APL-2013-00007
To Be Argued By: ROBERT F. SERIG
TIME REQUESTED FOR ORAL ARGUMENT: 15 MINUTES
Afetu p0ork 6tate 6'upreme Ctourt
fppellate !Bibioion - Jfir~t Mepartment
New York County Clerk's Index No. 601650/2009
MASHREQBANK PSC,
PlaintiffR4espondent,
-against-
AHMED HAMAD AL GOSAIBI & BROTHERS COMPANY,
Defendant-Appellant.
New York County Clerk's Index No. 590643/2009
AHMED HAMAD AL GOSAIBI & BROTHERS COMPANY,
Third-Party PlaintiffAppellant,
-against-
MAAN ABDUL WAHEED AL SANEA,
Third-Party Defendant-Respondent,
- and-
AWAL BANK BSC,
Third-Party Defendant.
BRIEF OF TIHRD-PARTY DEFENDANT-RESPONDENT
GiBSON, DUNN & CRUTCHER LLP
Attorneys for Third-Party Defendant-Respondent
200 Park Avenue
New York, New York 10 166
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
rserio@gpibsondunn.com
Of Counsel: Gabriel Henrmann Dated: December 7, 2011
Reproduced on Recycled Paper
TABLE OF CONTENTS
Page
COUNTERSTATEMENT OF QUESTIONS PRESENTED ........................ 1
NATURE OF THE CASE................................................................ 2
COUNTERSTATEMENT OF FACTS ................................................. 8
A. The Dispute in Saudi Arabia .............................................. 8
B. AHAB Propounds Allegations of Mr. AJ-Sanea's Purported
Fraud in Other Proceedings Outside of Saudi Arabia ................ 10
C. This Case and Its Lack of Any Connection to New York............ 12
D. The Proceedings Below................................................... 15
ARGUMENT............................................................................. 17
1. THIS CASE WAS PROPERLY DISMISSED UNDER THE
DOCTRINE OF FOR UMNON CONVENIENS ............................. 17
A. AHAB's Threshold Procedural Arguments Regarding the Trial
Court's Supposed Lack of Authority to Dismiss this Case Are
Nothing But Lawyer Makeweights ..................................... 20
1 . There Was No Improper Sua Sponte Action Below .......... 20
2. The Trial Court Was Not Obliged to Hear the Third-Party
Claims as "Inseparably Connected" to the First-Party
Claims............................................................... 24
B. All of the Traditional Forum Non Conveniens Factors Support
Dismissal................................................................... 26
1 . None of the Parties Resides in New York ..................... 26
2. The Relevant Events Occurred in the Middle East............ 26
3. Dismissal Serves the Convenience of the Parties and
Witnesses ........................................................... 28
TABLE OF CONTENTS
(Continued)
Page
4. This Case Would Require the Court to Apply Saudi and
UAE Law.......................................................... 34
5. Hearing This Case in New York Would Impose an
Undue Burden on the Court ..................................... 38
6. Saudi Arabia and the UAE Offer Superior Alternative
Fora for Resolving This Dispute ................................ 39
i. Both Saudi Arabia and the UAIE Are Adequate and
Available................................................... 40
ii. Although Not Necessary, the Entire Case Can Be
Heard in a Single Alternative Forum ................... 42
7. Saudi Arabia Has a Keen Interest in This Dispute ........... 43
8. New York Has Virtually No Interest in This Dispute ........ 44
II. THE TRIAL COURT PROPERLY DENIED AHAB'S REQUEST
FOR FORUM-RELATED DISCOVERY..................................... 48
Ill. ALTERNATELY, THE TRIAL COURT COULD AND SHOULD
HAVE DISMISSED THE THIRD-PARTY CLAIMS AGAINST MR.
AL-SANEA FOR LACK OF PERSONAL JURISDICTION .............. 50
CONCLUSION......................................................................... 54
PRINTING SPECIFICATIONS STATEMENT..................................... 55
TABLE OF AUTHORITIES
Page
Cases
A &M Exports, Ltd. v. Meridien Int'l Bank, Ltd.,
207 A.D.2d 741 (1lst Dep't 1994)........................................ 18, 27,28,44
Ahmad Hamad Algosaibi & Bros. Co. v.
