2138747 Ontario, Inc., Appellant,v.Samsung C&T Corporation, et al., Respondents.BriefN.Y.Apr 24, 2018To be Argued by: JACOB BUCHDAHL (Time Requested: 30 Minutes) APL 2017-00129 New York County Clerk’s Index No. 653270/14 Court of Appeals of the State of New York 2138747 ONTARIO, INC., Plaintiff-Appellant, – against – SAMSUNG C&T CORPORATION, SAMSUNG AMERICA, INC. and SAMSUNG C&T AMERICA, INC. (f/k/a Samsung America, Inc.), Defendants-Respondents. BRIEF FOR PLAINTIFF-APPELLANT RESSLER & RESSLER 48 Wall Street New York, New York 10005 Tel.: (212) 695-6446 Fax: (212) 268-0287 – and – SUSMAN GODFREY LLP 1301 Avenue of the Americas, 32nd Floor New York, New York 10019 Tel.: (212) 336-8330 Fax: (212) 336-8340 Attorneys for Plaintiff-Appellant Date Completed: August 18, 2017 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED 7 STATEMENT OF JURISDICTION 7 STATEMENT OF THE CASE 8 Sophisticated Parties from Four Different Jurisdictions Signed the NDA and Agreed that it Would be Enforced Pursuant to New York Law A. 8 B. Samsung Breaches the NDA C. Procedural History 10 11 ARGUMENT 13 POINT I NEW YORK SHOULD HONOR THE PARTIES’ CHOICE THAT NEW YORK LOCAL LAW GOVERNS THE ENFORCEMENT OF THEIR CONTRACT 13 The Parties Chose New York Procedural Law, Including its Statute of Limitations A. 13 B. The Parties Intended to Select New York’s Six-Year Statute of Limitations By Selecting New York’s Procedural Law 16 C. CPLR 202 is a Statutory Choice of Law Directive .22 D. The Court’s CPLR 202 Precedent Is Consistent with the Right of Parties to Select New York’s Local Procedural Rules ,25 POINT II NEW YORK PUBLIC POLICY DOES NOT PREVENT PARTIES FROM CONTRACTING FOR NEW YORK’S OWN LEGISLATIVELY APPROVED SIX-YEAR STATUTE OF LIMITATIONS 29 CONCLUSION 31 TABLE OF AUTHORITIES Cases Bascunan v. Daniel Yarur ELS, 2016 WL 5475998 (S.D.N.Y. Sept. 28, 2016) Boutelle v. Boutelle, 337 P.3d 1148 (Wyo.2014) Burdett v. Remington Remington Arms Co., 854 F.3d 733 (5th Cir. 2017) Capital Z Financial Svcs. Fund II, L.P. v. Health Net, Inc., 2007 WL 6853651 (N.Y. Sup. Ct. N.Y. Cnty. Feb. 23, 2007) Diamond Waterproofing Systems, Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247 (2005) Duval v. Skouras, 44 N.Y.S.2d 107 (Sup. Ct. N.Y. Cnty. 1943) Geophysical Systems Corp. v. Raytheon Co., Inc., 988 F.2d 119 (9th Cir. 1993) Gibbons v. Fronton, 661 F. Supp. 2d 429 (S.D.N.Y. 2009) Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525 (1999) Green Acres Enterprises, Inc. v. Freeman, 87 S.W.2d 636 (Mo. Ct. App. 1994) In re Agent Orange Prod. Liab. Litig, 597 F. Supp. 740 (E.D.N.Y. 1984) In re Tronox Inc., 429 B.R. 73 (Banrk. S.D.N.Y. 2010) Insurance Co. ofN. Am. v. ABB Power Generation, 91 N.Y.2d 180 (1997) 24 24,28 24 15 14 23 24 24 25,26 24 24 24 passim ii IRB-Brasil Resseguros, S.A. v. Inepar Investments, S.A., 20 N.Y.3d 310 (2012) Isenberg v. Rainier, 127 N.Y.S. 411 (App. Term. 1911) Jahn v. 1-800-Flowers.com, Inc., 2002 WL 32362244 (W.D. Wis. Oct. 21, 2002) ... Kassner & Co. v. City of New York, 46 N.Y.2d 551 (1979) Katell v. Morgan Stanley Group, Inc., 1993 WL 10871 (Del. Ch. Jan. 14, 1993) passim 22 15 30 24 Landmark Ventures, Inc. v. H5 Techs., Inc., 2017 WL 3045793 (2d Dep’t July 19, 2017)... Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583 (1978) Miller v. Stauffer Chemical Co., 581 P.2d 345 (Idaho 1978) Mills v. Smith, 2006 WL 2570343 (W.D. Ky. Aug. 30, 2006) 21 21,22, 23 24 15 Ministers and Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466 (2015) passim Natale v. Upjohn Co., 356 F.2d 590 (3d Cir. 1966) Official Committee of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R. 20 (S.D.N.Y. 2002) Parish v. B.F. Goodrich Co., 235 N.W.2d 570 (Mich. 1975) Portfolio Recovery Associates, LLC v. King, 14 N.Y.3d 410(2010) 25 24 23 15,25,27 iii Reinhard v. Textron, Inc., 516 P.2d 1325 (Okl. 1973) Smith Barney, Harris Upham & Co. v. Lnckie, 85 N.Y.2d 193 (1995) Thornton v. T&W Tire, L.P., 410 F. Supp. 2d 1098 (W.D. Okla. 2006). 25 13, 14, 28,29 24 Statutes N.Y. Estate, Powers & Trust Law § 3-5.1(b)(2) N.Y. Gen. Oblig. Law § 5-1401 N.Y. Gen. Oblig. Law § 5-1402 19, 26,31 passim 30 Rules CPLR 202 passim CPLR 213 11,29,30 CPLR 5602 7,8 Other Authorities David H. Vernon, Statutes of Limitation in the Conflict of Laws: Borrowing Statutes, 32 Rocky Mnt. Law Review 287, 300 (1960) Michael Shanley, Jr., Choice of Law and the New York Borrowing Statute: a Conflict of Rationales, 35 Alb. Law R. 754, 754 n. 3 (1971) : Restatement (Second) of Conflicts of Laws § 187 Restatement (Second) of Conflicts of Laws § 2 Restatement (Second) of Conflicts of Laws § 4 23 23,24 4, 18 22 17 iv CORPORATE DISCLOSURE STATEMENT PURSUANT TO NYCRR PART 500.1(f) Counsel for Plaintiff-Appellant 2138747 Ontario, Inc., advises the Court that it has no parents, subsidiaries or affiliates. Dated: New York, New York August 18, 2017 SUSMAN GODFREY L.L.P. By: William (Christopher Carmody Jacob W. Buchdahl Shawn J. Rabin Cory S. Buiand 1301 Avenue of the Americas, 32nd FI. New York, NY 10019 (212)336-8330 Attorneys for Plaintiff - Appellant 2138747 Ontario, Inc. RESSLER & RESSLER By: Ellen R. Werther Bruce J. Ressler 48 Wall Street New York, NY 10005 (212) 695-6446 Attorneys for Plaintiff- Appellant 2138747 Ontario, Inc. v PRELIMINARY STATEMENT In 2008, five companies from four jurisdictions in three different countries signed a written non-disclosure agreement. All parties to the contract agreed that any disputes would be resolved exclusively by New York City courts applying New York’s substantive and procedural law. Without that agreement, these diverse parties would have been subject to unpredictable and conflicting substantive law and limitations periods from many different jurisdictions. Instead, the parties reasonably expected that New York’s commercial courts would enforce their agreement and that each signatory would be subject to the same substantive and procedural rules: those of New York. That is not what happened. The plaintiff in this case asserted a claim for breach of a non-disclosure agreement on behalf of two parties to the contract— one based in New York, the other in Ontario. On a motion to dismiss, the trial court ruled that the New York party’s claims were subject to New York’s six-year limitations period, but then dismissed the Ontario party’s almost identical claims based on Ontario’s two-year limitations period. The trial court did so pursuant to New York’s borrowing statute, CPLR 202, even though both parties’ claims were asserted against the same defendants, arose at the same time out of the same conduct, were governed by the same contract, and were covered by the same choice of New York’s procedural law. The Appellate Division affirmed, reasoning that by choosing New 1 York’s procedural law, the parties to the NDA were selecting not only New York’s local, six-year statute of limitations, but also its borrowing statute. In short, some but not all of the parties would get the benefit of