In the United States Court of Appeals for the Second Circuit

AUGUST TERM 2022

No. 21-2726

MARC S. KIRSCHNER, solely in his capacity as Trustee of The Millennium Lender Claim Trust Plaintiff-Appellant,

v.

JP MORGAN CHASE BANK, N.A., JP MORGAN SECURITIES LLC, CITIBANK, N.A., BANK OF MONTREAL, BMO CAPITAL MARKETS CORP., SUNTRUST ROBINSON HUMPHREY, INC., SUNTRUST BANK, CITIGROUP GLOBAL MARKETS, INC., Defendants-Appellees. *

On Appeal from the United States District Court for the Southern District of New York

ARGUED: MARCH 9, 2023 DECIDED: AUGUST 24, 2023

* The Clerk of Court is directed to amend the caption as set forth above. Before: CABRANES, BIANCO, and PÉREZ, Circuit Judges.

Plaintiff-Appellant Marc S. Kirschner brought a series of claims in New York state court arising out of a syndicated loan transaction facilitated by the defendants-appellees, a group of financial institutions. Plaintiff’s appeal presents two issues. The first issue presented is whether the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge) had subject matter jurisdiction over this action pursuant to the Edge Act, 12 U.S.C. § 632. The second issue presented is whether the District Court erroneously dismissed plaintiff’s state-law securities claims on the ground that he failed to plausibly suggest that notes issued as part of the syndicated loan transaction are securities under Reves v. Ernst & Young, 494 U.S. 56 (1990).

We hold that the District Court had jurisdiction under the Edge Act because defendant-appellee JP Morgan Chase Bank, N.A. engaged in international or foreign banking as part of the transaction giving rise to this suit. We also hold that the District Court did not erroneously dismiss plaintiff’s state-law securities claims because plaintiff failed to plausibly suggest that the notes are securities under Reves.

We accordingly AFFIRM the District Court’s September 24, 2018 order determining that it had jurisdiction pursuant to the Edge

2 Act and AFFIRM its May 22, 2020 order dismissing plaintiff’s state- law securities claims.

CHRISTOPHER P. JOHNSON (Kyle A. Lonergan, Joshua J. Newcomer, and Grant L. Johnson, on the brief), McKool Smith P.C., New York, NY, for Plaintiff-Appellant.

JEFFREY B. WALL (Christopher M. Viapiano, Zoe A. Jacoby, Ann-Elizabeth Ostrager, and Mark A. Popovsky, on the brief), Sullivan & Cromwell LLP, Washington, D.C. & New York, NY, for Defendants-Appellees JP Morgan Chase Bank, N.A. and J.P. Morgan Securities LLC.

Benjamin S. Kaminetzky, Lara Samet Buchwald, and Tina Hwa Joe, on the brief, Davis Polk & Wardwell LLP, New York, NY, for Defendants-Appellees Citibank N.A. and Citigroup Global Markets Inc.

J. Emmett Murphy and John C. Toro, on the brief, King & Spalding LLP, New York, NY, for Defendants-Appellees SunTrust Robinson Humphrey, Inc. and SunTrust Bank.

3 Steve M. Dollar and Sean M. Topping, on the brief, Norton Rose Fulbright US