Standard Chartered Int'l (USA) Ltd.,
No. 10 Civ. 8080, 2011 WL 1900695 (S.D.N.Y. May 20, 2011)............ 12,33
Alberta & Orient Glycol Co. v. Factory Mut. Ins. Co.,
Index No. 603 150/05, 2007 WL 6881693
(Sup. Ct. N.Y. Cnty. Apr. 24 ,2007).................................................. 39
Am. Home Assurance Co. v. Ins. Corp. of Ireland,
603 F. Supp. 636 (S.D.N.Y. 1984) ................................................... 25
Andrews v. Trustco Bank, Nat 'I Assn'i,
289 A.D.2d 910 (3d Dep't 2001) ..................................................... 48
AroChem nt '1, Inc. v. Buirkie,
968 F.2d 266 (2d Cir. 1992)........................................................... 35
Arts4All, Ltd. v. Hancock,
54 A.D.3d 286 (1st Dep't 2008),
affd, 12 N.Y.3d 846 (2009)........................................................... 48
AtIsco Ltd. v. Swanson,
29 A.D.3 d 465 (1 AtDep't 2006) ...................................................... 36
Banco do Estado de Sao Paulo S.A. v. Mendes Jr. Int'l Co.,
249 A.D.2d 137 (1lAtDep't 1998)..................................................... 21
Banco Nacional Ultramarino, S.A. v. Chan,
169 Misc. 2d 182 (Sup. Ct. N.Y. Cnty. 1996),
aff'd sub nom. Banco Nacional Lf7ramarino, S.A.
v. Moneycenter Trust Co.,
240 A.D.2d 253 (1st Dep't 1997) ......................................... 5, 45, 46, 47
TABLE OF AUTHORITIES
(Continued)
Page(s)
Beekmnans v. .JP. Morgan & Co.,
945 F. Supp. 90 (S.D.N.Y. 1996)..................................................... 49
Bewers v. Am. Home Prods. Corp.,
99 A.D.2d 949 (1 st Dep't),
affd, 64 N.Y.2d 630 (1984)........................................................... 34
Blanco v. Banco Indus. de Venezuela, S.A.,
997 F.2d 974 (2d Cir. 1993)........................................................... 42
Caviam Bus. Ltd. v. Certain Underwriters at Lloyd's, London,
No. 08 Civ. 2255, 2009 WL 667272 (S.D.N.Y. Mar. 16, 2009).................. 34
Citigroup Global Mkts., Inc. v. Metals Holding Corp.,
45 A.D.3d 361 (1st Dep't 2007) ...................................................... 39
Citigroup Global Mkts., Inc. v. M.'etals Holding Corp.,
Index. No. 604205/05, 2006 WL 1594442
(Sup. Ct. N.Y. Cnty. June 8, 2006),
aff'd, 45 A.D.3d 361 (1st Dep't 2007)............................................... 44
Copp v. Ramirez,
62 A.D.3d 23 (1st Dep't 2009)........................................................ 50
de Capriles v. Lopez Lugo,
293 A.D.2d 405 (1st Dep't 2002)..................................................... 50
de Enamorado v. Cent. Am. S.S. Agency, Inc.,
160 A.D.2d 182 (1lAtDep't 1990)..................................................... 49
Doherty v. City of New York,
24 A.D.3d 275 (1lAtDep't 2005) ...................................................... 48
Edgar v. MITE Corp.,
457 U.S. 624 (1982).................................................................... 37
Excel Shipping Corp. v. Seatrain Int'l S.A.,
584 F. Supp. 734 (E.D.N.Y. 1984) ................................................... 25
TABLE OF AUTHORITIES
(Continued)
Page(s)
Faravelli v. Bankers Trust Co.,,
85 A.D.2d 33 5 (1lAtDep't 1982) ...................................................... 52
First Union Nat'l Bank v. Paribas,
135 F. Supp. 2d 443 (S.D.N.Y. 2001)............................................. 6,46
Forsythe v. Saudi Arabian Airlines Corp.,
885 F.2d 285 (5th Cir. 1989).......................................................... 40
Garmendia v. 0O'Neill,
46 A.D.3d 361 (1st Dep't 2007) ............................................. 30, 43, 49
Globalvest Mgmt. Co. v. Citibank, N.A.,
Index No. 6033 86/04, 2005 WL 1148687
(Sup. Ct. N.Y. Cnty. May 12,2005) ...................................... 7, 34, 37,41
Gulf Oil Corp. v. Gilbert,'
330 U.S. 501 (1947).................................................................... 34
Hakim Consultants Ltd v. Formosa Ltd,
175 A.D.2d 759 (1lAtDep't 199 1)..................................................... 50
Hart v. Gen. Motors Corp.,
129 A.D.2d 179 (1st Dep't 1987)..................................................... 36