local New York law. Under this ruling, the five parties to the same contract who agreed that it would be enforced pursuant to the same law— New York’s— will actually be subject to four different statutes of limitation: New York, Ontario, Korea, and New Jersey. The ruling not only frustrates the intent of the parties who contracted for uniform laws and enforcement, but threatens to undermine New York’s standing as a desirable jurisdiction and venue for sophisticated commercial litigation. If a contracting party cannot rely on New York courts to apply uniform rules to their disputes when they expressly agree to them, they will have little reason to select New York law to govern their agreements or expect New York courts to enforce them. New York public policy and this Court’s precedent both reject the outcome reached below. New York requires its courts to enforce New York choice of law provisions in contractual agreements and to fulfill the intent of the parties when interpreting and applying them. See N.Y. Gen. Bus. Oblig. L. § 5-1401; Ministers and Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466, 468 (2015). As this Court has previously explained, “[t]he Legislature desired for parties with multi-jurisdictional contacts to avail themselves of New York law if they so designate in their choice- 2 of-law provisions, in order to eliminate uncertainty and to permit the parties to choose New York’s well-developed system of commercial jurisprudence.” IRB- Brasil Resseguros, S.A. v. Inepar Investments, S.A., 20 N.Y.3d 310, 314-15 (2012). To that end, the general business obligations law specifically envisions that a sophisticated business can select New York law “in whole or in part,” permitting the selection of New York’s procedural rules as well as its substantive law. N.Y. Gen. Bus. Oblig. L. § 5-1401. Failing to enforce such a promise, worried the legislature, could “affect the standing of New York as a commercial and financial center.” IRB-Brasil, 20 N.Y.3d at 315. The law’s sponsor explained, “to encourage the parties of significant commercial, mercantile or financial contracts to choose New York law, it is important . . . that the parties be certain that their choice of law will not be rejected by a New York Court.” Sponsor’s Mem, Bill Jacket, L 1984, ch 421 at 8; see also IRB-Brasil 20 N.Y.3d at 314-316. There is no dispute that this is controlling New York law and established policy, and thus no question that the parties’ choice of law should be enforced and construed in a manner to effectuate the parties’ intent. The question presented on this appeal can therefore be stated simply: Do sophisticated commercial parties who agree to be governed by New York’s procedural law intend to select the uniform application of New York’s local, six-year statute of limitations, or do they intend to select New York’s borrowing statute, which will lead to the application 3 of different and at times unforeseen limitations periods depending on which party asserts a claim under the same contract. The answer, obviously, is that sophisticated parties would intend to achieve the certainty and uniformity of New York’s six-year limitations period. No one— not Samsung, the Supreme Court, or the Appellate Division— has ever suggested any reason why the parties would intend to select the borrowing statute, and none exists. This Court has twice clarified this common-sense interpretation of the parties’ agreement— that parties who choose New York law mean New York’s local law, and not the law of any other state. In IRB-Brasil, the Court held that where parties have selected New York law, they mean New York’s local law, not including its choice of law rules. 20 N.Y.3d at 315-16. In reaching that conclusion, the Court held that ‘“in the absence of a contrary indication of intention, the reference to the law of the state chosen by the parties is to the local law of the state of the chosen law.’” Id. at 316 (quoting Restatement (Second) of Conflicts of Laws § 187(3) (alterations omitted)). To do otherwise “would frustrate the Legislature’s purpose of encouraging a predictable contractual choice of New York commercial law and, crucially, of eliminating uncertainty regarding the governing law.” Id. Three years later, in Ministers and Missionaries, 26 N.Y.3d 466 (2015), this Court expressly extended IRB-Brasil to require courts to apply the local law of 4 New York when selected by the parties without regard to any statute that would lead to the application of the law of another jurisdiction: In IRB-Brasil . . . this Court held that, where parties’ include a New York choice-of-law clause in a contract, such a provision demonstrates the parties’ intent that courts not conduct a conflict-of-laws analysis. We now extend that holding to contracts that do not fall under General Obligations Law § 5-1401 and clarify that this rule obviates the application of both common-law conflicts-of-laws principles and statutory choice-of-law directives, unless the parties expressly indicate otherwise. Ministers & Missionaries, 26 N.Y.3d at 468. The Court’s reasoning applied the common-sense principle that when parties select New York law they expect to get it, and nothing else: “when parties include a choice-of-law provision in a contract, they intend that the law of the chosen state— and no other state— will be applied.” Id. at 476. Together, New York’s policy and this Court’s precedent answer the question presented by this case: parties who select New York’s procedural law mean New York’s local law, including its standard six-year statute of limitations for contract actions. Enforcing the parties’ agreement that New York’s local limitations period should apply does not risk any of the potential evils the borrowing statute sought to ameliorate. The primary purpose of CPLR 202 was to prevent forum shopping for more favorable limitations periods. See Insurance Co. of N. Am. v. ABB Power 5 Generation, 91 N.Y.2d 180, 187 (1997). There is no risk of forum shopping here where the parties have agreed that New York’s six-year statute of limitations will apply, and doubly so where there is also a mandatory forum selection clause that requires all parties to bring any action in New York.1 Rather, enforcing the parties’ agreement achieves certainty and uniformity, the other goals of CPLR 202, id., by providing at the time of contracting a certain limitations period that will uniformly apply to each signatory. The Appellate Division recognized that its decision was at odds with New York public policy: Plaintiff raises some valid policy issues in favor of its position that the borrowing statute should be not applied in this case, including that it is inconsistent with New York’s current policy to encourage businesses to use New York courts as their forum for dispute resolution and also that the salutary purpose of the borrowing statute, the avoidance of forum shopping, is satisfied by the parties’ agreement