### Odeon Capital Group LLC v AEONBiopharma, 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

----------------------------------------------------------------- ----------------X INDEX NO. 654547/2023

ODEON CAPITAL GROUP LLC, Plaintiff,

- V - AEON BIOPHARMA, INC.,FORMERLY 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 ofaction involve plaintifftrying to recover for its failure to receive its "promised contractual fee" for serving as underwriter to a "Business Combination" via a SPAC (a special purpose entity) in the medical technology sector. Plaintiffdoes not assert any unique damages attributable to the alleged commission ofa tort in its Complaint. Rather, it seeks contract damages of$1,255,800 for each ofits claims (see complaint page 25). Plaintiffhas pled a decent breach ofcontract claim. Defendants have apparently recognized this, because they have not moved to dismiss the claims for breach ofcontract. However, for the reasons stated on the record ofApril 1, 2024, the court dismisses all other causes ofaction against defendant AEON, because each ofthem merely duplicate the breach ofcontract 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 ofcontract asserts. For

654547/2023 ODEON CAPITAL GROUP LLC vs. AEON BIOPHARMA, INC., FORMERLY KNOWN AS PRIVETERRA ACQUISITION CORP. ET AL Motion No. 001 1 of 4 Page 1 of4 

### [* 1]NYSCEF DOC. NO. 28 INDEX NO. 654547/2023 RECEIVED NYSCEF: 04/01/2024 example, the cause ofaction for conversion (Count II) merely seeks a vindication ofplaintiffs contractual rights. Further, Count III, for tortious interference with the Trust Agreement, duplicates breach ofcontract concerning the Underwriting Agreement, because, as plaintiffs counsel conceded on the record, the wayplaintiffwas to bepaidunder the Underwriting Agreement was through the TrustAgreement. Thus, by allegedly "instructing Continental to distribute the entire amount held in the Trust Account withoutpaying Odeon its deferred underwriting fee," plaintiffhas only described the means bywhich defendants breached the contract. Hence, this claim duplicates the cause ofaction for breach ofcontract. In addition, Count III is insufficient because it does not allege sufficiently that the breach wouldnot have occurred but for AEON's conduct (see 

### Eisenberg v. Weisbecker, 190 A.D.3d 549, 550 (1 st Dep't2021). Count IV for breach ofthe covenant ofgood faith and fair dealing also duplicates the claim for breach ofcontract. Although plaintiffalludes to this claim as a tort (it isn't), this characterization in no way describes a situation where plaintiffwas deprived ofits bargain even though the contractwas not technicallybreached. This type ofdeprivation withoutbreach is the essence ofa claim for breach ofthe implied covenant ofgood faith and fair dealing (see 

### Carovillano v. SiriusXMRadio 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 ofthe 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 ofcontract claim, it shouldbe dismissed" 

### (Mill Fin., LLCv. Gillett, 122 A.D.3d 98, 104 [1st Dep't 2014]. Here, all we have is a synonym for breach ofcontract. Accordingly, and also for the reasons discussed on

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### [* 2]NYSCEF DOC. NO. 28 INDEX NO. 654547/2023 RECEIVED NYSCEF: 04/01/2024



### the record, the court dismisses Count IV for breach ofthe covenant ofgood faith and fair dealing. Count V for aiding and abetting breach offiduciary duty suffers from the same problems as the tortious interference claim. Namely, this cause ofaction merely describes how AEON breached the contract. The allegations concerning substantial assistance are also insufficient. Accordingly, the court dismisses this Count. As plaintiffconcedes, there is no basis to award punitive damages on the claim for breach ofcontract alone (see

### Eisenberg v. Weisbecker, 190 A.D.3d 549, 550, [1 st 

### Dep't2021] ["Plaintiff is not entitled to punitive damages on his contract claimbecause the complaint does not allege that the breach was associated with outrageous conduct that was part ofa pattern directed at the public generally"]). However, even were a tort claim to survive, punitive damages wouldnot be appropriate (see 

### Seymour v. Hovnanian, 211 A.D.3d 549, 557 [!81

### Dep't2022 [defendant's "conduct does not rise to the level ofwanton disregard ofplaintiffs' property rights so as to warrantpunitive damages"]). Accordingly, it is ORDERED THAT AEON's motion to dismiss Counts II-V ofthe 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 ODEON CAPITAL GROUP LLC vs. AEON BIOPHARMA, INC., FORMERLY KNOWN AS PRIVETERRA ACQUISITION CORP. ET AL Motion No. 001 3 of 4 Page 3 of4 

### [* 3]NYSCEF DOC. NO. 28 INDEX NO. 654547/2023 RECEIVED NYSCEF: 04/01/2024



### ORDERED THAT shouldthe parties desire mediation, they should contact the partby 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 Page4 of4 Motion No. 001 4 of 4 

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