Hormel Int'l Corp. v. Arthur Andersen & Co.,
55 A.D.2d 905 (2d Dep't 1977)....................................................... 31
Howard v. Four Seasons Hotels Ltd,
No. 96 Civ. 4587, 1997 WL 107633 (S.D.N.Y. Mar. 10, 1997).................. 31
Hubbard, Westervelt & Mottelay, Inc. v. Harsh Bldg. Co.,
28 A.D.2d 295 (1lst Dep't 1967) ...................................................... 51
Imperial Imps. Co. v. Hugo Neu & Sons,
161 A.D.2d 411 (1lst Dep't 1990)..................................................... 21
TABLE OF AUTHORITIES
(Continued)
Page(s)
In re Air Crash Near Nantucket Island,
No. 00-MDL-1344, 2004 U.S. Dist. LEXIS 16085
(E.D.N.Y. Aug. 16,2004)............................................................ 25
In re Bancredit Cayman, Ltd.,
No. 06-11026, 2008 WL 5396618 (Bankr. S.D.N.Y. Nov. 25, 2008) ........... 33
In re Bernz (Widschi),
13 9 A.D.2d 444 (1lst Dep't 1988)..................................................... 24
Indosuez Int'l Fin. B. V v. Nat 'I Reserve Bank,
279 A.D.2d 408 (1 st Dep't 200 1),
affd, 98 N.Y.2d 238 (2002)........................................................... 46
Ins. Co. offN. Am. v. Emcor Grp., Inc.,
9 A.D.3d 319 (1st Dep't 2004)........................................................ 53
Islamic Republic of Iran v. Pahlavi,
62 N.Y.2d 474 (1984)............................................ 17, 18,26,28,38,40
Istim, Inc. v. Chemical Bank,
78 N.Y.2d 342 (1991) ............................................................. 34, 35
J Zeevi & Sons, Ltd. v. Grindlays Bank (Uganda) Ltd,
37 N.Y.2d 220 (1975) .......................................................... 5, 45, 46
Jeha v. Arabian Am. Oil Co.,
751 F. Supp. 122 (S.D. Tex. 1990) ................................................... 40
Johnson v. Ward,
4 N.Y.3d 516 (2005) ................................................................... 51
Kamel v. Hill-Rom Company, Inc.,
108 F.3d 799 (7th Cir. 1997).......................................................... 40
Karabu Corp. v. Gitner,
16 F.Supp. 2d 319 (S.D.N.Y. 1998).................................................. 52
TABLE OF AUTHORITIES
(Continued)
Page(s)
Kearns v. Johnson,,
23 8 A.D.2d 121 (1lAtDep't 1997)..................................................... 22
Kissimmee Mem 'I Hosp. v. Wilson,
188 A.D.2d 802 (3d Dep't 1992) ..................................................... 25
Kraft v. Trs. of Sailors 'Snug Harbor,
31 A.D.2d 918 (1lAtDep't 1969) ...................................................... 50
M Katz & Son Billiard Prods., Inc. v. G. Coreale & Sons, Inc.,
26 A.D.2d 52 (1st Dep't 1966), afd, 20 N.Y.2d 903 (1967) .................... 51
Martin v. Mieth,
3 5 N.Y.2d 414, 418 (1974) ............................................................ 17
Mensah v. Moxley,
235 A.D.2d 910 (3d Dep't 1997) ..................................................... 18
Murray v. British Broad. Corp.,
81 F.3d 287 (2d Cir. 1996) ............................................................ 31
N Valley Partners, LLC, v. Jenkins,
Index No. 101957/08, 2009 WL 1058162
(Sup. Ct. N.Y. Cnty. Apr. 14, 2009).................................................. 52
Nasser v. Nasser,
52 A.D.3d 306 (1st Dep't 2008) ...................................................... 30
Navallo v. Am. Standard, Inc.,
224 A.D.2d 599 (2d Dep't 1996) ..................................................... 36
Nemetsky v. Ban que de Developpement de la Republique du Niger,
64 A.D.2d 694 (2d Dep't 1978)....................................................... 52
Nguyen v. Banque Indosuez,
19 A.D.3 d 292 (1st Dep't 2005).................................................. 17, 26
Olympic Corp. v. Societe Generale,
462 F.2d 376 (2d Cir. 1972)........................................................... 25
TABLE OF AUTHORITIES
(Continued)
Page(s)
Otor, S.A. v. Credit Lyonnais, S.A.,
No. 04 Civ. 6978, 2006 WL 2613 775 (S.D.N.Y. Sept. 11, 2006)...*............. 49
P. T Delami Garment Indus. v. Cassa di Risparmio di Torino,
164 Msc. 2d 38 (Sup. Ct. N.Y. Cnty. 1994) ........................................ 44