to have their disputes decided according to New York law. [Record on Appeal (“R”) at 496-97.] Despite recognizing that its decision was contrary to New York policy, the Appellate Division believed it was constrained by a misreading of this Court’s precedent. It held that the parties intended for CPLR 202 to apply when they chose to have the agreement enforced pursuant to This Court has recognized the validity of forum selection clause like that in the NDA. IRB- Brasil, 20 N.Y.3d at 315. According to the Appellate Division decision, this leaves the parties with a mandatory New York forum, but not the bargained for benefit of New York local law. 6 New York law because CPLR 202 is part of New York’s procedural law. This idea— that contracting parties intend for their selection of New York law to yield to New York’s statutory choice of law rules— was squarely presented, considered, and rejected in Ministers and Missionaries for the simple reason that when parties select New York law, “they intend that the law of the chosen state— and no other state— will be applied.” Ministers & Missionaries, 26 N.Y.3d at 467. QUESTIONS PRESENTED Question 1 Whether parties who agree that their contract should be enforced pursuant to New York law intend for New York’s local, six-year statute of limitations to be uniformly applied or rather intend for New York’s borrowing statute to apply resulting in different statutes of limitations depending on the residency of each party. Question 2 Whether New York’s public policy permits sophisticated commercial parties to agree that New York’s statute of limitations should be applied to their contract governed by New York law. STATEMENT OF JURISDICTION The Court has jurisdiction over the appeal pursuant to CPLR 5602 (a)(l)(ii) because the underlying action originated in the Supreme Court of the State of New York, County of New York, and while the decision of the Appellate Division did not finally resolve all claims in the action, all other claims were subsequently resolved and no appeal of those claims remains pending.2 2 One potential impediment to this appeal, raised in correspondence by the Clerk, was the fact that Plaintiffs other claims, asserted on behalf of entities not subject to CPLR 202, remained on 7 Appellant preserved its argument that the parties to the NDA selected New York’s local, six-year statute of limitations in Supreme Court and the Appellate Division. [R at 11-12; R at 3-4; R at 495.] STATEMENT OF THE CASE A. Sophisticated Parties from Four Different Jurisdictions Signed the NDA and Agreed that it Would be Enforced Pursuant to New York Law In the Fall of 2008, Defendants-Appellees Samsung C&T Corporation, Samsung America, Inc. and Samsung C&T America, Inc. (“Samsung”) signed a non-disclosure agreement (“NDA”) with SkyPower Corp. (“SkyPower”), one of Ontario’s leading renewable energy developers, and its majority shareholder LB SkyPower Inc. (“LB SkyPower”). [R at 73-74.] Samsung executed the NDA to evaluate a potential transaction with SkyPower and LB SkyPower. [Id. at 74, 79.] The NDA brought together parties from around the world so that the Samsung parties could evaluate a transaction with SkyPower and LB SkyPower that would enable Samsung to enter the Canadian renewable energy market. Samsung C&T Corporation is a Korean company and its two American affiliates are Delaware corporations with their principal places of business in New Jersey. SkyPower was an Ontario (Canada) corporation principally owned by LB appeal to the Appellate Division. Before the Court granted Plaintiffs motion for leave to appeal, however, Plaintiff dismissed that appeal and there are no other pending claims or appeals in this matter. It is therefore final under CPLR 5602(a)(l)(ii). A more detailed explanation of the now- dismissed appeal and this appeal’s finality can be found in Plaintiffs May 12, 2017 Letter to the Clerk of the Court. 8 SkyPower, a Delaware corporation with its principal place of business in New York City, itself wholly owned by Lehman Brothers, Inc., another Delaware corporation based in New York City. To avoid the complicated and unpredictable conflict-of-laws issues that can plague a global transaction, Lehman Brothers, which drafted the NDA, inserted a choice-of-law provision requiring that all disputes arising out of the NDA would be decided by New York courts, in New York City, and in accordance with the substantive and procedural laws of New York. The NDA reads: This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States District Courts located in the County of New York for any lawsuits, actions or other proceedings arising out of or relating to this Agreement and agree not to commence any such lawsuit, action or other proceeding except in such courts. . . . You hereby irrevocably and unconditionally waive any objection to the laying of venue of any lawsuit, action or other proceeding arising out of or relating to this Agreement in the courts of the State of New York or the United States District Courts located in the County of New York, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such court has been brought in an inconvenient forum. [R at 177 (emphasis added).] 9 B. Samsung Breaches the NDA After signing the NDA, Samsung engaged in months of diligence with SkyPower and LB SkyPower probing the most sensitive aspects of their business. In particular, Samsung gained access to a confidential data room housing LB SkyPower’s and SkyPower’s most sensitive proprietary information. [Id. at 74.] Samsung also met with SkyPower’s senior officers, executives, and employees, and sought and obtained highly confidential information concerning SkyPower’s business. [Id.] Samsung was required to keep all of this information confidential and use it only for the purpose of evaluating a potential transaction with LB SkyPower and SkyPower. [Id. at 174.] in violation of its contractual promise, and with the benefit of SkyPower’s and LB SkyPower’s confidential information, Samsung surreptitiously signed a memorandum of understanding with the Ontario government on December 12, 2008, rather than enter into the transaction contemplated by the NDA. [Id. at 80.] The memorandum of understanding enabled Samsung to use LB SkyPower and SkyPower’s confidential information to negotiate derivative green energy projects with the Ontario government. [Id.] A year later, Samsung publicly announced that it had entered into a Green Energy Investment Agreement with the Ontario government and was launching a series of solar and wind projects. Samsung 10 developed these projects using SkyPower and LB SkyPower’s confidential and proprietary information covered by the NDA. [Id. at 81.] Procedural HistoryC. On October 27, 2014, Appellant commenced this action in Supreme Court 3against Samsung for breach of the NDA and unjust enrichment. Samsung moved to dismiss Plaintiffs First Amended Complaint arguing, inter alia, that the claims asserted on behalf of SkyPower were barred by Ontario’s statute of limitations applicable through New York’s borrowing statute, CPLR 202. On September 29, 2015, Supreme Court (Oing, J.) correctly concluded that the parties to the NDA had effectively chosen New York’s statute of limitations to govern their contract by explicitly agreeing that New York law would govern the NDA’s “enforcement.” [R at 54.] The court erred, however, when it held that by choosing New York’s statute of limitations, the parties would not receive New York’s local statute of limitations embodied in CPLR 213, but rather the borrowing provisions of CPLR 202, which required application of various foreign statutes of limitation, including a two-year statute of limitations from Ontario. [Id. at 54-55.] 