate liability under the agreement to an amount equal to two times the fees paid to Vantor in the twelve-month period preceding the date of termination. Vantor calculates the applicable fees as $1.49 million (the total fees paid during the period from October 2022 through September 2023), resulting in a liability cap of $2.98 million. Vantor contends that this contractual limitation applies to all claims arising out of or related to the FAA, including the fraud claims, and that Ironside's damages should accordingly be capped at $2.98 million.

This argument, if accepted, would reduce Ironside's potential recovery from approximately $287 million in compensatory damages (plus consequential and punitive damages) to $2.98 million — approximately one percent (1.04%) of the alleged compensatory harm. This is arguably the most consequential of Vantor's MTD arguments in terms of dollar-value impact.

IV.C.2. Our Rebuttal Talking Points

Vantor's liability cap argument fails under well-settled New York law. The following points should be made:

Contractual limitations on liability are unenforceable where the underlying conduct involves fraud, willful misconduct, or gross negligence. This is a bedrock principle of New York contract law. The Court of Appeals has held, in a line of cases spanning decades, that limitation of liability clauses are unenforceable as against public policy where the party seeking to invoke the clause engaged in fraud, willful misconduct, or gross negligence. See Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384–85 (1983); Sommer v. Stonefield Enterprises, 79 N.Y.2d 540, 553–54 (1992); Metropolitan Life Ins. Co. v. Noble Lowndes Int'l, Inc., 84 N.Y.2d 430, 436–37 (1994). The rationale is straightforward: to permit a party to contractually insulate itself from the consequences of intentional wrongdoing would be to reward fraud and undermine the deterrent function of the law.

The FAA itself distinguishes between ordinary breach and fraud. Section 9.1 of the FAA — the indemnification provision — specifically carves out "negligence, fraud, willful misconduct, or material breach" from the scope of Vantor's indemnification protections. This carve-out demonstrates that the parties themselves understood, at the time of contracting, that fraud and willful misconduct are qualitatively different from ordinary contractual nonperformance. The liability cap in § 9.3 must be read in harmony with the indemnification provision in § 9.1. If § 9.1 excludes fraud from Vantor's indemnification protections, § 9.3 cannot reasonably be read to cap Vantor's liability for the very same fraud.

Enforcing the cap here would produce an unconscionable result. To enforce the liability cap in this case would mean that Vantor's total exposure for an eleven-quarter fraudulent scheme — encompassing systematic misvaluation of 47 positions across three funds, active concealment of internal communications, and $287 million in aggregate overvaluation — would be limited to $2.98 million. That is approximately 1% of the compensatory harm. The cap was plainly intended to address the risk of ordinary errors in the course of fund administration — the type of unintentional mistakes that can occur in a complex valuation environment. It was not intended, and cannot reasonably be read, as a license to commit systematic fraud with near-total impunity.

The applicability of the cap is a fact-dependent determination. Even if the Court were inclined to consider the potential applicability of the cap, resolution of that question requires a determination of whether Vantor's conduct constitutes fraud or willful misconduct — a factual question that cannot be resolved on a motion to dismiss, where all allegations must be accepted as true. The First Department has expressly held that the enforceability of a contractual limitation of liability is a question of fact where fraud or willful misconduct is alleged, and that such a question is inappropriate for resolution on a pre-answer motion. See Banc of America Securities LLC v. Solow Bldg. Co. II LLC, 47 A.D.3d 239, 244 (1st Dep't 2007).

The Complaint alleges fraud with scienter. On this motion, the Court must accept as true the Complaint's allegations that Vantor knowingly delivered false valuations and concealed evidence of the inflation. If those allegations are taken as true — as they must be under the CPLR § 3211(a)(7) standard — then the underlying conduct is fraud, and the liability cap is inapplicable as a matter of law.

IV.C.3. Key Authorities

• Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384–85 (1983) — The Court of Appeals held that limitation of liability clauses will not be enforced to shield a party from its own gross negligence or willful misconduct. Such clauses are unenforceable as against public policy when applied to intentional wrongdoing. This is the seminal case on the enforceability of limitation of liability clauses under New York law.

• Sommer v. Stonefield Enterprises, 79 N.Y.2d 540, 553–54 (1992) — The Court of Appeals held that limitation of liability clauses are to be strictly construed and are unenforceable where fraud is alleged. The Court emphasized that public policy precludes enforcement of such clauses where the party seeking protection engaged in fraudulent or willful conduct.

• Metropolitan Life Ins. Co. v. Noble Lowndes Int'l, Inc., 84 N.Y.2d 430, 436–37 (1994) — The Court of Appeals held that "fraud vitiates all contractual protections," including limitation of liability provisions. This holding is categorical: where fraud is established, no contractual provision can serve to limit the wrongdoer's exposure.

• Banc of America Securities LLC v. Solow Bldg. Co. II LLC, 47 A.D.3d 239, 244 (1st Dep't 2007) — The First Department held that the enforceability of a contractual limitation of liability is a question of fact where fraud or willful misconduct is alleged, and that such a question is not appropriate for resolution on a motion to dismiss.

IV.C.4. Anticipated Court Questions

Q: "The parties are sophisticated commercial entities. Why shouldn't I enforce the bargained-for liability cap?"

A: Your Honor, New York courts have consistently held that even sophisticated commercial parties cannot contractually insulate themselves from the consequences of fraud. This is not a question of commercial sophistication or freedom of contract — it is a question of public policy. The Court of Appeals in Metropolitan Life stated it plainly: "fraud vitiates all contractual protections." The parties may bargain for limitation of liability provisions to allocate ordinary commercial risk, but they cannot bargain for a shield against intentional wrongdoing.

Moreover, the FAA itself recognizes this distinction. Section 9.1, the indemnification provision, specifically carves out "negligence, fraud, willful misconduct, or material breach" from Vantor's protections. The parties understood that fraud-based liability is categorically different from liability for ordinary errors. The § 9.3 cap was intended to limit Vantor's exposure for the type of routine valuation mistakes that can occur in a complex fund administration environment. It was not intended to cap Vantor's exposure for an eleven-quarter scheme of systematic fraud causing $287 million in harm at approximately 1% of the damage. That result would not enforce the bargain; it would reward the very fraud the cap was never intended to insulate.

Q: "But hasn't your client also argued breach of contract? If the contract claims involve the same conduct, doesn't the cap apply to those?"

A: We acknowledge that the liability cap may have potential relevance to a pure contract claim predicated on negligent performance — that is, if the conduct at issue were determined to be mere negligence rather than fraud. The breach of contract claim may ultimately be subject to a separate damages analysis on that basis. However, the fraud claims seek damages for intentional wrongdoing, and the cap is categorically inapplicable to those claims under Metropolitan Life, Sommer, and Kalisch-Jarcho. At the motion to dismiss stage, where all of Ironside's allegations — including its allegations of intentional fraud — must be accepted as true, the Court cannot cap damages across all causes of action based on a contractual provision that is unenforceable as to the fraud counts. Whether the cap applies to any particular claim is a fact-dependent question that requires resolution of whether Vantor's conduct constitutes fraud or willful misconduct — a question that cannot be answered on the pleadings.

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

IV.D.1. Vantor's Position

Vantor argues that the unjust enrichment claim (Count VII) should be dismissed because the FAA is a valid, binding agreement between the parties that governs the same subject matter as the unjust enrichment claim. Vantor relies on the general rule that a quasi-contractual claim for unjust enrichment cannot be maintained where an express contract exists between the parties covering the same subject matter. Vantor contends that because the FAA governs Vantor's provision of valuation services and Ironside's payment of fees for those services, there is no gap in the contractual framework that would justify resort to a quasi-contractual theory of recovery.

IV.D.2. Our Rebuttal Talking Points

While the general rule stated by Vantor is correct as an abstract proposition, it does not support dismissal of Count VII at the pleading stage under the circumstances of this case. The following points should be made:

Unjust enrichment may be pled as an alternative theory of recovery. Under New York's liberal pleading rules, a plaintiff may plead unjust enrichment as an alternative or additional theory of recovery where there is a bona fide dispute as to the existence, scope, or enforceability of the governing contract. See CPLR § 3014 (permitting alternative and inconsistent pleading); IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009). Here, there is a genuine dispute about the scope and enforceability of the FAA. Vantor itself contends that FAA § 9.3 limits all recovery to $2.98 million. If the Court were to agree that the cap constrains the contract claim but not the fraud claims, the scope and applicability of the FAA are genuinely in dispute — creating precisely the type of situation in which alternative pleading of unjust enrichment is appropriate.

Unjust enrichment reaches benefits retained through fraudulent performance. The unjust enrichment claim targets the $9.28 million in total fees that Vantor received over the life of the FAA — fees that were earned through a fraudulently performed engagement. Where a contract is vitiated or rendered voidable by fraud, unjust enrichment serves as an independent basis for recovering benefits conferred on the wrongdoer. The principle is simple: Vantor should not be permitted to retain the fruits of an engagement it performed fraudulently. If the FAA is ultimately held to be vitiated by Vantor's fraud — or if the scope of the contractual remedies is disputed — unjust enrichment provides an equitable mechanism for recovering the fees Vantor received.

Dismissal of unjust enrichment at the pleading stage is premature. New York courts routinely permit unjust enrichment to proceed alongside breach of contract claims at the pleading stage, particularly where the scope or enforceability of the contract is disputed. See Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011). Dismissal is warranted only where it is undisputed that a valid, enforceable contract governs the precise subject matter and there is no legitimate basis for questioning its applicability. That is not the case here.

