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BANK OF NEW YORK MELLON v. COMMERZBANK

No. 372, 2012.

65 A.3d 539 (2013)

The BANK OF NEW YORK MELLON, solely in its capacity as Property Trustee pursuant to a certain Amended and Restated Trust Agreement described below, Plaintiff Below, Appellant, v. COMMERZBANK CAPITAL FUNDING TRUST II; Commerzbank Capital Funding LLC II; and Commerzbank Aktiengesellschaft, Defendants Below, Appellees.

Supreme Court of Delaware.

Decided: March 19, 2013.

Reargument Denied May 2, 2013.

Attorney(s) appearing for the Case

Collins J. Seitz, Jr. (argued), Garrett B. Moritz , and S. Michael Sirkin, Esquires , Seitz Ross Aronstam & Moritz LLP, Wilmington, Delaware; Of Counsel: Sigmund S. Wissner-Gross, Esquire , Brown Rudnick LLP, New York, NY; for Appellant.

William M. Lafferty , Thomas W. Briggs, Jr. , and Ryan D. Stottmann, Esquires , Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware; Of Counsel: Lawrence Byrne , Martin S. Bloor (argued), and Patrick C. Ashby, Esquires , Linklaters LLP, New York, NY; for Appellees.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

JACOBS, Justice.

In 2006, a German bank organized two affiliated entities under Delaware law. One of those entities sold a class of securities — Trust Preferred Securities — to investors as part of the bank's effort to raise capital. In 2009, the bank acquired a second German bank by merger, whereby the bank assumed an obligation of the acquired bank to make certain payments with respect to a class of the acquired bank's securities. Post-merger, the...

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