3 SkyPower and LB SkyPower assigned their claims against Samsung arising under the NDA to Plaintiff. Plaintiff is a creditor of Interwind Corp., SkyPower’s successor, which is now in bankruptcy proceedings in Ontario. SkyPower assigned its claims to Plaintiff pursuant to an order of the Ontario Superior Court of Justice (In Bankruptcy and Insolvency), which was acting pursuant to a provision of Ontario’s bankruptcy law that enables creditors to enforce and prosecute claims on behalf of bankrupt companies. [R at 201.] That court order authorized Plaintiff to prosecute SkyPower’s claims against Samsung. [Id. at 205-206.] 11 On October 16, 2015, Plaintiff-Appellant appealed from Supreme Court’s order. On appeal, Appellant argued that Supreme Court erred in applying the borrowing provisions of CPLR 202 because it ignored the parties’ agreement that only New York law should apply to the NDA’s enforcement, as required by Ministers & Missionaries and IRB-Brasil. Samsung made two arguments in support of affirmance: (1) CPLR 202 is part of New York’s procedural law selected by the parties; and (2) New York public policy prohibits parties from electing uniform application of New York’s six-year statute of limitations. On October 11, 2016, the Appellate Division issued a Decision and Order affirming the ruling below. The Appellate Division agreed with Appellant that the parties’ use of the word “enforcement” in the NDA effectively chose New York’s procedural law including New York’s statute of limitations. [R at 492.] However, it held that the parties’ selection of New York procedural law included CPLR 202 because “it is a statute of limitations in its own right.” Id. The Appellate Division rendered the decision despite finding that “Plaintiff raises some valid policy issues in favor if its position that the borrowing statute should not be applied in this case, including that it is inconsistent with New York’s current policy to encourage business to use New York courts as their forum for dispute resolution and also that the salutary purpose of the borrowing statute, the avoidance of forum shopping, is 12 satisfied by the parties’ agreement to have their disputes decided according to New York law.” [Id. at 496.] The Appellate Division denied Appellant’s motion to leave for appeal on December 29, 2016. The Court of Appeals granted Appellant’s motion for leave to appeal on June 22, 2017. ARGUMENT POINT I NEW YORK SHOULD HONOR THE PARTIES’ CHOICE THAT NEW YORK LOCAL LAW GOVERNS THE ENFORCEMENT OF THEIR CONTRACT The Parties Chose New York Procedural Law, Including its Statute ofA. Limitations The parties to the NDA agreed that the NDA “shall be governed by, construed and enforced in accordance with the laws of the State of New York,” and that any dispute concerning it would be resolved exclusively in New York courts. [R at 177 (emphasis added).] By using the word “enforced,” the parties agreed that New York law would govern not only the substantive legal issues in any dispute but also all procedural issues. This Court has twice concluded that including the phrase “enforce” or “enforcement” in a choice of law clause manifests the parties’ intent to apply New York’s procedural law to disputes arising under the agreement. In Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193 (1995), the Court decided a similar issue when it found that parties had effectively opted out of the Federal Arbitration 13 Act’s (“FAA”) rule that arbitrators decide issues of timeliness because the parties contracted to be ruled by New York’s procedural laws, which requires that courts decide whether a demand for arbitration is timely. In analyzing the choice of law provision, the Court reasoned that by agreeing that New York law would govern “the agreement and its enforcement,” the parties opted for New York’s procedural law to apply, not the FAA’s. See Luckie, 85 N.Y.2d at 20. Significantly, the Court found that the word “enforced” signaled the adoption of New York’s procedures, whereas contracts only “governed” by New York law meant only its substantive law. Id. It reasoned: Although the parties broadly agreed to arbitrate ‘any controversy’ arising from the customer agreements, that clause— like all other provisions in the contract— was subject to the parties’ additional qualification that New York State law provides the basis of decision for questions concerning not only the agreement, but more critically, its enforcement. Accordingly, we conclude that under this agreement the parties agreed to refer questions of timeliness to the courts by incorporating New York law. Id. (emphasis added). Luckie was reaffirmed in Diamond Waterproofing Systems, Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247, 253 (2005). Diamond Waterproof explicitly preserved Luckie and was careful to reaffirm that when parties “explicitly agree” to a “choice of law provision, which states that New York law shall govern both the agreement and its enforcement,” they adopt as binding New York’s procedural rules. Id. 14 New York’s procedural rules necessarily include its statutes of limitations. “Where the language in an agreement provides that the law of a particular jurisdiction will govern the agreement and its enforcement, then the law of that jurisdiction also governs statute of limitations issues.” Capital Z Financial Svcs. Fund II, L.P. v. Health Net, Inc., 2007 WL 6853651 (N.Y. Sup. Ct. N.Y. Cnty. Feb. 23, 2007) (Freedman, J.)