IV.D.3. Key Authorities

• Corsello v. Ashgrove & Co. New York, Inc., 18 N.Y.3d 777, 790–91 (2012) — The Court of Appeals held that unjust enrichment may not be maintained where there is an express contract governing the same subject matter, but confirmed that the claim may be pled in the alternative where the scope or validity of the contract is in dispute.

• IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009) — The Court of Appeals held that unjust enrichment may be pled alongside breach of contract in the alternative where there is a genuine dispute about the scope or enforceability of the contract. This is directly applicable here given the dispute over the FAA § 9.3 liability cap.

• Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011) — The Court of Appeals held that at the pleading stage, where the validity or scope of a contract is in dispute, alternative theories including unjust enrichment are permissible and should not be dismissed on a pre-answer motion.

IV.D.4. Anticipated Court Questions

Q: "There's an express contract here — the FAA. Why should I allow a quasi-contract claim?"

A: Your Honor, because the parties dispute the scope and enforceability of the FAA — particularly the § 9.3 liability cap. Vantor argues the cap limits all recovery to $2.98 million; we argue it is unenforceable as to the fraud claims. If the contract limits Ironside's recovery on the contract claim to $2.98 million, but the fraud claims seek recovery for $287 million in intentionally inflicted harm, equity requires an alternative basis to recover the $9.28 million that Vantor received in fees for services it performed fraudulently. That is precisely what the unjust enrichment claim provides. It is pled in the alternative, which is expressly permitted under CPLR § 3014, and New York's highest court has repeatedly endorsed this pleading approach at the pre-answer stage. See IDT Corp., 12 N.Y.3d at 142; Mandarin Trading, 16 N.Y.3d at 182.

We also note that this is the lowest-stakes claim in the case — the unjust enrichment claim seeks disgorgement of $9.28 million in fees, while the fraud and breach of contract claims seek $287 million in compensatory damages plus consequential and punitive damages. Preserving the unjust enrichment claim imposes no prejudice on Vantor and is consistent with established pleading rules.

IV.E. Argument 5: Economic Loss Doctrine Bars All Tort Claims

IV.E.1. Vantor's Position

Vantor argues that all of Ironside's tort claims — the fraud claim (Count I), the fraudulent concealment claim (Count II), the negligent misrepresentation claim (Count III), the breach of fiduciary duty claim (Count V), and the aiding and abetting fraud claim (Count VI) — seek purely economic losses arising from a contractual relationship and are therefore barred by the economic loss doctrine. Vantor contends that the economic loss doctrine prohibits recovery in tort for purely economic losses that are the consequence of a breach of a contractual obligation, and that all of Ironside's claimed damages (overvaluation of fund positions, consequential losses, reputational harm) are economic in nature and arise from the parties' contractual relationship under the FAA.

IV.E.2. Our Rebuttal Talking Points

Vantor's economic loss doctrine argument fundamentally misapplies the doctrine. The following points should be made:

The economic loss doctrine does not bar fraud claims. This is the single most important point. New York's economic loss doctrine bars negligence-based tort claims for purely economic losses where there is no personal injury or property damage. It does not bar claims based on intentional torts, and specifically does not bar fraud claims. The Second Circuit, applying New York law, has squarely held that "the economic loss doctrine does not bar fraud claims." Adriatic Specialty Insurance v. Aniero Concrete Co., 404 F.3d 566, 584–85 (2d Cir. 2005). Similarly, in Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000), the Second Circuit held that a fraud claim premised on misrepresentation of present fact survives the economic loss doctrine even where a contract governs the parties' relationship. This is settled law.

The rationale is self-evident: the economic loss doctrine exists to prevent parties from circumventing the bargained-for allocation of risk in a contract by recasting a mere failure of performance as a tort. But fraud is categorically different from a failure of performance. Where a party intentionally deceives another, the law provides tort remedies regardless of whether the parties also have a contractual relationship. To hold otherwise would mean that the existence of a contract immunizes a party from fraud liability — a result that would be both absurd and contrary to public policy.

Ironside's fraud claims (Counts I and II) and its aiding and abetting fraud claim (Count VI) are all based on intentional tortious conduct. The economic loss doctrine is categorically inapplicable to these claims.

The "special relationship" exception applies to the negligent misrepresentation claim. The negligent misrepresentation claim (Count III) does sound in negligence, and the economic loss doctrine is therefore potentially relevant. However, there is a well-recognized exception to the economic loss doctrine for negligent misrepresentation claims where the defendant occupied a "special relationship" with the plaintiff — specifically, where the defendant was a professional service provider who owed a duty of care beyond its contractual obligations. See Parrott v. Whitfield Castellan CPAs LLP, 95 N.Y.2d 479, 483–84 (2000).

The classic test for the "special relationship" exception was articulated by the Court of Appeals in Credit Alliance Corp. v. Marlowe Enterprises, 65 N.Y.2d 536, 551 (1985). Under Credit Alliance, a negligent misrepresentation claim is cognizable where: (1) the defendant was aware that its work product was to be used for a particular purpose; (2) a known party or parties relied on the work product in furtherance of that purpose; and (3) there was some conduct on the part of the defendant linking it to the relying party that evinced the defendant's understanding of that reliance. All three prongs are satisfied here:

(1) Vantor was aware that its valuations would be used by Ironside to report NAV to investors, make investment and redemption decisions, and submit regulatory filings;

(2) Ironside — a known party — relied on Vantor's valuations in furtherance of those purposes; and

(3) Vantor's conduct — including its marketing of its services as "independent pricing and valuation," its direct delivery of NAV reports to Ironside, and its acknowledgment of Ironside's reliance in the FAA — evinces its understanding of that reliance.

The economic loss doctrine does not apply to intentional torts, including aiding and abetting fraud. The aiding and abetting fraud claim (Count VI) alleges that Vantor's corporate officers — Raymond Kettler and Susan Hargrove — aided and abetted the fraud committed by Orris and Rajaram through their supervision, ratification, or knowing failure to prevent the delivery of false valuations. This claim is based on intentional tortious conduct. The economic loss doctrine is categorically inapplicable to intentional torts.

The breach of fiduciary duty claim, if the relationship is fiduciary in nature, also falls outside the economic loss doctrine. A fiduciary owes duties that exist independently of any contract, and breach of those duties gives rise to tort liability regardless of the economic nature of the losses. If the Court determines (or preserves for discovery the question of whether) a fiduciary relationship existed, the economic loss doctrine does not bar Count V.

IV.E.3. Key Authorities

• Adriatic Specialty Insurance v. Aniero Concrete Co., 404 F.3d 566, 584–85 (2d Cir. 2005) (applying New York law) — The Second Circuit held that the economic loss doctrine does not bar fraud claims. The court explained that the doctrine applies only to negligence claims and has no application to claims based on intentional wrongdoing.

• Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000) (applying New York law) — The Second Circuit held that a fraud claim premised on a misrepresentation of present fact survives the economic loss doctrine even where a contract governs the parties' relationship.

• Parrott v. Whitfield Castellan CPAs LLP, 95 N.Y.2d 479, 483–84 (2000) — The Court of Appeals held that a negligent misrepresentation claim is cognizable where a professional service provider owed a duty of care beyond its contractual obligations, applying the "special relationship" exception to the economic loss doctrine.

• Credit Alliance Corp. v. Marlowe Enterprises, 65 N.Y.2d 536, 551 (1985) — The Court of Appeals articulated the three-prong test for the "special relationship" exception: (1) awareness that the work product was to be used for a particular purpose, (2) reliance by a known party in furtherance of that purpose, and (3) conduct linking the parties evincing the defendant's understanding of reliance.

IV.E.4. Anticipated Court Questions

Q: "This is a contract dispute between two commercial parties. Why should I allow tort claims that are just another way of saying Vantor didn't perform the contract?"

A: Because Vantor didn't merely fail to perform — it lied. The economic loss doctrine prohibits negligence suits for purely economic harm where the parties' relationship is governed by contract. But it does not bar fraud. New York's highest court has repeatedly held that fraud claims survive the economic loss doctrine because fraud involves a qualitatively different wrong — intentional deception — that the law addresses through tort remedies regardless of whether a contractual relationship exists. The fraud alleged here — intentional inflation of marks, concealment of internal communications documenting awareness of the inflation, and knowing delivery of false NAV calculations over eleven consecutive quarters — goes far beyond a failure of contractual performance. It is systematic, intentional deception. The economic loss doctrine was not designed to, and does not, immunize that conduct from tort liability.

Q: "What about the negligent misrepresentation claim specifically — doesn't that sound in negligence?"

A: It does, Your Honor, and we acknowledge that the economic loss doctrine is potentially relevant to Count III. However, the claim falls squarely within the well-recognized "special relationship" exception articulated in Credit Alliance and applied in Parrott. Vantor was Ironside's independent valuation agent — a professional service provider entrusted with a function upon which Ironside, its investors, and regulators necessarily relied. All three prongs of the Credit Alliance test are met: Vantor knew its valuations would be used for NAV reporting, investor communications, and regulatory filings; Ironside was a known party that relied on those valuations; and Vantor's conduct — including its direct delivery of NAV reports, its marketing of itself as an "independent" pricing service, and the FAA's description of its role — evinced its understanding of that reliance. Under these circumstances, the negligent misrepresentation claim is cognizable notwithstanding the economic loss doctrine.

