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HIGHLAND CRUSADER OFFSHORE PARTNERS, L.P. v. CELTIC PHARMA PHINCO B.V.

Index No. 652056/13. Appeal No. 15950-15951-15951A. Case Nos. 2021-02508, 2021-02509, 2021-02814.

205 A.D.3d 520 (2022)

169 N.Y.S.3d 256

2022 NY Slip Op 03211

Highland Crusader Offshore Partners, L.P., et al., Plaintiffs, and NexPoint Credit Strategies Fund, Appellant, v. Celtic Pharma Phinco B.V. et al., Defendants, and Auven Therapeutics Management LLLP et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 17, 2022.

Attorney(s) appearing for the Case

Reid Collins & Tsai LLP, New York ( Yonah Jaffe of counsel), and Reid Collins & Tsai LLP, Austin, TX ( Craig A. Boneau , of the bar of the State of Texas, admitted pro hac vice of counsel), for appellant.

Milbank LLP, New York ( Scott A. Edelman of counsel), for respondents.

Concur—Mazzarelli, J.P., Oing, Moulton, González, Kennedy, JJ.

The court properly granted the CPLR 4401 motion of defendants-respondents Stephen Evans-Freke and Auven Therapeutics Management, LLLP. Plaintiff-appellant NexPoint Credit Strategies Fund lacks standing to bring the second and third causes of action because they arise under the Transaction Documents (as defined in the indenture) but do not seek repayment of the notes. Hence, section 5.4 of the indenture (the no-action clause), rather than section 5.9 (the exception to the...

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