(emphasis in the original); accord Portfolio Recovery Associates, LLC v. King, 14 N.Y.3d 410, 416 (2010) (“[Sjtatutes of limitations are considered procedural.”); see also Mills v. Smith, 2006 WL 2570343, at *2 (W.D. Ky. Aug. 30, 2006) (“The plain meaning of the term ‘enforced,’ . . . necessarily includes application of the New York statutes of limitation which are integral to the question of enforceability. To find otherwise would emasculate the term ‘enforced’ in the contract provision.”); John v. 1-800-Flowers.com, Inc., 2002 WL 32362244, at *10 (W.D. Wis. Oct. 21, 2002) (concluding that inclusion of the word “enforced” in choice of law provision “unambiguously includes” the statute of limitations of the chosen jurisdiction). Based on this authority, both Supreme Court and the Appellate Division correctly concluded that the parties to the NDA effectively chose New York’s procedural laws to apply to the enforcement of their agreement, including New York’s statutes of limitation. [R at 54; id. at 491-492 (Appellate Division found, “[T]he language of the choice-of-law provision in the NDA ... is broad and should 15 be interpreted as reflecting the parties’ intent to apply both the substantive and procedural law of New York state to their disputes.”).] B. The Parties Intended to Select New York’s Six-Year Statute of Limitations By Selecting New York’s Procedural Law. By agreeing that the contract would be enforced by New York law, the parties intended that New York’s six-year statute of limitations would govern all contract claims arising out of the NDA, regardless of who asserted them. Were it otherwise, there would be little point for the parties agreeing on New York’s procedural rules to govern their dispute, because they would achieve neither uniformity nor certainty. The outcome reached below makes no sense at all: it dictates a scenario in which five sophisticated parties negotiated a single forum and single set of procedural rules to govern their disputes (New York’s), but intended that the limitations period for resolving their disputes would depend on whether the party asserting that claim had its principal place of business in Ontario, Korea, New Jersey, or New York. This interpretation would mean that LB SkyPower’s claims would be subject to New York law and SkyPower’s claims— for the same exact breach of the same exact NDA— would to be subject to Ontario law. And if the Samsung parties asserted any claims arising from the NDA, their limitations period would be subject to Korean law in the case of Samsung C&T Corporation, and New Jersey in the case of its U.S. affiliates. And, if one of these parties changed its residency sometime after the contract was signed, then theoretically the 16 statute of limitations of a new state of country that no party contemplated at the time of contracting could somehow govern that parties’ claims. The parties did not intend to apply the law of several different jurisdictions to the same set of claims when they agreed that the NDA would “be governed by, construed and enforced in accordance with the laws of the State of New York.” Neither Samsung nor either Court below has ever suggested why sophisticated parties would intend such an unpredictable and disparate outcome, and none exists. This fact alone— what the parties would have reasonably intended— is dispositive to this appeal. The parties’ intent governs the court’s interpretation of a contract, including with respect to choice of law provisions. Ministers & Missionaries, 26 N.Y.3d at 475 (noting that the “parties intent” is “the basic tenet of contract interpretation”). This Court has twice in recent years held that when sophisticated parties agree that the law of New York should govern their dispute, they were plainly choosing New York’s local law, meaning New York law without reference to any rules that refer to the law of other jurisdictions, unless the parties expressly indicate otherwise.4 In the first case, IRB-Brasil, the Court held that parties who selected New York law intended for New York’s local law to apply without reference to any 4 “Local law,” also called domestic law, is “the body of standards, principles and rules, exclusive of its rules of Conflicts of Laws, which the courts of that state apply in the decision of controversies brought before them.” Restatement (Second) of Conflicts of Laws §4(1). 17 common-law rule that would lead to the application of the law of another jurisdiction. IRB-Brasil, 20 N.Y.3d at 314-315. In reaching that conclusion, the Court relied on Section 187 of the Restatement (Second) of Conflicts of Laws for the proposition that “in the absence of a contrary indication of intention, the reference to the law of the state chosen by the parties is to the local law of the state of the chosen law.” Id. at 315 (quoting Restatement (Second) of Conflicts of Laws § 187(3) (alterations omitted)). To do otherwise “would frustrate the Legislature’s purpose of encouraging a predictable contractual choice of New York commercial law and, crucially, of eliminating uncertainty regarding the governing law.” Id. IRB-Brasil technically left open the possibility that courts should still apply statutory choice-of-law rules like CPLR 202 even when parties select New York law to govern their disputes. But Ministers & Missionaries expressly extended IRB-Brasil to require courts to apply the local law of New York when selected by the parties without regard to any statute that would lead to the application of the law of another jurisdiction: In IRB-Brasil . . . this Court held that, where parties’ include a New York choice-of-law clause in demonstrates the parties’ intent that courts not conduct a conflict-of- laws analysis. We now extend that holding to contracts that do not fall under General Obligations Law § 5-1401 and clarify that this rule obviates the application of both common-law conflicts-of-laws principles and statutory choice-of-law directives, unless the parties expressly indicate otherwise. contract, such a provision Ministers & Missionaries, 26 N.Y.3d at 468. 18 The contract at issue in Ministers & Missionaries was a retirement and death benefit plan with a choice-of-law clause electing New York law. Id. at 468-69. The decedent had named his wife and his wife’s father as beneficiaries of the plan before divorcing her. He later died in Colorado without removing either of them as a beneficiary. Under Colorado law, the designation of the wife and the father as beneficiaries would automatically be revoked as a result of the divorce. Under New York law, only the wife would lose her beneficiary status. The estate argued that Colorado’s rule should be applied pursuant to New York Estate, Powers & Trust Law § 3-5.1(b)(2), which mandates that the issue of revocation is determined by the law of the state where the decedent was domiciled at the time of death, i.e., Colorado. The Court rejected that argument, holding that the choice of New York law excluded any statutory rules that would implicate the laws of another jurisdiction. CPLR 202 is exactly the type of provision that is excluded by the rule announced in Ministers & Missionaries because it frustrates the parties’ expectation that a single, uniform set of rules will apply to each of them. This Court used explicit language in explaining how to determine whether application of a New York statute or principle of law would frustrate or further the parties’ intent in selecting New York law: The question is whether section 3-5.1 (b) (2) should be characterized as part of New York’s substantive or “local law,” 19 which the contracting parties intended to apply, or whether it is simply a conflict-of-laws