IV.F. New Reply-Brief Argument: Martin Act Preemption

IV.F.1. Vantor's Position (Raised for First Time in Reply Brief)

In its reply brief dated April 4, 2025, Vantor argued for the first time that the Martin Act (N.Y. General Business Law Article 23-A) preempts Ironside's common-law fraud claims. Vantor contends that because the alleged conduct — misvaluation of securities positions — arises in the "securities context," Ironside's fraud claims fall within the Martin Act's ambit and are preempted by the Attorney General's exclusive enforcement authority under the statute. This argument was not raised in Vantor's opening motion papers dated February 28, 2025, and Ironside had no opportunity to address it in its opposition brief.

IV.F.2. Our Rebuttal Talking Points

This argument should be rejected on both procedural and substantive grounds.

Procedural objection — the argument is waived. The Martin Act preemption argument was raised for the first time in the reply brief and should be deemed waived. Arguments raised for the first time in reply deprive the opposing party of the opportunity to respond and are generally not considered by courts. At minimum, Ironside should be afforded the opportunity to respond to this new argument. We have prepared a sur-reply letter brief dated April 9, 2025 that addresses the Martin Act preemption issue. We respectfully request that the Court either decline to consider the argument or grant leave to file our sur-reply.

On the merits, the Martin Act does not preempt common-law fraud claims. The Court of Appeals definitively resolved this question in Assured Guaranty (UK) Ltd. v. Brightwater Trust Bank Inv. Mgmt. Inc., 18 N.Y.3d 341 (2011). In Assured Guaranty, the Court confirmed that the Martin Act does not preempt private common-law fraud claims. The Court explained that while the Martin Act vests exclusive enforcement authority in the Attorney General, that exclusivity applies only to private causes of action brought under the Martin Act itself. It does not foreclose private fraud claims brought under the common law. The Court's analysis rested on both the text and legislative history of the Martin Act, and the holding is unambiguous: "The Martin Act does not preempt common-law claims." Id. at 350.

This dispute does not involve the sale or offer of securities. Even setting aside the holding in Assured Guaranty, the Martin Act's substantive provisions are directed at fraudulent practices in the offer, sale, and purchase of securities. This dispute does not involve the sale or offer of securities. It involves fund administration and valuation services provided by a fund administrator under a services agreement. Vantor is not a securities dealer, broker, or issuer. It is a back-office service provider that was retained to price illiquid assets. The Martin Act's substantive provisions simply do not apply to the conduct at issue.

IV.F.3. Key Authorities

• Assured Guaranty (UK) Ltd. v. Brightwater Trust Bank Inv. Mgmt. Inc., 18 N.Y.3d 341, 350–53 (2011) — The Court of Appeals held that the Martin Act does not bar private common-law fraud claims. The Court's analysis established that the Attorney General's exclusive enforcement authority under the Martin Act does not preempt traditional common-law remedies. The legislative history and text of the Martin Act demonstrate that the statute was intended to supplement, not supplant, common-law fraud protections. This is the controlling authority on the issue and is directly dispositive of Vantor's argument.

• Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. P'ship, 12 N.Y.3d 236, 244 (2009) — This pre-Assured Guaranty decision addressed the scope of Martin Act preemption and was subsequently superseded in relevant part by Assured Guaranty, which narrowed the scope of Martin Act preemption to exclude common-law fraud claims from its reach. Kerusa is relevant background but Assured Guaranty is the controlling authority.

IV.F.4. Anticipated Court Questions

Q: "This argument was raised in the reply. Should I consider it?"

A: We respectfully submit that it should not be considered, Your Honor. The Martin Act preemption argument was raised for the first time in the reply brief, denying Ironside any opportunity to brief the issue in opposition. Arguments raised for the first time in reply are routinely disregarded by courts for this very reason. Should the Court nonetheless entertain the argument, we respectfully request leave to file our sur-reply letter brief dated April 9, 2025, which addresses the issue in full.

On the merits, the argument fails under Assured Guaranty, where the Court of Appeals held unambiguously that the Martin Act does not preempt common-law fraud claims. Moreover, this dispute does not involve the sale or offer of securities — it involves fund administration and valuation services — and the Martin Act's substantive provisions are simply inapplicable. This argument is a last-ditch effort that lacks merit, and its late presentation underscores its weakness.

V. OVERARCHING STRATEGIC NOTES FOR ORAL ARGUMENT

V.1. Theme

The overarching theme for oral argument should be the following:

This is not a case about a service provider making ordinary valuation errors. This is a case about an eleven-quarter, systematic fraud in which Vantor knowingly delivered fabricated marks to Ironside, concealed internal communications documenting its awareness of the inflation, and caused $287 million in aggregate overvaluation across forty-seven positions in three funds — harming Ironside, its limited partners, and the integrity of reported regulatory filings.

Every response to the Court's questions should be anchored in this theme. Vantor's motion seeks to recharacterize a fraud case as a contract dispute and to eliminate, at the threshold, the causes of action and damages theories that give the case its full scope. The Court should not permit that recharacterization at the pleading stage.

V.2. Key Factual Anchors to Emphasize

The following factual points should be woven into argument as appropriate. These are the facts that most powerfully distinguish this case from an ordinary fund administration dispute:

• The internal Vantor emails. The internal Vantor emails between Nathan Orris and Deepa Rajaram, obtained via CPLR § 3102(c) subpoena to DataVault Solutions Inc. (a cloud-based document management provider used by Vantor), demonstrate scienter. These emails show that Orris and Rajaram were aware that the marks they were delivering to Ironside were inflated and that internal model adjustments were being applied to inflate valuations above observable market inputs. These emails are the documentary linchpin of the fraud allegations and should be referenced repeatedly.

• The independent re-pricing report. Harmon-Bryce Valuation Advisors LLC (led by Dr. Lena Galbraith, CFA, ASA) independently re-priced all forty-seven positions using market-standard methodologies and found aggregate overvaluation of $287 million across the eleven-quarter period (Report Ref: HBVA-2023-0922-IRON). This is not Ironside's estimate — it is the conclusion of an independent, credentialed valuation firm.

• The forensic accounting damages analysis. Kessler Forensic Accounting Group PC (Martin Kessler, CPA/CFF) quantified total damages at approximately $382 million across all categories, including compensatory, consequential, and fee disgorgement (Report Ref: KF-2025-0110-ICM). This comprehensive damages analysis supports Ironside's claim for compensatory, consequential, and disgorgement relief.

• The duration and scope of the scheme. The overvaluation was not a one-time error or an isolated mistake. It spanned eleven consecutive quarters (Q1 2021 through Q3 2023), affected three separate funds (Fund I: $156.4 million in overvaluation; Fund II: $88.7 million; Fund III: $41.9 million), and peaked at $52.3 million in a single quarter (Q4 2022), when reported NAV was overstated by 8.6%. The duration and breadth of the misvaluation are inconsistent with innocent error and consistent only with systematic fraud.

• Vantor's incomplete and evasive response to Ironside's inquiries. In response to Ironside's August 4, 2023 inquiry (sent to Nathan Orris), in which Ironside requested explanation and documentation regarding pricing discrepancies, Vantor's response was materially incomplete. Of tw

