November 2, 2021 - by Elliot Ganz. As we recently predicted, Marc Kirschner, the litigation trustee for the Millennium Laboratories bankruptcy, has filed a Notice of Appeal with the United States Court of Appeals for the 2nd Circuit in his lawsuit against JPM Morgan and other lenders.  Among the issues Kirschner is appealing is the District Court’s ruling that the term loan B in that case was not a security subject to state (and, by extension, federal) securities laws.  Kirschner had originally filed claims alleging that the defendants perpetrated common law fraud and violated state securities laws when they originated and distributed a term loan to Millennium.  In May 2020, the District Court granted a motion to dismiss all the claims.  Kirschner then filed a motion to amend the complaint but in October, that, too, was dismissed.  Having exhausted his options in District Court, Kirschner is now taking the case, including the securities law claims, to the higher court.  We have written extensively about the existential threat posed by treating loans as securities and will continue to closely follow, and potentially engage, in, the appeal and reach out to federal regulators as appropriate.

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