rule, which they did not intend to apply. Id. at 471. In squarely rejecting the application of any “conflicts-of-laws rule,” the Court explained: To do otherwise— by applying New York’s statutory conflict- of-laws principles, even if doing so results in the application of the substantive law of another stat< primary purpose of including a choice-of-law provision in a contract— namely, to avoid a conflict-of-laws analysis and its associated time and expense. Such an interpretation would also interfere with, and ignore, the parties’ intent, contrary to the basic tenets of contract interpretation. Id. at 475. This reasoning does not turn on the description, history, or purpose of -would contravene the the particular statute that calls for the application of the law of another state. It holds that any statute or rule that leads to the application of the law of another jurisdiction is inconsistent with the parties’ intent and should not be applied. Below, the Appellate Division rejected the applicability IRB-Brasil and Ministers & Missionaries based on its erroneous assumption that the “borrowing statute [CPLR 202] ... is not and has never been considered a statutory choice-of- law directive. It is a statute of limitations.” [R at 496.] For the reasons explained above, however, IRB-Brasil and Ministers & Missionaries do not permit the application of any New York statute that calls for the application of another state’s law to defeat the parties’ choice of New York law. The rule ensures that the parties’ intent that local New York law— and not the law of other jurisdictions— 20 supply the governing rules for their dispute. Neither the language nor the logic of Ministers & Missionaries provides an exception to this rule because the statute at issue is labeled a borrowing statute instead of something else. The rulings below suffer from another infirmity: the construction given by the Appellate Division renders the word “enforced” superfluous, needlessly violating the “fundamental tenet .... of contract interpretation that a court should seek an interpretation which does not render any term or phrase of a contract meaningless or superfluous.” Landmark Ventures, Inc. v. H5 Techs., Inc., 2017 WL 3045793, at *1 (2d Dep’t July 19, 2017). The NDA already selects a mandatory New York forum. [R at 177.] By default, any action filed in a New York forum is governed by New York’s whole procedural law (absent a contractual choice of law provision). See Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583, 588 (1978). By using the word “enforced,” the parties intended something different than the selection of New York’s whole procedural law, otherwise that term is wholly superfluous. The only reasonable inteipretation, which is entirely consistent with the Court’s decisions in IRB-Brasil and Ministers & Missionaries, is that they sought to select only New York’s local law and not provisions like CPLR 202 that lead to the application of the law of another state. 21 c. CPLR 202 is a Statutory Choice of Law Directive Under Ministers & Missionaries, any rule that prevents application of New York’s local law must yield to the parties’ intent that New York’s local law must apply, regardless of its label. The Appellate Division disagreed, and held that parties who select New York law intend to select statutes that lead to the application of the law of another state unless they qualify as a “statutory choice-of- law directive.” [R at 496 (“The borrowing statute, however, is not and has never been considered a statutory choice-of-law directive. It is a statute of limitations.”).] Even if this were a proper reading of Ministers and Missionaries the history, purpose, and operation of borrowing statutes generally and CPLR 202 specifically confirm that they are statutory choice-of-law directives. Borrowing statutes operate as choice of law rules because they determine which law should be applied when a cause of action has connections to more than one jurisdiction.3 At common law, the choice of law rule for statutes of limitations was that the law of the forum generally controlled the time within which causes of action had to be pursued— the lex fori rule. See Martin v. Julius Dierck, 43 N.Y.2d at 588; Isenberg v. Rainier, 127 N.Y.S. 411, 504 (App. Tenn. 1911) (Page, J., 3 “Conflicts of Laws,” is “an extremely wide area,” including “choice of law” rules that can be in the form of statutory directives— like CPLR 202— or common law principles. Restatement (Second) of Conflicts of Laws § 2 & cmt. a, § 6; accord id. § 2 (“Conflict of Laws is that part of the law of each state which determines what effect is given to the fact that the case may have a significant relationship to more than one state.”); Black’s Law Dictionary (defining conflict-of- law rules as “the legal principles relied on to determine preliminary issues of applicable law where more than one jurisdiction is involved in a dispute”). 22 dissenting); Parish v. B.F. Goodrich Co., 235 N.W.2d 570, 572 (Mich. 1975); Michael Shanley, Jr., Choice of Law and the New York Borrowing Statute: a Conflict of Rationales. 35 Alb. Law R. 754, 754 n. 3 (1971). As principles of conflicts of law became more developed generally, the legal community recognized that “the primary goal of Conflicts of Laws [is] to prevent the accident of a choice of forum from affecting the result” and that the current choice-of-law rule did not serve that purpose. David H. Vernon, Statutes of Limitation in the Conflict of Laws: Borrowing Statutes, 32 Rocky Mnt. Law Review 287, 300 (1960). Unhappy with the existing lex fori choice-of-law rule, “most states have enacted ‘borrowing statutes’ to resolve the possible conflicts of laws that may arise when a plaintiffs claim accrues outside of the forum.” Parish, 235 N.W.2d at 572; accord Martin v. Julius Dierck, 43 N.Y.2d at 588 (“To temper the rigid application of’ the lex fori “rule, most States have enacted ‘borrowing’ statutes which, although varying from State to State, ‘borrow’ the foreign Statute of Limitations of the jurisdiction in which the defendant or both parties resided or the jurisdiction in which the cause of action accrued, if to do so would bar the plaintiffs cause of action.”). “New York’s version of the borrowing statute, CPLR 202,” likewise modified the common law choice-of-law rule that lex fori controlled. Martin v. Julius Dierck, 43 N.Y.2d at 588-589; see also Duval v. Skouras, 44 N.Y.S.2d 107, 23 110 (Sup. Ct. N.Y. Cnty. 1943) (“This common law rule has been modified by Civil Practice Act, §13” (the predecessor to CPLR 202)). It addresses the choice between statutes of limitations that arise when a suit is brought in a New York forum but accrued in another jurisdiction. See Shanley, Jr., supra, at 754 (“In New York there is a statutory solution to choice of law problems involving the application of a statute of limitations. CPLR section 202 answers the question as to which state’s