BENCH MEMO FOR ORAL ARGUMENT MOTION TO DISMISS
TO: Samuel Eklund, Responsible Partner
FROM: Yuki Nakamura, Lead Associate
RE: Oral Argument Preparation — Vantor Holdings Corp.'s Motion to Dismiss; Ironside Capital Management LP v. Vantor Holdings Corp., Index No. 650312/2025 (N.Y. Sup. Ct., Commercial Division, N.Y. County)
DATE: April 10, 2025
REVIEWED BY: Samuel Eklund
ARGUMENT DATE: April 14, 2025, before Hon. Richard Torrance, J.S.C.
This memorandum is prepared solely for use by attorneys of this firm in connection with the above-captioned matter. It constitutes attorney work product and is protected from disclosure by the attorney work product doctrine and the attorney-client privilege. This document should not be disclosed to any person outside the firm without prior authorization from the responsible partner.
I. INTRODUCTION AND PURPOSE
This bench memo is prepared for Samuel Eklund's use at oral argument on April 14, 2025, before the Honorable Richard Torrance, Justice of the Supreme Court, Commercial Division, New York County, on Vantor Holdings Corp.'s Motion to Dismiss filed on February 28, 2025, pursuant to CPLR § 3211(a)(1) (documentary evidence) and CPLR § 3211(a)(7) (failure to state a cause of action).
The briefing on the motion is now complete. Ironside Capital Management LP filed its opposition brief on March 21, 2025, together with the Affirmation of Yuki Nakamura and fourteen documentary exhibits in support. Vantor filed its reply brief on April 4, 2025. Notably, Vantor raised for the first time in its reply brief an argument that the Martin Act (N.Y. General Business Law Article 23-A) preempts Ironside's common-law fraud claims. Because this argument was not presented in the opening motion papers, Ironside had no opportunity to address it in opposition. Accordingly, a draft sur-reply letter brief dated April 9, 2025 has been prepared addressing the Martin Act preemption argument. Filing of the sur-reply is subject to the Court's permission, which we intend to request at argument or by letter application in advance if the Court's practice so requires.
The purpose of this memorandum is to provide a comprehensive roadmap for oral argument. It addresses each of Vantor's five principal arguments for dismissal, provides anticipated questions from the Court together with recommended responses, identifies and discusses key authorities with pinpoint citations, and sets forth rebuttal talking points organized by issue. The memorandum also addresses the new Martin Act preemption argument raised in the reply brief, and concludes with overarching strategic notes, a quick-reference table of authorities, and logistical details for the argument date.
Background on the Parties and the Dispute. Our client, Ironside Capital Management LP, is a Delaware limited partnership with its principal office at 680 Park Avenue, 34th Floor, New York, New York 10065. Ironside is a registered investment adviser managing approximately $4.2 billion in assets under management across multiple investment vehicles, with a particular focus on structured credit and distressed debt strategies. Ironside filed its Verified Complaint on January 21, 2025, asserting seven causes of action against Vantor Holdings Corp. ("Vantor"), a Delaware corporation with its principal office at 1400 Brickell Avenue, Suite 2200, Miami, Florida 33131. Vantor is a fund administration and valuation services firm that was retained by Ironside under a Fund Administration Agreement ("FAA") dated March 15, 2020, as amended.
The Verified Complaint arises from the systematic misvaluation of forty-seven (47) illiquid credit and structured-product positions across three feeder funds during the period from the first quarter of 2021 through the third quarter of 2023 — a span of eleven consecutive quarters. The alleged misvaluations resulted in aggregate losses of approximately $287 million in overstated net asset value, causing harm to Ironside, its limited partners (including institutional investors such as Ashford Endowment Partners LP), and the integrity of its regulatory filings. The Complaint was verified by Elliot Brennan, Co-Founder, Managing Partner, and Chief Investment Officer of Ironside.
Defense counsel in this matter is the firm of Whitfield, Dane & Corcoran LLP, 200 South Biscayne Boulevard, Suite 3600, Miami, Florida 33131. The Vantor defense team is led by Gregory Dane (lead partner), with Allison Breck (senior associate) and Jordan Mayhew (associate) also appearing.
II. PROCEDURAL POSTURE
The procedural history of this matter is as follows:
January 21, 2025: Ironside filed its Verified Complaint (87 paragraphs, seven causes of action), verified by Elliot Brennan, Co-Founder, Managing Partner, and Chief Investment Officer of Ironside. The seven causes of action asserted in the Complaint are:
Count I: Fraud (common law) — alleging that Vantor knowingly delivered materially false and inflated valuations of 47 illiquid positions, misrepresenting the net asset values of the funds to Ironside and its investors.
Count II: Fraudulent Concealment — alleging that Vantor concealed internal communications and documentation evidencing its awareness of the overvaluations, including emails between Nathan Orris (SVP, Valuation Services) and Deepa Rajaram (VP, Client Valuation Operations) reflecting knowledge of inflated marks.
Count III: Negligent Misrepresentation — alleging that, to the extent any misstatements were not made with actual knowledge of their falsity, Vantor negligently misrepresented the accuracy of its valuations while occupying a position of trust and professional responsibility.
Count IV: Breach of Contract — alleging material breach of the Fund Administration Agreement, specifically Sections 3.1 (General Administration Obligations) and 4.2 (Independent Pricing and Valuation Services), by failing to perform valuation services in accordance with GAAP, the funds' stated valuation policies, and industry standards.
Count V: Breach of Fiduciary Duty — alleging that Vantor owed fiduciary duties to Ironside arising from its role as independent valuation agent exercising discretionary judgment over the pricing of illiquid assets, and that Vantor breached those duties through its knowing delivery of false valuations and concealment of material information.
Count VI: Aiding and Abetting Fraud (against Vantor corporate officers) — alleging that individual Vantor officers, including Raymond Kettler (CEO) and Susan Hargrove (COO), aided and abetted the fraud committed by Orris and Rajaram by supervising, ratifying, or failing to prevent the delivery of false valuations despite knowledge or reckless disregard of the inflated marks.
Count VII: Unjust Enrichment — alleging that Vantor was unjustly enriched by receipt of $9.28 million in total fees paid over the life of the FAA for valuation services that were fraudulently performed.
Damages Sought: The Complaint seeks compensatory damages of approximately $287 million (the aggregate overvaluation), consequential damages of approximately $50 million (comprising investor litigation defense costs, regulatory remediation expenses, and reputational harm), punitive damages on the fraud counts, and attorneys' fees pursuant to FAA § 9.4.
February 28, 2025: Vantor filed its Motion to Dismiss pursuant to CPLR § 3211(a)(1) (documentary evidence — specifically, the FAA and its amendments) and CPLR § 3211(a)(7) (failure to state a cause of action). The motion advances five principal arguments for dismissal, summarized in Section III below.
March 21, 2025: Ironside filed its opposition brief (45 pages), together with the Affirmation of Yuki Nakamura in Opposition to the Motion to Dismiss, attaching fourteen (14) documentary exhibits, including excerpts of the FAA and amendments, the internal Vantor emails obtained via pre-suit subpoena, the Harmon-Bryce Valuation Advisors LLC independent re-pricing report, and the Kessler Forensic Accounting Group PC damages analysis.
April 4, 2025: Vantor filed its reply brief. Notably, the reply brief raised for the first time an argument that the Martin Act preempts Ironside's common-law fraud claims. This argument was not included in the opening motion papers and Ironside has had no opportunity to brief it.
Standard of Review. The applicable standard of review at this stage is well settled. On a motion to dismiss under CPLR § 3211(a)(7), the court must afford the complaint a liberal construction, accept all facts alleged therein as true, and accord the plaintiff the benefit of every possible favorable inference. See Leon v. Martinez, 84 N.Y.2d 83, 87–88 (1994). The sole question is whether the factual allegations, accepted as true, manifest any cognizable cause of action. Id. On a motion to dismiss under CPLR § 3211(a)(1), the movant bears the burden of demonstrating that the documentary evidence "utterly refutes" the plaintiff's factual allegations and "conclusively establishes a defense as a matter of law." Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002). The documentary evidence must be "essentially undeniable" — that is, it must resolve all factual issues as a matter of law and definitively dispose of the plaintiff's claim. Id.
These are demanding standards for a movant to satisfy, particularly where, as here, the Complaint is detailed, well-pled, and supported by documentary evidence of its own.
III. SUMMARY OF VANTOR'S FIVE MTD ARGUMENTS
For quick reference at argument, Vantor's Motion to Dismiss advances the following five principal arguments, plus a new argument raised for the first time in the reply brief:
1. Fraud Claims Are Duplicative and Fail Particularity Requirements. Vantor contends that the fraud claims (Counts I and II) are duplicative of the breach of contract claim (Count IV) and fail to satisfy the heightened particularity requirements of CPLR § 3016(b).
2. Breach of Fiduciary Duty Fails Because Vantor Is Not a Fiduciary. Vantor argues that it is a contractual service provider, not a fiduciary, and that the FAA does not create or impose fiduciary obligations.
3. The FAA § 9.3 Liability Cap Limits All Damages to $2.98 Million. Vantor asserts that FAA § 9.3 caps its aggregate liability at two times the fees paid in the twelve months preceding termination — calculated as 2 × $1.49 million = $2.98 million — and that this cap applies to all claims, including fraud.
4. Unjust Enrichment Is Precluded by Express Contract. Vantor contends that the unjust enrichment claim (Count VII) cannot be maintained because the FAA is an express contract governing the same subject matter.
5. Economic Loss Doctrine Bars All Tort Claims. Vantor argues that all tort claims (Counts I, II, III, V, and VI) seek purely economic losses arising from a contractual relationship and are therefore barred by the economic loss doctrine.
6. Martin Act Preemption (New — Raised in Reply Brief). Vantor argues for the first time in its April 4, 2025 reply brief that the Martin Act preempts Ironside's common-law fraud claims because the alleged conduct arises in the securities context.
Each of these arguments is addressed in detail in Section IV below.
IV. ARGUMENT-BY-ARGUMENT ANALYSIS
IV.A. Argument 1: Fraud Claims Are Duplicative of Contract and Fail CPLR § 3016(b) Particularity
IV.A.1. Vantor's Position
Vantor argues that the fraud claims (Counts I and II) are duplicative of the breach of contract claim (Count IV) and should be dismissed on that basis. The crux of Vantor's argument is that the fraud claims merely repackage the breach of contract claim — that is, they allege no more than Vantor's failure to perform its valuation services in accordance with FAA §§ 3.1 and 4.2 — and do not allege any duty independent of the contract that would support an independent fraud cause of action.