Panama Processes, S.A. v. Cities Serv. Co.,
650 F.2d 408 (2d Cir. 1981) ................................................... 8, 30, 42
Payne v. Jumeirah Hospitality & Leisure (USA), Inc.,
83 A.D.3 d 5 18 (1 st Dep't 201 1) ...................................................... 17
Perkow v. Frank W Winne & Sons,
36 A.D.3d 1189 (3d Dep't 2007) ..................................................... 25
Piper Aircraft Co. v. Reyno,
454 U.S. 235 (1981) ........................................................... 40, 41, 49
Republic of Lebanon v. Sotheby 's,
167 A.D.2d 142 (1st Dep't 1990)..................................................... 42
Richbell Info. Servs., Inc. v. Jupiter Partners,
3 2 A.D.3 d 15 0 (1 st Dep't 2006) ...................................................... 50
Roddy v. Schmidt,
57 N.Y.2d 979 (1982).................................................................. 51
Russeck Fine Art Grp. v. Theodore B. Donson, Ltd.,
Index No. 60 1339/06, 2008 WE 2762944
(Sup. Ct. N.Y. Cnty. June 27, 2008).................................................. 53
Schultz v. Boy Scouts ofAm.,
65 N.Y.2d 189 (1985).................................................................. 35
Schwartz v. Wikier,
31 A.D.2d 755 (2d Dep't 1969)....................................................... 50
Sears Tooth v. Georgiou,
69 A.D.3d 464 (1st Dep't 2010) ...................................................... 23
viii
TABLE OF AUTHORITIES
(Continued)
Page(s)
Sem i-Conductor Materials, Inc. v. Citibank Int'l PLC,
969 F. Supp. 243 (S.D.N.Y. 1997) ................................................... 52
Shiboleth v. Yerushalmi,
268 A.D.2d 3 00 (1st Dep't 2000)............................................ 21, 24,P40
Shields v. Mi Ryung Constr. Co.,
508 F. Supp. 891 (S.D.N.Y. 1981) ................................................... 40
Shin-Etsu Chem. Co. v. ICICI Bank, Ltd.,
9 A.D.3d 171 (1 st Dep't 2004) ...................................... 18, 34,40,41,43
Silver Lane Advisors LLC v. Bellatore LLC,
Index No. 600668/09., 2009 WE 2045513
(Sup. Ct. N.Y. Cnty. July 6, 2009)............................................... 26,30
Silver v. Great Am. Ins. Co.,
29 N.Y.2d 356 (1972) ............................................................. 17,48
Simon v. Philip Morris, Inc.,
124 F. Supp. 2d 46 (E.D.N.Y. 2000)................................................. 35
SNS Bank, N V v. Citibank, NA.,
7 A.D.3d 352 (1st Dep't 2004)........................................................ 53
Sosa v. Cumberland Swan, Inc.,
2 10 A.D.2d 156 (1st Dep't 1994)..................................................... 20
Sfravalle v. Land Cargo, Inc.,
39 A.D.3d 735 (2d Dep't 2007)....................................................... 24
Tilleke & Gibb ins Int'l Ltd. v. Baker & McKenzie,
3 02 A.D.2d 3 28 (1st Dep't 2003)..................................................... 34
Tinicum Props. Assocs. Ltd. P ship v. Garnett,
Civ. A. No. 92-0860, 1992 WE 99590 (E.D. Pa. Apr. 29, 1992)................. 31
TABLE OF AUTHORITIES
(Continued)
Page(s)
Todtman, Young, Tunick, Nachamie, Hendler, Spizz & Drogin, P. C.
v. Richardson,,
231 A.D.2d 1 (1lst Dep't 1997)........................................................ 23
Troni v. Banca Popolare Di Milano,
129 A.D.2d 502 (1 st Dep't 1987)..................................................... 38
Van Deventer v. CS SCF Mgmt. Ltd.,
37 A.D.3d 280 (1 st Dep't 2007) ...................................................... 25
VSL Corp v. Dunes Hotels & Casinos, Inc.,
70 N.Y.2d 948 (1988).................................................................. 23
Warck-Meister v. Diana Lowenstein Fine Arts,
7 A.D.3d 351 (lst Dep't 2004)........................................................ 51
Waterways Ltd. v. Barclays Bank PLC,
174 A.D.2d 324 (1lst Dep't 199 1)..................................................... 42
Wells Fargo Asia Ltd. v. Citibank, N.A.,
93 6 F.2d 723 (2d Cit. 199 1)........................................................... 46
Wentzel v. Allen Mach., Inc.,.