statute of limitations will prevail in a conflict of laws situation.”). Given its history, purpose, and operation, Courts in New York6 and around the country frequently conclude that borrowing statutes are choice of law rules or statutes.7 Accordingly, CPLR 202 is exactly the type of “statutory choice-of-law 6 See Bascunan v. Daniel Yarur ELS, 2016 WL 5475998, at *4 (S.D.N.Y. Sept. 28, 2016) (describing CPLR 202 as “New York State’s choice-of-law statute”); In re Tronox Inc., 429 B.R. 73, 105 n. 18 (Banrk. S.D.N.Y. 2010) (describing CPLR 202 as the applicable “New York choice of law mle[yy,Gibbons v. Fronton, 661 F. Supp. 2d 429, 432 (S.D.N.Y. 2009) (describing CPLR 202 as part of “New York’s choice of law rule[s]”); Official Committee of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R. 20, 30 (S.D.N.Y. 2002) (“New York’s choice of law rules for statutes of limitations is set forth in its ‘borrowing statute.’”); In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740, 810 (E.D.N.Y. 1984) (referring to CPLR 202 as a “special conflict of laws provision”). 7 See, e.g., Boutelle v. Boutelle, 337 P.3d 1148 (Wyo. 2014) (describing its borrowing statute as “a choice of law statute”); Thornton v. T&W Tire, L.P., 410 F. Supp. 2d 1098 (W.D. Okla. 2006) (“One such conflicts of law statute is Oklahoma’s borrowing statute. . . .”); Green Acres Enterprises, Inc. v. Freeman, 87 S.W.2d 636, 640 (Mo. Ct. App. 1994) (“[T]he borrowing statute constitutes a codification by the Missouri Legislature of a conflicts rule.”); Burden v. Remington Remington Arms Co., 854 F.3d 733, 735-36 (5th Cir. 2017) (“[B]oth this court and the Supreme Court of Texas have concluded that [Texas’s borrowing statute] is a codified choice of law provision."); Geophysical Systems Corp. v. Raytheon Co., Inc., 988 F.2d 119 (9th Cir. 1993) (“The Oklahoma borrowing statute is a choice of law provision which is inapplicable because Oklahoma is not the forum state.”); Katell v. Morgan Stanley Group. Inc., 1993 WL 10871, at *8 (Del. Ch. Jan. 14, 1993) (describing Delaware’s borrowing statute as a “choice of law provision”); Miller v. Stauffer Chemical Co., 581 P.2d 345, 348-49 (Idaho 1978) (sustaining 24 directive” that Ministers & Missionaries holds should not be applied because it would frustrate the parties’ agreement that New York law, and not the law of any other state, should be applied. D. The Court’s CPLR 202 Precedent Is Consistent with the Right of Parties to Select New York’s Local Procedural Rules In finding that the parties had not successfully chosen New York’s local, six- year statute of limitations, the Appellate Division misapplied three of this Court’s leading decisions on CPLR 202— Portfolio Recovery Associates v. King, 14 N.Y.3d 410 (2010); Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525 (1999); and Insurance Co. ofN. Am. v. ABB Power Generation, 91 N.Y.2d 180 (1997). All of these decisions pre-date IRB-Brasil and Ministers & Missionaries and none of them dealt with contracting parties who had successfully selected New York’s procedural rules. The cases are irrelevant to the question presented here— whether parties who select New York’s procedural rules intend to get New York law or the law other states. First, the Appellate Division misreads Triarc for the proposition that CPLR 202 is not a statutory choice-of-law directive but its own statute of limitations. borrowing statute against constitutional challenge because '‘states have considerable power to adopt an appropriate conflict of laws doctrine in a situation touching more than one state”); Reinhardt v. Textron, Inc.. 516 P.2d 1325 (Okl. 1973) (expressly holding that borrowing statute is conflict of law rule); Natale v. Upjohn Co., 356 F.2d 590 (3d Cir. 1966) (applying Delaware's borrowing statute because it is part of Delaware’s “conflict of laws rule,” which the court must apply when sitting in diversity jurisdiction). 25 Triarc makes no such distinction. Instead, it addresses whether, when interpreting CPLR 202, a court should embark on a common-law choice of law analysis to understand how it should apply CPLR 202. Specifically, it addressed the appropriate interpretation the statutory phrase “accruing without the state.” 93 N.Y.2d at 527. The plaintiff argued that when viewed in light of a common-law interest analysis, “accrued without the state” must be interpreted to refer to a claim accruing in the state with the most significant relationship to the claim. Id. at 528. In rejecting the argument, the Court explained the difference between common-law choice-of-law rules, which are subject to the type of contact-counting suggested by the plaintiff, and statutory choice-of-law directives, which provide bright line rules: [Tjhere is a significant difference between a choice-of-law question, which is a matter of common law, and this Statute of Limitations issue, which is governed by the particular terms of the CPLR. In using the word “accrued” in CPLR 202, there is no indication that he Legislature intended the term to mean anything other than the generally accepted construction applied throughout CPLR Article 2. Id. at 528 (emphasis added). This distinction is true of all statutory choice-of-law directives, including CPLR 202 and EPTL § 3-5.1(b)(2) (at issue in Ministers & Missionaries), which opt for clear rules when making choices of law rather than any cumbersome analysis. Triarc does not, however, say anything about whether 26 or when parties may opt out of CPLR 202 altogether, as they have in this case, by selecting New York’s local procedural rules. Second, the Appellate Division relies on King and Insurance Commissioner for the proposition that “case law generally holds that a contractual choice-of-law does not bar the application of New York’s borrowing statute.” [R at 491.] King draws a distinction between choice of substantive law and choice of procedural law, and stands for only for the proposition that a general choice-of-law provision does not affect the application of CPLR 202 because the parties have not demonstrated their intent to select any specific set of procedural rules, only substantive ones. 14 N.Y.3d at 416. Here, as both courts below recognized, the parties here effectively selected New York’s procedural law including its statutes of limitations. Third, Samsung has argued that Insurance Commissioner holds that parties who select New York procedural rules should still be subject to CPLR 202. Insurance Commissioner is a case of statutory construction, not one of contractual interpretation. It concerned a case with a forum selection clause permitting suit only in New York. Plaintiff argued that the claim could not have “accrued without the state” for purposes of CPLR 202 on the theory that a claim cannot “accrue” where it cannot be litigated. 