EFTA01358953

Page 20 889 F.3d 116, *; 2018 U.S. App. LEXIS 11909, ** plaintiff freely entered into the membership agreement. The plaintiffs further claim that the refund mitigation technique caused Trilegiant to retain an unfair benefit by offering only partial refunds. But as with their failed CUTPA claim, they cannot argue that Trilegiant was unjustly enriched by not refunding additional, legitimate past membership fees to which its customers were not entitled. See, e.g., Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1070 (9th Cir. 2014) (requiring "unjust retention of [a] benefit" as an element of an unjust enrichment claim). CONCLUSION For the foregoing reasons, we hereby AFFIRM the judgment of the district court. In the Matter of: MPM Silicones, L.L.C. MOMENTIVE PERFORMANCE MATERIALS INCORPORATED, APOLLO GLOBAL MANAGEMENT, LLC, AD HOC COMMITTEE OF SECOND LIEN HOLDERS, Plaintiffs-Appellees, v. BOKF, NA, AS FIRST LIEN TRUSTEE, WILMINGTON TRUST, N.A., AS 1.5 LIEN TRUSTEE, Defendants-Appellants. U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, Plaintiff-Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, AS SUCCESSOR INDENTURE TRUSTEE, MOMENTIVE PERFORMANCE MATERIALS INCORPORATED, AD HOC COMMITTEE OF SECOND LIEN NOTEHOLDERS, APOLLO MANAGEMENT, LLC, AND CERTAIN OF ITS AFFILIATED FUNDS, Defendants-Appellees. Nos. 15-1682 (L); 15-1824 (CON), No. 15-1771 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 874 F.3d 787; 2017 U.S. App. LEXIS 20596; Bankr. L. Rep. (CCH) P83,176; 64 Bankr. Ct. Dec. 216 November 9, 2016, Submitted October 20, 2017, Decided SUBSEQUENT HISTORY: US Supreme Court certiorari denied by BOKF, N.A. v. Momentive Performance Materials, Inc., 2018 U.S. LEXIS 3822 (U.S., June 18, 2018) US Supreme Court certiorari denied by Wilmington Trust, N.A. v. Momentive Performance Materials, Inc., 2018 U.S. LEXIS 3753 (U.S., June 18, 2018) For internal use only For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0046939 CONFIDENTIAL SDNY_GM_00193123 EFTA01358953