In addition, Vantor contends that even if the fraud claims are not duplicative, they fail to satisfy the heightened particularity requirements of CPLR § 3016(b), which requires that "the circumstances constituting the wrong shall be stated in detail." Vantor asserts that the Complaint does not identify specific misrepresentations with sufficient specificity as to dates, speakers, and audiences, and that the fraud allegations are impermissibly vague and conclusory.
IV.A.2. Our Rebuttal Talking Points
Vantor's argument mischaracterizes the nature of the fraud claims and ignores the detailed allegations in the Complaint. The following points should be made at argument:
The fraud claims are predicated on affirmative misrepresentation and active concealment — not merely on failure to perform contractual duties. The Complaint alleges that Vantor's personnel — specifically Nathan Orris, Senior Vice President of Valuation Services, and Deepa Rajaram, Vice President of Client Valuation Operations — knowingly used stale broker quotes (ranging from six to twelve months old) as purported market data, applied internally generated "model adjustments" that inflated marks by an average of 14.3% above observable market inputs, failed to apply the required waterfall valuation procedures set forth in the funds' valuation policies, and — critically — actively concealed internal email communications documenting their awareness that the marks they were delivering to Ironside were materially inflated. This is not a case of mere non-performance; it is a case of knowing, affirmative deception.
The fraud claims are not duplicative because they are based on a duty independent of the contract. Under well-established New York law, a fraud claim is not duplicative of a breach of contract claim where it is predicated on a duty that exists independently of the contractual obligations. See Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986). Here, the fraud claims are based on Vantor's affirmative misrepresentations of present fact — specifically, its representations that the valuations it delivered were accurate, conformed to GAAP, and reflected the funds' valuation policies — when Vantor knew those representations were false. The concealment of internal emails showing awareness of inflated marks is classic fraudulent concealment, which arises from a general duty not to deceive that exists independently of any contractual obligation. A party's failure to perform a contractual obligation is breach; a party's knowing delivery of false information while actively concealing evidence of its falsity is fraud. These are categorically different wrongs.
CPLR § 3016(b) particularity is satisfied. The Complaint identifies the fraud with the specificity required by CPLR § 3016(b). It identifies:
• Who: Nathan Orris, Deepa Rajaram, under the supervision of Raymond Kettler (CEO) and Susan Hargrove (COO);
• What: The submission of inflated net asset value calculations for forty-seven specifically identified positions across CLO equity tranches, bespoke CDO mezzanine notes, and distressed loan participations;
• When: Each of eleven quarters from Q1 2021 through Q3 2023;
• Where: Delivered to Ironside as part of quarterly NAV reporting at Ironside's New York offices and via electronic transmission;
• How: Through the use of stale broker quotes, application of undisclosed "model adjustments" inflating marks by an average of 14.3%, and concealment of internal communications documenting awareness of the inflation.
Specific example to emphasize at argument: The peak overvaluation occurred in Q4 2022, when aggregate overvaluation reached $52.3 million — overstating the funds' combined NAV by 8.6% in a single quarter. This is not a general or conclusory allegation; it is a precise, quantified assertion of fraud tied to a specific time period and measurable harm.
IV.A.3. Key Authorities
The following authorities should be cited in connection with this argument:
On the fraud/contract distinction:
• Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986) — The Court of Appeals held that a fraud claim is not duplicative of a breach of contract claim where it is based on a duty independent of the contract, such as the duty not to make knowing misrepresentations. This is the foundational authority on the fraud/contract distinction in New York.
• First Northpoint Securities v. Motor Car Funding, Inc., 257 A.D.2d 287, 291–92 (1st Dep't 1999) — The First Department held that where a defendant made specific misrepresentations of present fact that were collateral to its contractual promises of future performance, the fraud claim was independently actionable and survived alongside the breach of contract claim.
• Gosmile, Inc. v. Levine, 81 A.D.3d 77, 81 (1st Dep't 2010) — The First Department articulated the elements of a common-law fraud claim — (i) misrepresentation of material fact, (ii) falsity, (iii) scienter, (iv) reliance, and (v) injury — and confirmed that these elements are distinct from the elements of a breach of contract claim.
On CPLR § 3016(b) particularity:
• Eurycleia Partners, LP v. Padilla & Severin LLP, 12 N.Y.3d 553, 559 (2009) — The Court of Appeals held that CPLR § 3016(b) requires that "the circumstances constituting the wrong shall be stated in detail," but cautioned that the provision "should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud." The Court emphasized that the standard is met where the complaint gives the defendant sufficient notice of the transactions and occurrences at issue.
• Pludeman v. Northern Leasing Systems, Inc., 10 N.Y.3d 486, 492 (2008) — The Court of Appeals held that CPLR § 3016(b) is satisfied where the complaint identifies the specific persons who made the alleged misrepresentations, their content, and the time, place, and manner of the fraud. The Court specifically noted that § 3016(b) is not intended to require that a plaintiff identify every detail of the fraud at the pleading stage.
IV.A.4. Anticipated Court Questions
Q: "How does the fraud claim differ in substance from the breach of contract claim? Aren't you just saying Vantor didn't do its job properly?"
A: No, Your Honor. The distinction is fundamental. The breach of contract claim alleges that Vantor failed to perform its valuation obligations in accordance with the FAA. The fraud claims allege something categorically different — that Vantor affirmatively deceived Ironside. Vantor's personnel knowingly delivered inflated marks to Ironside as accurate valuations, while simultaneously concealing internal communications — the Orris-Rajaram emails — that documented their actual awareness that the marks were fabricated. A party that fails to perform a contract has breached an agreement. A party that lies about its performance — that affirmatively represents fabricated numbers as accurate while hiding the evidence of fabrication — has committed fraud. The duty not to deceive is independent of any contractual obligation to perform.
Moreover, the concealed emails — which were obtained via pre-suit subpoena to DataVault Solutions Inc. under CPLR § 3102(c) — demonstrate scienter that goes far beyond what would be required for a mere breach of contract claim. These emails show that Orris and Rajaram actually knew the marks were inflated and discussed the inflation internally. That evidence of scienter is what separates these fraud claims from a routine contract dispute.
Q: "Can you point to a specific allegation in the Complaint that goes beyond the contract?"
A: Yes, Your Honor. Several categories of allegations go beyond the contract. First, the allegations regarding Vantor's concealment of internal emails — the Orris and Rajaram correspondence — allege an independent duty not to deceive, not merely a duty to perform valuation services. The contract required Vantor to deliver accurate valuations; it did not require Vantor to hide evidence that those valuations were false. Second, the allegation that Vantor applied secret, undisclosed "model adjustments" that inflated marks by an average of 14.3% above observable inputs — without any disclosure to Ironside — goes beyond nonperformance into affirmative misrepresentation. Vantor did not simply fail to apply the correct methodology; it applied an incorrect methodology and then represented the results as accurate. That is an affirmative misrepresentation of present fact — that the delivered marks were the product of proper valuation procedures — which is actionable as fraud independent of any contractual claim.
IV.B. Argument 2: Breach of Fiduciary Duty Fails — Vantor Is Not a Fiduciary
IV.B.1. Vantor's Position
Vantor argues that the breach of fiduciary duty claim (Count V) should be dismissed because Vantor is an arm's-length contractual service provider and not a fiduciary. Vantor contends that the FAA is a standard commercial services agreement between sophisticated parties, that it does not designate Vantor as a fiduciary, and that no fiduciary relationship arises merely from the provision of fund administration services. Vantor relies on the general principle that conventional commercial relationships between independent parties do not give rise to fiduciary duties absent extraordinary circumstances.
IV.B.2. Our Rebuttal Talking Points
Vantor's argument, while invoking a correct general principle, ignores the specific facts and circumstances of its relationship with Ironside. The following points should be made:
The fiduciary duty claim is based on the particular nature of Vantor's role, not merely on the existence of a contractual relationship. Under the FAA, Vantor was not performing a purely ministerial function. FAA § 4.2 specifically charged Vantor with exercising independent discretionary judgment in pricing and valuing Level 2 and Level 3 assets — that is, illiquid positions with no readily observable market prices that require the exercise of professional judgment in selecting inputs, methodologies, and comparable reference points. Ironside was required by its own governing documents, its investor agreements, and applicable regulatory requirements to rely upon Vantor's independent valuations as the basis for its reported NAV. Vantor's role was not that of a mere bookkeeper or data entry service; it was an independent valuation agent entrusted with a critical gatekeeping function upon which Ironside, its limited partners, and regulators depended.
Under New York law, fiduciary obligations can arise from the specific facts and circumstances of a relationship. The absence of the word "fiduciary" from the FAA is not dispositive. New York courts have consistently held that fiduciary duties may arise from the particular facts and circumstances demonstrating that one party reposed trust and confidence in another, and that the other party assumed a position of superiority or dominance. See EBC I, Inc. v. Pinnacle National Bank, 5 N.Y.3d 11, 19–20 (2005). Here, the relationship between Ironside and Vantor was characterized by precisely the type of trust, reliance, and discretionary authority that can give rise to fiduciary obligations: Ironside entrusted Vantor with independent authority over the pricing of illiquid assets — a function upon which the reported value of the funds, investor capital account statements, and regulatory filings all depended. Vantor held itself out as an independent check on manager-provided marks, reinforcing the expectation of trust and reliability.
The scope of reliance extended beyond Ironside itself. Ironside's limited partners, including Ashford Endowment Partners LP (which committed $340 million to the funds), relied on Vantor's independent valuations in making investment and redemption decisions. Regulatory filings submitted to the SEC and other authorities incorporated Vantor's valuations. The breadth and depth of reliance on Vantor's work underscores the fiduciary character of the relationship.