277 A.D.2d 446 (2d Dep't 2000) ..................................................... 19
World Point Trading PTE, Ltd. v. Credito -Italiano,
225 A.D.2d 153(lst Dep't 1996)................................ 18,27,28,32,39,44
Statutes
11 U.S.C. §362 ........................................................................... 10
28 U.S.C. §1782.......................................................................... 12
CPLR 1008 ............................................................................... 22
CPLR 2001 ............................................................................... 23
CPLR 32(a)(1) ........................................................................... 51
TABLE OF AUTHORITIES
(Continued)
Page(s)
CPLR 302(a)(2)....................................................................... 46, 51
CPLR 3103(a)............................................................................. 48
CPLR 3106(a)............................................................................. 50
CPLR 3211 (d)............................................................................. 49
CPLR 3214(b)............................................................................. 48
CPLR 327................................................................................ 17
CPLR 327(a).......................................................................... 17,21
Rules
22 N.Y.C.R.R. § 202.70(g) (Rule of Practice 11I(d)).................................. 48
Third-Party Defendant-Respondent Maan Abdul Wahed Al-S anea ("Mr. Al-
Sanea") respectfully submits this brief in opposition to the appeal of Defendant-
Third-Party Plaintiff-Appellant Abmad Hamad Algosaibi & Brothers Co.
("AHAB") seeking reversal of an order and judgment of the trial court below,
which dismissed the case below in its entirety on forum non conveniens grounds,
including the first-party action commenced by Plaintiff-Respondent Mashreqbank
PSC ("Mashreq"') and AHAB's third-party action against Mr. Al-Sanea.
COUJ1TERSTATEMENT OF QUESTIONS PRESENTED
1 . Whether the trial court properly grantedforum non conveniens
dismissal of this case, in which the parties are based in Saudi Arabia, Bahrain, and
Dubai; the dispute raises issues of foreign law; the key evidence and witnesses are
located primarily overseas, including in Saudi Arabia; the Defendant-Third-Party
Plaintiff has commenced multiple duplicative proceedings in other jurisdictions
involving the same allegations; and there are adequate and available alternative
fora in which the claims at issue can be litigated?
The trial court properly granted dismissal.
2. Whether the trial court providently exercised its discretion in denying
Third-Party Plaintiff s pre-answer demand to conduct forum-related discovery in
Saudi Arabia, given the strength of the case for forum non conveniens dismissal?
The trial court properly denied the requested discovery.
3. Whether the trial court erred in finding that personal jurisdiction could
be exercised over the Third-Party Defendant based solely on allegations that,
operating from outside of New York, he directed supposedly unauthorized
transactions in Third-Party Plaintiff s name that happened to involve the use of
New York correspondent bank accounts?
The trial court erred in asserting jurisdiction over the Third-Party Defendant,
and should have dismissed the third-party claims on that additional ground.
NATURE OF THE CASE
AHAB's dispute with Mr. Al-Sanea never had any business being litigated
in New York, and the trial court properly dismissed the action below in its entirety
on forumn non conveniens grounds. The parties are all based in the Middle East
(AH{AB and Mr. Al-Sanea in Saudi Arabia, Mashreq in Dubai), none of them has
any relevant presence in New York (or the United States), and none of the alleged
acts of misconduct transpired in New York (or the United States). The trial court
appropriately "weighed" the factors bearing onforum non conveniens analysis and
correctly concluded that "the factors under consideration weigh in favor of
granting Al Sanea's motion to dismiss the complaints." R.23-24.
Although AHAB was not the first party to file in New York, it is now the
only party that wants to stay here. Mashreq initially commenced suit against
AHAB in New York, after AHAB defaulted on a foreign-exchange transaction, in
the hope that assets might be found in AHIAB's accounts in New York (as it turns
out,, they were not). But AHAB, for its part, had just defaulted on billions of
dollars of liabilities to financial institutions around the world, and was busy
devising a strategy to foist the blame for all of its financial woes-including its
obligation to Mashreq--on Mr. Al-Sanea, a former AHAB executive and an in-law
of the AHAB partners who were responsible for managing AH-AB's affairs.
