Odeon Capital Group LLC v AEON Biopharma, Inc.

2024 NY Slip Op 31088(U)

April 1, 2024

Supreme Court, New York County

Docket Number: Index No. 654547/2023

Judge: Melissa A. Crane

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 28 

INDEX NO. 654547/2023 

RECEIVED NYSCEF: 04/01/2024 

PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. MELISSA A. CRANE PART 

Justice 

60M 

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ODEON CAPITAL GROUP LLC, 

Plaintiff, 

- V -

AEON BIOPHARMA, INC.,FORMERL Y KNOWN AS 

PRIVETERRA ACQUISITION CORP., CONTINENTAL 

STOCK TRANSFER & TRUST COMPANY 

Defendant. 

---------------------------------------------------------------------------------X 

MOTION DATE N/A 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 

24,25,26 

were read on this motion to/for DISMISS 

Upon the foregoing documents, it is 

This entire case and every cause of action involve plaintiff trying to recover for its failure 

to receive its "promised contractual fee" for serving as underwriter to a "Business Combination" 

via a SP AC ( a special purpose entity) in the medical technology sector. Plaintiff does not assert 

any unique damages attributable to the alleged commission of a tort in its Complaint. Rather, it 

seeks contract damages of $1,255,800 for each of its claims (see complaint page 25). 

Plaintiff has pled a decent breach of contract claim. Defendants have apparently 

recognized this, because they have not moved to dismiss the claims for breach of contract. 

However, for the reasons stated on the record of April 1, 2024, the court dismisses all 

other causes of action against defendant AEON, because each of them merely duplicate the 

breach of contract claim. In addition to asking for the same damages, these other causes of 

action simply do not add anything beyond what the claim for breach of contract asserts. For 

654547/2023 ODE ON CAPITAL GROUP LLC vs. AEON BIOPHARMA, INC., FORMERLY KNOWN 

AS PRIVETERRA ACQUISITION CORP. ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 28 

INDEX NO. 654547/2023 

RECEIVED NYSCEF: 04/01/2024 

example, the cause of action for conversion ( Count II) merely seeks a vindication of plaintiffs 

contractual rights. 

Further, Count III, for tortious interference with the Trust Agreement, duplicates breach 

of contract concerning the Underwriting Agreement, because, as plaintiffs counsel conceded on 

the record, the way plaintiff was to be paid under the Underwriting Agreement was through the 

Trust Agreement. Thus, by allegedly "instructing Continental to distribute the entire amount 

held in the Trust Account without paying Odeon its deferred underwriting fee," plaintiff has only 

described the means by which defendants breached the contract. Hence, this claim duplicates the 

cause of action for breach of contract. In addition, Count III is insufficient because it does not 

allege sufficiently that the breach would not have occurred but for AEON's conduct (see 

Eisenberg v. Weisbecker, 190 A.D.3d 549, 550 (1 st Dep't 2021). 

Count IV for breach of the covenant of good faith and fair dealing also duplicates the 

claim for breach of contract. Although plaintiff alludes to this claim as a tort (it isn't), this 

characterization in no way describes a situation where plaintiff was deprived of its bargain even 

though the contract was not technically breached. This type of deprivation without breach is the 

essence of a claim for breach of the implied covenant of good faith and fair dealing ( see 

Carovillano v. Sirius XM Radio Inc., _Fsupp3d _, 2024 WL 450040, at *12 [S.D.N.Y. Feb. 6, 

2024][ "[t]he implied covenant is "breached when a party acts in a manner that, although not 

expressly forbidden by any contractual provision, would deprive the other party of the right to 

receive the benefits under their agreement" [citations omitted]]). Thus, "[w]here a good faith 

claim arises from the same facts and seeks the same damages as a breach of contract claim, it 

should be dismissed" (Mill Fin., LLC v. Gillett, 122 A.D.3d 98, 104 [1st Dep't 2014]. Here, all 

we have is a synonym for breach of contract. Accordingly, and also for the reasons discussed on 

654547/2023 ODE ON CAPITAL GROUP LLC vs. AEON BIOPHARMA, INC., FORMERLY KNOWN 

AS PRIVETERRA ACQUISITION CORP. ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 28 

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RECEIVED NYSCEF: 04/01/2024 

the record, the court dismisses Count IV for breach of the covenant of good faith and fair 

dealing. 

Count V for aiding and abetting breach of fiduciary duty suffers from the same problems 

as the tortious interference claim. Namely, this cause of action merely describes how AEON 

breached the contract. The allegations concerning substantial assistance are also insufficient. 

Accordingly, the court dismisses this Count. 

As plaintiff concedes, there is no basis to award punitive damages on the claim for breach 

of contract alone (see Eisenberg v. Weisbecker, 190 A.D.3d 549, 550, [1 st Dep't 2021] ["Plaintiff 

is not entitled to punitive damages on his contract claim because the complaint does not allege 

that the breach was associated with outrageous conduct that was part of a pattern directed at the 

public generally"]). However, even were a tort claim to survive, punitive damages would not be 

appropriate (see Seymour v. Hovnanian, 211 A.D.3d 549, 557 [!81 Dep't 2022 [defendant's 

"conduct does not rise to the level of wanton disregard of plaintiffs' property rights so as to 

warrant punitive damages"]). 

Accordingly, it is 

ORDERED THAT AEON's motion to dismiss Counts II-V of the complaint as well as 

any demand for punitive damages is granted without prejudice; and it is further 

ORDERED THAT Count I is severed and shall continue; and it is further 

654547/2023 ODE ON CAPITAL GROUP LLC vs. AEON BIOPHARMA, INC., FORMERLY KNOWN 

AS PRIVETERRA ACQUISITION CORP. ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 28 

INDEX NO. 654547/2023 

RECEIVED NYSCEF: 04/01/2024 

ORDERED THAT should the parties desire mediation, they should contact the part by 

email: SFC-Part60@nycourts.gov. 

4/1/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

4E66AD6ABE2~0BF7EA 

MELISSA A. CRANE, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

654547/2023 ODEON CAPITAL GROUP LLC vs. AEON BIOPHARMA, INC., FORMERLY KNOWN 

AS PRIVETERRA ACQUISITION CORP. ET AL 

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Motion No. 001 

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