Alternative argument — preservation for discovery. Even if the Court has questions about whether the relationship was fiduciary in nature, the claim should survive the motion to dismiss stage and be resolved on a fuller factual record after discovery regarding the nature and scope of Vantor's discretionary authority, the degree of reliance placed on its work, and the parties' course of dealing. The question of whether a fiduciary relationship exists is "typically a fact-intensive inquiry" that is "not suitable for resolution on a motion to dismiss." Roni LLC v. Arfa, 18 N.Y.3d 846, 848 (2011).
IV.B.3. Key Authorities
• EBC I, Inc. v. Pinnacle National Bank, 5 N.Y.3d 11, 19–20 (2005) — The Court of Appeals held that a fiduciary relationship can arise from facts and circumstances demonstrating trust and confidence, even absent a formal fiduciary designation. The relevant inquiry is whether one party reposed trust in another who assumed a superior position in the relationship.
• Northeast Gen. Corp. v. Wellington Advert., Inc., 82 N.Y.2d 158, 162 (1993) — The Court of Appeals held that a conventional business relationship does not give rise to fiduciary duties absent special circumstances involving control, dominance, or the reposing of trust and confidence. This case articulates the general rule but also confirms that "special circumstances" can transform an otherwise arm's-length relationship into one giving rise to fiduciary duties.
• Roni LLC v. Arfa, 18 N.Y.3d 846, 848 (2011) — The Court of Appeals held that the question of whether a fiduciary duty exists is "typically a fact-intensive inquiry" that is generally "not suitable for resolution on a motion to dismiss." This is a critical authority supporting preservation of Count V.
• WIT Holding Corp. v. Klein, 282 A.D.2d 527, 528 (2d Dep't 2001) — The Second Department held that a party entrusted with discretionary authority over financial affairs may owe fiduciary obligations even absent a formal advisory relationship. This case supports the proposition that Vantor's discretionary pricing authority over illiquid assets could give rise to fiduciary duties.
IV.B.4. Anticipated Court Questions
Q: "Isn't Vantor just a service provider? The FAA doesn't use the word 'fiduciary.' Why should I impose fiduciary duties on a fund administrator?"
A: Your Honor, the label is not dispositive under New York law. What matters is the substance of the relationship. EBC I makes clear that fiduciary duties can arise from facts and circumstances demonstrating trust and confidence, even without a formal designation. Here, the substance is as follows: Vantor exercised independent discretionary judgment over the pricing of forty-seven illiquid positions — assets with no readily observable market prices, including CLO equity tranches, bespoke CDO mezzanine notes, and distressed loan participations. Ironside, its investors, and its regulators were required to rely on Vantor's independent marks as the basis for reported NAV. That level of discretionary control and the resultant reliance can create a fiduciary or quasi-fiduciary relationship. Moreover, Vantor held itself out — both in its marketing materials and in the FAA itself, which describes its services as "independent pricing and valuation" — as providing an independent check on manager valuations. At the motion to dismiss stage, where the factual question of whether the relationship was fiduciary in nature has not been explored through discovery, the claim should be preserved.
Q: "If I dismiss the fiduciary duty claim, does that materially affect your case?"
A: It would narrow the available remedies — disgorgement, for example, is a remedy more readily available for breach of fiduciary duty than for breach of contract. But we want to be candid with the Court: the core of our case rests on the fraud, concealment, and breach of contract claims. Those claims remain regardless of the disposition of Count V. That said, we urge the Court to preserve the fiduciary duty claim given the fact-intensive nature of the inquiry. The question of whether Vantor's discretionary pricing authority gave rise to fiduciary obligations is precisely the type of issue that should be resolved on a complete factual record, not on a motion to dismiss.
IV.C. Argument 3: FAA § 9.3 Liability Cap Limits Damages to $2.98 Million
IV.C.1. Vantor's Position
Vantor argues that FAA § 9.3 limits its aggregate liability under the agreement to an amount equal to two times the fees paid to Vantor in the twelve-month period preceding the date of termination. Vantor calculates the applicable fees as $1.49 million (the total fees paid during the period from October 2022 through September 2023), resulting in a liability cap of $2.98 million. Vantor contends that this contractual limitation applies to all claims arising out of or related to the FAA, including the fraud claims, and that Ironside's damages should accordingly be capped at $2.98 million.
This argument, if accepted, would reduce Ironside's potential recovery from approximately $287 million in compensatory damages (plus consequential and punitive damages) to $2.98 million — approximately one percent (1.04%) of the alleged compensatory harm. This is arguably the most consequential of Vantor's MTD arguments in terms of dollar-value impact.
IV.C.2. Our Rebuttal Talking Points
Vantor's liability cap argument fails under well-settled New York law. The following points should be made:
Contractual limitations on liability are unenforceable where the underlying conduct involves fraud, willful misconduct, or gross negligence. This is a bedrock principle of New York contract law. The Court of Appeals has held, in a line of cases spanning decades, that limitation of liability clauses are unenforceable as against public policy where the party seeking to invoke the clause engaged in fraud, willful misconduct, or gross negligence. See Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384–85 (1983); Sommer v. Stonefield Enterprises, 79 N.Y.2d 540, 553–54 (1992); Metropolitan Life Ins. Co. v. Noble Lowndes Int'l, Inc., 84 N.Y.2d 430, 436–37 (1994). The rationale is straightforward: to permit a party to contractually insulate itself from the consequences of intentional wrongdoing would be to reward fraud and undermine the deterrent function of the law.
The FAA itself distinguishes between ordinary breach and fraud. Section 9.1 of the FAA — the indemnification provision — specifically carves out "negligence, fraud, willful misconduct, or material breach" from the scope of Vantor's indemnification protections. This carve-out demonstrates that the parties themselves understood, at the time of contracting, that fraud and willful misconduct are qualitatively different from ordinary contractual nonperformance. The liability cap in § 9.3 must be read in harmony with the indemnification provision in § 9.1. If § 9.1 excludes fraud from Vantor's indemnification protections, § 9.3 cannot reasonably be read to cap Vantor's liability for the very same fraud.
Enforcing the cap here would produce an unconscionable result. To enforce the liability cap in this case would mean that Vantor's total exposure for an eleven-quarter fraudulent scheme — encompassing systematic misvaluation of 47 positions across three funds, active concealment of internal communications, and $287 million in aggregate overvaluation — would be limited to $2.98 million. That is approximately 1% of the compensatory harm. The cap was plainly intended to address the risk of ordinary errors in the course of fund administration — the type of unintentional mistakes that can occur in a complex valuation environment. It was not intended, and cannot reasonably be read, as a license to commit systematic fraud with near-total impunity.
The applicability of the cap is a fact-dependent determination. Even if the Court were inclined to consider the potential applicability of the cap, resolution of that question requires a determination of whether Vantor's conduct constitutes fraud or willful misconduct — a factual question that cannot be resolved on a motion to dismiss, where all allegations must be accepted as true. The First Department has expressly held that the enforceability of a contractual limitation of liability is a question of fact where fraud or willful misconduct is alleged, and that such a question is inappropriate for resolution on a pre-answer motion. See Banc of America Securities LLC v. Solow Bldg. Co. II LLC, 47 A.D.3d 239, 244 (1st Dep't 2007).
The Complaint alleges fraud with scienter. On this motion, the Court must accept as true the Complaint's allegations that Vantor knowingly delivered false valuations and concealed evidence of the inflation. If those allegations are taken as true — as they must be under the CPLR § 3211(a)(7) standard — then the underlying conduct is fraud, and the liability cap is inapplicable as a matter of law.
IV.C.3. Key Authorities
• Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384–85 (1983) — The Court of Appeals held that limitation of liability clauses will not be enforced to shield a party from its own gross negligence or willful misconduct. Such clauses are unenforceable as against public policy when applied to intentional wrongdoing. This is the seminal case on the enforceability of limitation of liability clauses under New York law.
• Sommer v. Stonefield Enterprises, 79 N.Y.2d 540, 553–54 (1992) — The Court of Appeals held that limitation of liability clauses are to be strictly construed and are unenforceable where fraud is alleged. The Court emphasized that public policy precludes enforcement of such clauses where the party seeking protection engaged in fraudulent or willful conduct.
• Metropolitan Life Ins. Co. v. Noble Lowndes Int'l, Inc., 84 N.Y.2d 430, 436–37 (1994) — The Court of Appeals held that "fraud vitiates all contractual protections," including limitation of liability provisions. This holding is categorical: where fraud is established, no contractual provision can serve to limit the wrongdoer's exposure.
• Banc of America Securities LLC v. Solow Bldg. Co. II LLC, 47 A.D.3d 239, 244 (1st Dep't 2007) — The First Department held that the enforceability of a contractual limitation of liability is a question of fact where fraud or willful misconduct is alleged, and that such a question is not appropriate for resolution on a motion to dismiss.
IV.C.4. Anticipated Court Questions
Q: "The parties are sophisticated commercial entities. Why shouldn't I enforce the bargained-for liability cap?"
A: Your Honor, New York courts have consistently held that even sophisticated commercial parties cannot contractually insulate themselves from the consequences of fraud. This is not a question of commercial sophistication or freedom of contract — it is a question of public policy. The Court of Appeals in Metropolitan Life stated it plainly: "fraud vitiates all contractual protections." The parties may bargain for limitation of liability provisions to allocate ordinary commercial risk, but they cannot bargain for a shield against intentional wrongdoing.
Moreover, the FAA itself recognizes this distinction. Section 9.1, the indemnification provision, specifically carves out "negligence, fraud, willful misconduct, or material breach" from Vantor's protections. The parties understood that fraud-based liability is categorically different from liability for ordinary errors. The § 9.3 cap was intended to limit Vantor's exposure for the type of routine valuation mistakes that can occur in a complex fund administration environment. It was not intended to cap Vantor's exposure for an eleven-quarter scheme of systematic fraud causing $287 million in harm at approximately 1% of the damage. That result would not enforce the bargain; it would reward the very fraud the cap was never intended to insulate.
Q: "But hasn't your client also argued breach of contract? If the contract claims involve the same conduct, doesn't the cap apply to those?"