Rather than accepting responsibility for its financial straits, AHAB concocted a
claim that Mr. Al-Sanea had somehow wielded surreptitious control over AH-AB's
affairs and caused the company to take on billions of dollars of unauthorized
debt-which he then supposedly diverted to his own uses-without AHAB's
partners ever discovering any of these billions of dollars of borrowings.
Beginning in May 2009, AHAB launched a worldwide litigation campaign
against Mr. AI-Sanea in an effort to avoid its debts, asserting claims such as fraud,
forgery, and breach of fiduciary duty-both at home, in complaints to officials at
the highest levels of the Saudi government, and in several far-flung jurisdictions
abroad. AHAB seized upon Mashreq's New York action as a toehold from which
to further that campaign by filing third-party claims against Mr. Al-Sanea. Here in
New York, AHAB alleged a multi-billion dollar fraud by Mr. Al-Sanea, but sought
recovery only on a $150 million slice of that overarching supposed fraud.
Thus, as the trial court recognized, R. 19-24, AHAB'Is claims against Mr. Al-
Sanea here are only a tiny subset of a much larger dispute between the Saudi
owners of two related, family-owned Saudi business concerns, headquartered less
than two miles apart in Al Khobar, Saudi Arabia. AHAB's allegations here have
been duplicated in proceedings before a special committee empaneled by the Saudi
Government (the "Saudi Committee"), in submissions to Bahraini, Swiss, and
other criminal authorities, and in parallel civil litigation against Mr. Al-Sanea
commenced by AHAB in the Cayman Islands-where AHAB seeks recovery of
the full $10 billion of its alleged damages, including the $150 million claimed
here-and the U.K.
In the course of this worldwide forum-shopping spree, AHAB has sought to
avail itself of every procedural advantage under the sun-including by obtaining,
in 2009, worldwide asset-freezing orders from Cayman and U.K. courts that a
New York court would never issue. Through this New York suit, AHAB
apparently seeks, among other things, to obtain expansive discovery not available
elsewhere. But AHAB's case here lacks any significant connection to New York,
and therefore was properly dismissed on forum non conveniens grounds.
New York has no relevant contacts with the parties or alleged misconduct at issue.
Mr. Al-Sanea and AHAB both reside in Saudi Arabia, and any unauthorized
conduct Mr. Al-Sanea allegedly undertook in AHAB's name transpired, if at all, in
Saudi Arabia. Third-Party-Defendant Awal Bank BSC resides in Bahrain, as does
AHAB's banking subsidiary, The International Banking Corporation ("TIBC").
None of them has any offices or employees in New York or conducts any business
here. Mashreq is based in Dubai, and its claims against AHAB derive from
AHAB's failure to pay Saudi riyals into Mashreq's account in Saudi Arabia,
pursuant to an agreement negotiated overseas.
AHAB's sole claim to New York nexus is that the $150 million Mashreq
paid to AHAB in connection with this transaction passed through two New York
4"correspondent" bank accounts (neither of which is owned by Mr. Al-Sanea) en
route from one Middle Eastern entity to another. Of course, this would be true of
virtually any large-volume foreign-exchange transaction involving dollars. Yet
AHAB claims that this incidental connection somehow implicates New York's
"6paramount"' interest in regulating the New York banking system, which
supposedly should have obligated the trial court to hear the case notwithstanding
the compelling grounds for forum non conveniens dismissal.
That simply is not the law. AHAB relies on language from two cases,
J Zeevi & Sons, Ltd. v. Grindlays Bank (Uganda) Ltd., 37 N.Y.2d 220 (1975), and
Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc. 2d 182 (Sup. Ct. N.Y. Cnty.
1996), affd sub nom. Banco Nacional Ultramarino, S.A. v. Moneycenter Trust Co.,
240 A.D.2d 253 (1 st Dep't 1997), that involved choice-of-law or personal
jurisdiction issues-not forum non conveniens. Indeed, the supposedly
"paramount" New York interest AHAB finds in these cases "is not a trump to be
played whenever a party to such a transaction seeks to use our courts for a lawsuit
with little or no apparent contact with New York or the United States." First
Union Nat'l Bank v. Paribas, 135 F. Supp. 2d 443, 453 (S.D.N.Y. 2001). AHAB
claims this is a case about Mr. Al-Sanea's alleged "abuse" of the New York
banking system, but whether New York's banks were "abused" or simply used
here is a debate that can be resolved only by evidence concerning events that
transpired in Saudi Arabia-where AHAB and Mr. A1-Sanea do business-and
that are governed by Saudi law.