91 N.Y.2d at 186. The Court rejected the argument, holding CPLR 202’s text only requires a claim to “accrue” elsewhere and is silent 27 as to a defendant’s amenability to jurisdiction, and thus a New York court need not engage in a choice-of-law analysis before applying CPLR 202. Id. In explaining its decision, the Court wrote— in language repeatedly misused by Samsung— “we conclude that CPLR 202 requires that a court, when presented with a cause of action accruing outside New York, should apply the limitation period of the foreign jurisdiction if it bars the claim.” Id. at 187. The Court did not address whether the parties had contractually opted out of CPLR 202 or whether they could even do so. Indeed, Samsung’s position that the language should be read literally is simply an argument that parties can never avoid the operation of CPLR 202, no matter how clear their agreement. As explained below, such a position is legally unsupported and anathema to New York policy. The Appellate Division also cited Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193, 201 (1995), for the proposition that this Court “accepted] that the borrowing statute could apply” even if the parties’ contracted for New York’s procedural law. [R at 494.] Luckie never decided the issue. It held that the parties had effectively opted out of the Federal Arbitration Act’s rule that arbitrators decide issues of timeliness and instead chose to be governed by New York’s local procedures that require courts to decide whether a demand for arbitration is timely. Id. at 1312. It remanded the decision for the Appellate Division to decide the issue of timeliness, at which point the Appellate Division 28 applied CPLR 202 to bar the claims despite similar contractual language to this However, neither before the Court of Appeals nor on remand to thecase. Appellate Division did any party or court address the issue of whether the parties 8had expressed an intention that New York’s local statute of limitations be applied. In any event, Luckie long predates IRB-Brasil and Ministers & Missionaries, which unambiguously hold that contractual choice-of-law provisions must be read to embrace only New York’s local law. POINT II NEW YORK PUBLIC POLICY DOES NOT PREVENT PARTIES FROM CONTRACTING FOR NEW YORK’S OWN LEGISLATIVELY APPROVED SIX-YEAR STATUTE OF LIMITATIONS On Appeal, Samsung vigorously argued that any agreement to apply New York’s standard local six-year statute of limitations would be void against public policy. This argument should be rejected for two reasons. First, application of New York’s legislatively fixed six-year statute of limitations for contracts under CPLR 213 cannot violate New York public policy; the six-year statute of limitation on contract claims is the legislative New York standard. Second, the legislature has made it the express policy of New York to permit and even encourage sophisticated commercial parties to choose New York law to govern their contracts. See N.Y. Gen. Oblig. Law § 5-1401. Samsung’s argument that 8 In fact, on remand, the respondent (who had asserted the claims) was pro se and no briefs were filed by any party. 29 they are prohibited from doing so is inconsistent with these legislative pronouncements, and without authority in statute or case law. Samsung’s “against public policy” argument is grounded in the principle that parties may not, ex ante, agree to extend New York’s six-year statute of limitations. See Kassner & Co. v. City of New York, 46 N.Y.2d 551 (1979). In Kassner, the Court reasoned that the New York legislature set the six-year statute of limitations in CPLR 213 to “afford protection to defendants against defending stale claims” and “expresses a societal interest or public policy of giving repose to human affairs.” Id. at 550 (internal quotation marks omitted). If the domestic statutes of limitations passed by the New York legislature are policy judgments, then it cannot be against New York’s public policy for parties to agree to use those exact limitation periods. In reality, the only “public policy” implicated by permitting contracting parties to choose New York’s local limitations period is the well-settled policy of New York to encourage parties to select New York law and a New York forum— not inhibit its selection. See N.Y. Gen. Bus. Oblig. L. §§ 5-1401, 5-1402.9 It would certainly be an odd result to construe these door-opening statutes to welcome the parties’ use of New York law and New York courts, but refuse to let 9 Section 5-1402 expressly encourages non-resident parties to select New York as a forum in complex commercial disputes. IRB Brasil 20 N.Y.3d at 314-15. There is no dispute that the NDA falls within the purview of both Section 5-1401 and 5-1402. 30 them contract for a uniform set of procedures like New York’s statute of limitations. Again, Ministers & Missionaries is instructive. The decedent’s estate made a public policy argument similar to that advanced here by Samsung. It argued that borrowing provisions of EPTL § 3-5.1(b)(2) represented public policy that the legislature chose to codify. The Court of Appeals squarely rejected this idea: Although codification may be an indication that the Legislature attaches some importance to the rule, EPTL 3-5.1(b)(2) nevertheless remains, in its essence, a conflict-of-laws rule, rather than a statement of substantive law. The fact that the Legislature may have made a substantive decision to codify the rule, or had a substantive public policy reason for placing the former common-law rule within a statute, does not somehow elevate or transform this conflict-of-laws directive into a statement of substantive law. Ministers & Missionaries, 26 N.Y.3d at 473. The same is true here. The legislature’s decision to include a borrowing statute in the CPLR does not place it beyond the authority of sophisticated parties to contract for the exclusive application of New York’s local law. CONCLUSION Lor the foregoing reasons, the Appellate Division’s order should be reversed, and Appellant’s claims should be subject to New York’s six-year statute of limitations agreed to by the parties in the NDA. 31 Dated: New York, New York August 18, 2017 SUSMAN GODFREY L.L.P, By: William Christopher Carmody Jacob W. Buchdahl Shawn J. Rabin Cory S. Buland 1301 Avenue of the Americas, 32nd FI. New York, NY 10019 (212) 336-8330 Attorneys for Plaintiff - Appellant 2138747 Ontario, Inc. RESSLER & RESSLER By: Ellen R. Werther Bruce J. Ressler 48 Wall Street New York, NY 10005 (212) 695-6446 Attorneys for Plaintiff - Appellant 2138747 Ontario, Inc. 32 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.1G) that the foregoing brief was prepared on a computer using Microsoft Word. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words used in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 7996 words. Dated: August 18, 2017 SUSMAN GODFREY L.L.P. By: William Christopher Carmody Jacob W. Buchdahl Shawn J. Rabin Cory S. Buland 1301 Avenue of the Americas, 32nd FI. New York, NY 10019 (212) 336-8330 Attorneys for Plaintiff - Appellant 2138747 Ontario, Inc.