A: We acknowledge that the liability cap may have potential relevance to a pure contract claim predicated on negligent performance — that is, if the conduct at issue were determined to be mere negligence rather than fraud. The breach of contract claim may ultimately be subject to a separate damages analysis on that basis. However, the fraud claims seek damages for intentional wrongdoing, and the cap is categorically inapplicable to those claims under Metropolitan Life, Sommer, and Kalisch-Jarcho. At the motion to dismiss stage, where all of Ironside's allegations — including its allegations of intentional fraud — must be accepted as true, the Court cannot cap damages across all causes of action based on a contractual provision that is unenforceable as to the fraud counts. Whether the cap applies to any particular claim is a fact-dependent question that requires resolution of whether Vantor's conduct constitutes fraud or willful misconduct — a question that cannot be answered on the pleadings.
IV.D. Argument 4: Unjust Enrichment Is Precluded by Express Contract
IV.D.1. Vantor's Position
Vantor argues that the unjust enrichment claim (Count VII) should be dismissed because the FAA is a valid, binding agreement between the parties that governs the same subject matter as the unjust enrichment claim. Vantor relies on the general rule that a quasi-contractual claim for unjust enrichment cannot be maintained where an express contract exists between the parties covering the same subject matter. Vantor contends that because the FAA governs Vantor's provision of valuation services and Ironside's payment of fees for those services, there is no gap in the contractual framework that would justify resort to a quasi-contractual theory of recovery.
IV.D.2. Our Rebuttal Talking Points
While the general rule stated by Vantor is correct as an abstract proposition, it does not support dismissal of Count VII at the pleading stage under the circumstances of this case. The following points should be made:
Unjust enrichment may be pled as an alternative theory of recovery. Under New York's liberal pleading rules, a plaintiff may plead unjust enrichment as an alternative or additional theory of recovery where there is a bona fide dispute as to the existence, scope, or enforceability of the governing contract. See CPLR § 3014 (permitting alternative and inconsistent pleading); IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009). Here, there is a genuine dispute about the scope and enforceability of the FAA. Vantor itself contends that FAA § 9.3 limits all recovery to $2.98 million. If the Court were to agree that the cap constrains the contract claim but not the fraud claims, the scope and applicability of the FAA are genuinely in dispute — creating precisely the type of situation in which alternative pleading of unjust enrichment is appropriate.
Unjust enrichment reaches benefits retained through fraudulent performance. The unjust enrichment claim targets the $9.28 million in total fees that Vantor received over the life of the FAA — fees that were earned through a fraudulently performed engagement. Where a contract is vitiated or rendered voidable by fraud, unjust enrichment serves as an independent basis for recovering benefits conferred on the wrongdoer. The principle is simple: Vantor should not be permitted to retain the fruits of an engagement it performed fraudulently. If the FAA is ultimately held to be vitiated by Vantor's fraud — or if the scope of the contractual remedies is disputed — unjust enrichment provides an equitable mechanism for recovering the fees Vantor received.
Dismissal of unjust enrichment at the pleading stage is premature. New York courts routinely permit unjust enrichment to proceed alongside breach of contract claims at the pleading stage, particularly where the scope or enforceability of the contract is disputed. See Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011). Dismissal is warranted only where it is undisputed that a valid, enforceable contract governs the precise subject matter and there is no legitimate basis for questioning its applicability. That is not the case here.
IV.D.3. Key Authorities
• Corsello v. Ashgrove & Co. New York, Inc., 18 N.Y.3d 777, 790–91 (2012) — The Court of Appeals held that unjust enrichment may not be maintained where there is an express contract governing the same subject matter, but confirmed that the claim may be pled in the alternative where the scope or validity of the contract is in dispute.
• IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009) — The Court of Appeals held that unjust enrichment may be pled alongside breach of contract in the alternative where there is a genuine dispute about the scope or enforceability of the contract. This is directly applicable here given the dispute over the FAA § 9.3 liability cap.
• Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011) — The Court of Appeals held that at the pleading stage, where the validity or scope of a contract is in dispute, alternative theories including unjust enrichment are permissible and should not be dismissed on a pre-answer motion.
IV.D.4. Anticipated Court Questions
Q: "There's an express contract here — the FAA. Why should I allow a quasi-contract claim?"
A: Your Honor, because the parties dispute the scope and enforceability of the FAA — particularly the § 9.3 liability cap. Vantor argues the cap limits all recovery to $2.98 million; we argue it is unenforceable as to the fraud claims. If the contract limits Ironside's recovery on the contract claim to $2.98 million, but the fraud claims seek recovery for $287 million in intentionally inflicted harm, equity requires an alternative basis to recover the $9.28 million that Vantor received in fees for services it performed fraudulently. That is precisely what the unjust enrichment claim provides. It is pled in the alternative, which is expressly permitted under CPLR § 3014, and New York's highest court has repeatedly endorsed this pleading approach at the pre-answer stage. See IDT Corp., 12 N.Y.3d at 142; Mandarin Trading, 16 N.Y.3d at 182.
We also note that this is the lowest-stakes claim in the case — the unjust enrichment claim seeks disgorgement of $9.28 million in fees, while the fraud and breach of contract claims seek $287 million in compensatory damages plus consequential and punitive damages. Preserving the unjust enrichment claim imposes no prejudice on Vantor and is consistent with established pleading rules.
IV.E. Argument 5: Economic Loss Doctrine Bars All Tort Claims
IV.E.1. Vantor's Position
Vantor argues that all of Ironside's tort claims — the fraud claim (Count I), the fraudulent concealment claim (Count II), the negligent misrepresentation claim (Count III), the breach of fiduciary duty claim (Count V), and the aiding and abetting fraud claim (Count VI) — seek purely economic losses arising from a contractual relationship and are therefore barred by the economic loss doctrine. Vantor contends that the economic loss doctrine prohibits recovery in tort for purely economic losses that are the consequence of a breach of a contractual obligation, and that all of Ironside's claimed damages (overvaluation of fund positions, consequential losses, reputational harm) are economic in nature and arise from the parties' contractual relationship under the FAA.
IV.E.2. Our Rebuttal Talking Points
Vantor's economic loss doctrine argument fundamentally misapplies the doctrine. The following points should be made:
The economic loss doctrine does not bar fraud claims. This is the single most important point. New York's economic loss doctrine bars negligence-based tort claims for purely economic losses where there is no personal injury or property damage. It does not bar claims based on intentional torts, and specifically does not bar fraud claims. The Second Circuit, applying New York law, has squarely held that "the economic loss doctrine does not bar fraud claims." Adriatic Specialty Insurance v. Aniero Concrete Co., 404 F.3d 566, 584–85 (2d Cir. 2005). Similarly, in Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000), the Second Circuit held that a fraud claim premised on misrepresentation of present fact survives the economic loss doctrine even where a contract governs the parties' relationship. This is settled law.
The rationale is self-evident: the economic loss doctrine exists to prevent parties from circumventing the bargained-for allocation of risk in a contract by recasting a mere failure of performance as a tort. But fraud is categorically different from a failure of performance. Where a party intentionally deceives another, the law provides tort remedies regardless of whether the parties also have a contractual relationship. To hold otherwise would mean that the existence of a contract immunizes a party from fraud liability — a result that would be both absurd and contrary to public policy.
Ironside's fraud claims (Counts I and II) and its aiding and abetting fraud claim (Count VI) are all based on intentional tortious conduct. The economic loss doctrine is categorically inapplicable to these claims.
The "special relationship" exception applies to the negligent misrepresentation claim. The negligent misrepresentation claim (Count III) does sound in negligence, and the economic loss doctrine is therefore potentially relevant. However, there is a well-recognized exception to the economic loss doctrine for negligent misrepresentation claims where the defendant occupied a "special relationship" with the plaintiff — specifically, where the defendant was a professional service provider who owed a duty of care beyond its contractual obligations. See Parrott v. Whitfield Castellan CPAs LLP, 95 N.Y.2d 479, 483–84 (2000).
The classic test for the "special relationship" exception was articulated by the Court of Appeals in Credit Alliance Corp. v. Marlowe Enterprises, 65 N.Y.2d 536, 551 (1985). Under Credit Alliance, a negligent misrepresentation claim is cognizable where: (1) the defendant was aware that its work product was to be used for a particular purpose; (2) a known party or parties relied on the work product in furtherance of that purpose; and (3) there was some conduct on the part of the defendant linking it to the relying party that evinced the defendant's understanding of that reliance. All three prongs are satisfied here:
(1) Vantor was aware that its valuations would be used by Ironside to report NAV to investors, make investment and redemption decisions, and submit regulatory filings;
(2) Ironside — a known party — relied on Vantor's valuations in furtherance of those purposes; and
(3) Vantor's conduct — including its marketing of its services as "independent pricing and valuation," its direct delivery of NAV reports to Ironside, and its acknowledgment of Ironside's reliance in the FAA — evinces its understanding of that reliance.
The economic loss doctrine does not apply to intentional torts, including aiding and abetting fraud. The aiding and abetting fraud claim (Count VI) alleges that Vantor's corporate officers — Raymond Kettler and Susan Hargrove — aided and abetted the fraud committed by Orris and Rajaram through their supervision, ratification, or knowing failure to prevent the delivery of false valuations. This claim is based on intentional tortious conduct. The economic loss doctrine is categorically inapplicable to intentional torts.
The breach of fiduciary duty claim, if the relationship is fiduciary in nature, also falls outside the economic loss doctrine. A fiduciary owes duties that exist independently of any contract, and breach of those duties gives rise to tort liability regardless of the economic nature of the losses. If the Court determines (or preserves for discovery the question of whether) a fiduciary relationship existed, the economic loss doctrine does not bar Count V.
IV.E.3. Key Authorities
• Adriatic Specialty Insurance v. Aniero Concrete Co., 404 F.3d 566, 584–85 (2d Cir. 2005) (applying New York law) — The Second Circuit held that the economic loss doctrine does not bar fraud claims. The court explained that the doctrine applies only to negligence claims and has no application to claims based on intentional wrongdoing.
• Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000) (applying New York law) — The Second Circuit held that a fraud claim premised on a misrepresentation of present fact survives the economic loss doctrine even where a contract governs the parties' relationship.
• Parrott v. Whitfield Castellan CPAs LLP, 95 N.Y.2d 479, 483–84 (2000) — The Court of Appeals held that a negligent misrepresentation claim is cognizable where a professional service provider owed a duty of care beyond its contractual obligations, applying the "special relationship" exception to the economic loss doctrine.
• Credit Alliance Corp. v. Marlowe Enterprises, 65 N.Y.2d 536, 551 (1985) — The Court of Appeals articulated the three-prong test for the "special relationship" exception: (1) awareness that the work product was to be used for a particular purpose, (2) reliance by a known party in furtherance of that purpose, and (3) conduct linking the parties evincing the defendant's understanding of reliance.
IV.E.4. Anticipated Court Questions
Q: "This is a contract dispute between two commercial parties. Why should I allow tort claims that are just another way of saying Vantor didn't perform the contract?"
A: Because Vantor didn't merely fail to perform — it lied. The economic loss doctrine prohibits negligence suits for purely economic harm where the parties' relationship is governed by contract. But it does not bar fraud. New York's highest court has repeatedly held that fraud claims survive the economic loss doctrine because fraud involves a qualitatively different wrong — intentional deception — that the law addresses through tort remedies regardless of whether a contractual relationship exists. The fraud alleged here — intentional inflation of marks, concealment of internal communications documenting awareness of the inflation, and knowing delivery of false NAV calculations over eleven consecutive quarters — goes far beyond a failure of contractual performance. It is systematic, intentional deception. The economic loss doctrine was not designed to, and does not, immunize that conduct from tort liability.
Q: "What about the negligent misrepresentation claim specifically — doesn't that sound in negligence?"
A: It does, Your Honor, and we acknowledge that the economic loss doctrine is potentially relevant to Count III. However, the claim falls squarely within the well-recognized "special relationship" exception articulated in Credit Alliance and applied in Parrott. Vantor was Ironside's independent valuation agent — a professional service provider entrusted with a function upon which Ironside, its investors, and regulators necessarily relied. All three prongs of the Credit Alliance test are met: Vantor knew its valuations would be used for NAV reporting, investor communications, and regulatory filings; Ironside was a known party that relied on those valuations; and Vantor's conduct — including its direct delivery of NAV reports, its marketing of itself as an "independent" pricing service, and the FAA's description of its role — evinced its understanding of that reliance. Under these circumstances, the negligent misrepresentation claim is cognizable notwithstanding the economic loss doctrine.
IV.F. New Reply-Brief Argument: Martin Act Preemption
IV.F.1. Vantor's Position (Raised for First Time in Reply Brief)
In its reply brief dated April 4, 2025, Vantor argued for the first time that the Martin Act (N.Y. General Business Law Article 23-A) preempts Ironside's common-law fraud claims. Vantor contends that because the alleged conduct — misvaluation of securities positions — arises in the "securities context," Ironside's fraud claims fall within the Martin Act's ambit and are preempted by the Attorney General's exclusive enforcement authority under the statute. This argument was not raised in Vantor's opening motion papers dated February 28, 2025, and Ironside had no opportunity to address it in its opposition brief.
IV.F.2. Our Rebuttal Talking Points
This argument should be rejected on both procedural and substantive grounds.
Procedural objection — the argument is waived. The Martin Act preemption argument was raised for the first time in the reply brief and should be deemed waived. Arguments raised for the first time in reply deprive the opposing party of the opportunity to respond and are generally not considered by courts. At minimum, Ironside should be afforded the opportunity to respond to this new argument. We have prepared a sur-reply letter brief dated April 9, 2025 that addresses the Martin Act preemption issue. We respectfully request that the Court either decline to consider the argument or grant leave to file our sur-reply.
On the merits, the Martin Act does not preempt common-law fraud claims. The Court of Appeals definitively resolved this question in Assured Guaranty (UK) Ltd. v. Brightwater Trust Bank Inv. Mgmt. Inc., 18 N.Y.3d 341 (2011). In Assured Guaranty, the Court confirmed that the Martin Act does not preempt private common-law fraud claims. The Court explained that while the Martin Act vests exclusive enforcement authority in the Attorney General, that exclusivity applies only to private causes of action brought under the Martin Act itself. It does not foreclose private fraud claims brought under the common law. The Court's analysis rested on both the text and legislative history of the Martin Act, and the holding is unambiguous: "The Martin Act does not preempt common-law claims." Id. at 350.
This dispute does not involve the sale or offer of securities. Even setting aside the holding in Assured Guaranty, the Martin Act's substantive provisions are directed at fraudulent practices in the offer, sale, and purchase of securities. This dispute does not involve the sale or offer of securities. It involves fund administration and valuation services provided by a fund administrator under a services agreement. Vantor is not a securities dealer, broker, or issuer. It is a back-office service provider that was retained to price illiquid assets. The Martin Act's substantive provisions simply do not apply to the conduct at issue.
IV.F.3. Key Authorities
• Assured Guaranty (UK) Ltd. v. Brightwater Trust Bank Inv. Mgmt. Inc., 18 N.Y.3d 341, 350–53 (2011) — The Court of Appeals held that the Martin Act does not bar private common-law fraud claims. The Court's analysis established that the Attorney General's exclusive enforcement authority under the Martin Act does not preempt traditional common-law remedies. The legislative history and text of the Martin Act demonstrate that the statute was intended to supplement, not supplant, common-law fraud protections. This is the controlling authority on the issue and is directly dispositive of Vantor's argument.
• Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. P'ship, 12 N.Y.3d 236, 244 (2009) — This pre-Assured Guaranty decision addressed the scope of Martin Act preemption and was subsequently superseded in relevant part by Assured Guaranty, which narrowed the scope of Martin Act preemption to exclude common-law fraud claims from its reach. Kerusa is relevant background but Assured Guaranty is the controlling authority.
IV.F.4. Anticipated Court Questions
Q: "This argument was raised in the reply. Should I consider it?"
A: We respectfully submit that it should not be considered, Your Honor. The Martin Act preemption argument was raised for the first time in the reply brief, denying Ironside any opportunity to brief the issue in opposition. Arguments raised for the first time in reply are routinely disregarded by courts for this very reason. Should the Court nonetheless entertain the argument, we respectfully request leave to file our sur-reply letter brief dated April 9, 2025, which addresses the issue in full.
On the merits, the argument fails under Assured Guaranty, where the Court of Appeals held unambiguously that the Martin Act does not preempt common-law fraud claims. Moreover, this dispute does not involve the sale or offer of securities — it involves fund administration and valuation services — and the Martin Act's substantive provisions are simply inapplicable. This argument is a last-ditch effort that lacks merit, and its late presentation underscores its weakness.
V. OVERARCHING STRATEGIC NOTES FOR ORAL ARGUMENT
V.1. Theme
The overarching theme for oral argument should be the following:
This is not a case about a service provider making ordinary valuation errors. This is a case about an eleven-quarter, systematic fraud in which Vantor knowingly delivered fabricated marks to Ironside, concealed internal communications documenting its awareness of the inflation, and caused $287 million in aggregate overvaluation across forty-seven positions in three funds — harming Ironside, its limited partners, and the integrity of reported regulatory filings.
Every response to the Court's questions should be anchored in this theme. Vantor's motion seeks to recharacterize a fraud case as a contract dispute and to eliminate, at the threshold, the causes of action and damages theories that give the case its full scope. The Court should not permit that recharacterization at the pleading stage.
V.2. Key Factual Anchors to Emphasize
The following factual points should be woven into argument as appropriate. These are the facts that most powerfully distinguish this case from an ordinary fund administration dispute:
• The internal Vantor emails. The internal Vantor emails between Nathan Orris and Deepa Rajaram, obtained via CPLR § 3102(c) subpoena to DataVault Solutions Inc. (a cloud-based document management provider used by Vantor), demonstrate scienter. These emails show that Orris and Rajaram were aware that the marks they were delivering to Ironside were inflated and that internal model adjustments were being applied to inflate valuations above observable market inputs. These emails are the documentary linchpin of the fraud allegations and should be referenced repeatedly.
• The independent re-pricing report. Harmon-Bryce Valuation Advisors LLC (led by Dr. Lena Galbraith, CFA, ASA) independently re-priced all forty-seven positions using market-standard methodologies and found aggregate overvaluation of $287 million across the eleven-quarter period (Report Ref: HBVA-2023-0922-IRON). This is not Ironside's estimate — it is the conclusion of an independent, credentialed valuation firm.
• The forensic accounting damages analysis. Kessler Forensic Accounting Group PC (Martin Kessler, CPA/CFF) quantified total damages at approximately $382 million across all categories, including compensatory, consequential, and fee disgorgement (Report Ref: KF-2025-0110-ICM). This comprehensive damages analysis supports Ironside's claim for compensatory, consequential, and disgorgement relief.
• The duration and scope of the scheme. The overvaluation was not a one-time error or an isolated mistake. It spanned eleven consecutive quarters (Q1 2021 through Q3 2023), affected three separate funds (Fund I: $156.4 million in overvaluation; Fund II: $88.7 million; Fund III: $41.9 million), and peaked at $52.3 million in a single quarter (Q4 2022), when reported NAV was overstated by 8.6%. The duration and breadth of the misvaluation are inconsistent with innocent error and consistent only with systematic fraud.
• Vantor's incomplete and evasive response to Ironside's inquiries. In response to Ironside's August 4, 2023 inquiry (sent to Nathan Orris), in which Ironside requested explanation and documentation regarding pricing discrepancies, Vantor's response was materially incomplete. Of tw

BENCH MEMO FOR ORAL ARGUMENT MOTION TO DISMISS

I. INTRODUCTION AND PURPOSE

II. PROCEDURAL POSTURE

III. SUMMARY OF VANTOR'S FIVE MTD ARGUMENTS

IV. ARGUMENT-BY-ARGUMENT ANALYSIS

V. OVERARCHING STRATEGIC NOTES FOR ORAL ARGUMENT

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