#### FIRSTBANK PUERTO RICO, Appellant, v. James W. GIDDENS, as Trustee FOR the SIPA LIQUIDATION OF LEHMAN BROTHERS INC., Securities Investor Protection Corporation, Appellees.

16-2547-bk

United States Court of Appeals, Second Circuit.

April 26, 2017

Appearing for Appellant: Robert T. Honeywell, K&L Gates LLP (Brian D. Koosed, on the brief), New York, NY.

Appearing for Appellee James W. Gid-dens: Sarah L. Cave, Hughes Hubbard & Reed LLP, New York, NY.

Appearing for Appellee Securities Investor Protection Corporation: Kenneth J. Ca-puto, Senior Associate General Counsel, Securities Investor Protection Corporation (Josephine Wang, General Counsel, on the brief), Washington, DC.

Present: GUIDO CALABRESI, ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges.

SUMMARY ORDER

FirstBank Puerto Rico appeals from the July 8, 2016 opinion and order of the United States District Court for the Southern District of New York (Rakoff, *J.)*affirming the December 1, 2016 final order the United States Bankruptcy Court for the Southern District of New York (Chapman, *B.J.).*The bankruptcy court order granted the motion by James W. Giddens, Trustee for the SIPA Liquidation of Lehman Brothers Inc., to expunge FirstBank’s customer claim asserted under the Securities Investor Protection Act of 1970 (“SIPA”). The bankruptcy court order also denied First-Bank’s motion for summary judgment. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We affirm substantially for the reasons set forth in the thorough opinions of the bankruptcy and district courts below. The bankruptcy court correctly held, and the district court affirmed, that collateral es-toppel barred FirstBank from asserting an interest in the securities at issue that would allow it to recover from Lehman Brothers Inc; ("LBI”). FirstBank’s effort to avoid collateral estoppel by claiming that it is asserting an interest in the securities positions also fails, as FirstBank’s customer claim seeks to recover the same interest that FirstBank asserted in the *15prior litigation: the return of the securities or their value. *See*App’x at 3313-14.

In any event, we agree that FirstBank was not a “customer” of LBI within the meaning of the Securities Investor Protection Act (“SIPA”). FirstBank cannot demonstrate that it entrusted securities to LBI to qualify for “customer” status. “[M]ere delivery is not entrustment. Entrustment ... must bear the indicia of the fiduciary relationship between a broker and his public customer.” *CarVal UK Ltd. v. Giddens (In re Lehman Bros., Inc.),*791 F.3d 277, 283 (2d Cir. 2015) (internal quotation marks and citation omitted). To “entrust” a broker-dealer with securities, a customer must turn over its securities to the broker-dealer “so that the broker-dealer may do business on the customer’s behalf.” *Id.*LBI was not a fiduciary of FirstBank, and FirstBank did not deliver the securities to LBI so that LBI could conduct business on FirstBank’s behalf. The courts below correctly granted the motion to expunge FirstBank’s SIPA claim.

We have considered the remainder of FirstBank’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.