The trial court prudently exercised its discretionary authority to dismiss the
case in its entirety. Every one of the traditional forum non conveniens factors
demonstrates how utterly inappropriate a forum New York would be: None of the
parties resides here; none of the alleged misconduct took place here; litigation here
will severely burden the Court, parties, and key witnesses (none of whom resides
here); the Court will be forced to interpret and apply Saudi and UAE law; and
Saudi Arabia and the UAE offer available and adequate alternate fora. Indeed,
Saudi Arabia is a far more appropriate forum than New York-one whose
paramount interest in resolving this dispute between two prominent Saudi families
and their respective businesses weighs heavily in favor of dismissal.
On appeal, AH-AB also makes several procedural arguments for reversal, but
none rises above the level of lawyer makeweight. AHAB wrongly claims (for the
first time on appeal) that the trial court lacked authority to dismiss Mashreq' s
action on a motion initiated by Mr. Al-Sanea, even though dismissal of the entire
case was raised in open court by both Mr. Al-S anea and the trial judge, all parties
were afforded an opportunity to brief that issue, and Mashreq consented to
dismissal of its first-party claims. AHAB is also wrong in arguing that the trial
court could not have granted dismissal of its third-party claims while retaining
jurisdiction over the first-party action; although the trial court concluded that it was
best to dismiss the entire case, it clearly could have severed the action and
dismissed the third-party claims against Mr. Al-Sanea.
AHAB further claims its action must be heard here for efficiency reasons,
and that the foreign fora available to AHAB are not "adequate" because New York
would afford AHAB more favorable discovery and evidentiary rules. That is not
the case, either on the facts or on the law. Adjudication of AHAB's case here
would only add to the number of AHAB's duplicative proceedings-there is no
other proceeding AHAB proposes to withdraw if this case is reinstated. Moreover,
a party's inability to "obtain expansive U.S.-style discovery" or secure perceived
procedural advantages in another forum "do[es] not render the forum inadequate."
GlobalvestMgmt. Co. v. Citibank, N.A., Index No. 603386/04, 2005 WLT 1148687,
at *9 (Sup. Ct. N.Y. Cnity. May 12, 2005); accord Panama Processes, S.A. v. Cities
Serv. Co., 650 F.2d 408, 415 (2d Cir. 1981); id. at 416 (Maletz, J., dissenting).
AHAB's additional claim that the trial court somehow acted improperly in
refusing AHAB's request for forum-related discovery also lacks merit, and should
be disregarded. Separate from the compelling grounds supporting the trial court's
ruling onforum non conveniens, the trial court erred in finding jurisdiction over
Mr. Al-Sanea, and that error provides an alternative basis for affirming the
judgment below insofar as it dismissed the third-party claims against him.
Accordingly, the trial court's judgment should be affirmed.
COUNTERSTATEMENT OF FACTS
A. The Dispute in Saudi Arabia
This case involves a dispute between Mr. Al-Sanea and his in-laws,
members of Saudi Arabia's prominent Algosaibi family. The Algosaibis own
AHAB, a partnership based in Al Khobar, Saudi Arabia. R. 107-08, R.618-20.
Among AHAB's constituent entities is its subsidiary TIBC, a Bahraini bank. R. 13.
Mr. AI-Sanea is married to Madame Sana Algosaibi, a member of the
AHAB family partnership (who plays no role in the management of AHAB's
affairs). R.618. Mr. Al-Sanea is a citizen and resident of Saudi Arabia. R.617-18.
AHAB alleges that he was a "senior executive of AHAB's financial service
division, the Money Exchange." R. 104. He is also "the Chairman of a group of
companies known as the Saad Group," R.108, which is headquartered in Al
Khobar, Saudi Arabia. R.6 18. He indirectly held a majority ownership interest in
Awal Bank, a bank "headquartered and licensed in the Kingdom of Bahrain."
R. 108. Any work Mr. Al-Sanea undertook for AHAB, including for the Money
Exchange, was conducted in Al Khobar. R.620.
In 2009, during the throes of the worldwide financial crisis, AHAB and
other Algosaibi businesses defaulted on some $ 10 billion in obligations to more
than one hundred creditors around the world, including Mashreq, a bank organized
and headquartered in Dubai, the United Arab Emirates ("UAE"). R. 19, R.50,
R. 109, R.98 1. When those creditors sued,, AH-AB made outlandish complaints
against Mr. Al-Sanea-first in Saudi Arabia, and then in Bahrain and elsewhere-
seeking to blame M\r. Al-Sanea for its financial woes by claiming that he caused
AHAB's employees to borrow $10 billion in AHAB's name, over many years,
without AHAB's knowledge or authorization. R. 104-07, R.620-22.
In AH-AB's native Saudi Arabia,, the Algosaibi family lodged complaints
against Mr. Al-Sanea with the Saudi government. R.620-2 1. In an effort to
investigate and resolve the parties' dispute, the Saudi government formed the
Saudi Committee of prominent government officials-including the Saudi
Attorney General, three judges, and representatives of the. Saudi Arabian Monetary
Agency, the Capital Market Authority, the Fraud Division of the Ministry of the
Interior, the Ministry of Commerce, and the Ministry of Justice. R.620-2 1.
B. AHAB Propounds Allegations of Mr. A1-Sanea's Purported
Fraud in Other Proceedings Outside of Saudi Arabia
Members of the Algosaibi family also filed criminal complaints against
Mr. Al-Sarica and others with the Bahraini government. R. 190-99, R.621. The
Bahraini Public Prosecutor's office commenced an investigation in response to
those complaints.1 R.621. The Central Bank of Bahrain also appointed
administrators over the affairs of Awal Bank and TIBC.2 R.221-27, R.622.
Less than two weeks after it filed its third-party claims in this case, AHAB
also sued Mr. Al-Sanea, and several Saad Group entities, in the Cayman Islands.
R.261-72, R.622. That action alleges that Mr. A1-Sanea engaged in a scheme to
defraud AHAB that includes the same allegedly unauthorized transaction for which
AHAB seeks recovery here, as well as numerous other alleged acts of misfeasance
by Mr. Al-Sanea. R.622. In the Cayman action, AHAB seeks a recovery
1Since the trial court rendered its decision below, the Public Prosecutor has filed
charges in Bahrain's Third Lower Criminal Court against Mr. Al-Sanea and
thirteen personnel of Awal Bank and TIBC. Those charges concern only minor
alleged violations in the nature of misdemeanor charges, not any charges of
fraud, money laundering, or forgery.
2 Awal Bank's administrator filed a petition under Chapter 15 of the Bankruptcy
Code, seeking intervention by the United States Bankruptcy Court in aid of
foreign insolvency proceedings. That application was granted, resulting in a
stay of this action as against Awal Bank. R.258-60; see I11 U.S.C. § 362.
approaching the full $ 10 billion amount it allegedly lost as a result of the purported
fraud, including the value of the Mashreq transaction at issue in this case. R.273-
89. AHAB obtained from that court an exparte "worldwide freezing order"
barring Mr. Al-Sanea from undertaking certain asset transfers during the pendency
of that case. Id. (AHAB subsequently obtained an extension of that freezing order
from a U.K. court. R.577-78, R.982)
Additionally, AHAB sought to raise its allegations against Mr. A1-Sanea
defensively in a series of consolidated actions commenced against it in the U.K. by
foreign financial institutions seeking to enforce obligations on which AHAB has
defaulted. R.978-82. AHAB asserted there that it was not liable for those
borrowings for the same reasons that underlie its claims against Mr. Al-S anea here
and in the Cayman Islands-that Mr. Al-Sanea supposedly entered into those
obligations in AHAB's name but without AHAB's knowledge or authorization.
AHAB also recently filed suit in a California federal court against one of
Mr. Al-Sanea's alleged "primary co-conspirators," Glenn Stewart, the formner CEO
of TIBC, for allegedly aiding and abetting Mr. Al-Sanea's purported fraud. AHAB
Br. at 32-33 & n.22, 46. AHAB seeks recovery from Mr. Stewart of virtually the
entire $ 10 billion it allegedly lost as a result of Mr. AI-Sanea' s purported fraud.
Since the trial court's dismissal of the case below, AHAB has also
capitalized on its allegations against Mr. Al-Sanea to obtain an order from a federal
court in New York authorizing AHAB to take discovery in aid of foreign
proceedings, pursuant to 28 U.S.C. § 1782, from several New York banks alleged
to have information relating to its allegations against Mr. Al-Sanea-including
HSBC and Bank of America, which maintained the correspondent accounts at
issue here. See Ahmad Hamad Algosaibi & Bros. Co. v. Standard Chartered Int'l
(USA) Ltd., No. 10 Civ. 8080, 2011 WL 1900695, at *5..*6 (S.D.N.Y. May 20,
2011). That court granted the application based on AHAB's claim that it needed
discovery from the banks in aid of (1) AHAB's Cayman suit against Mr. Al-Sanca,
and (2) AHAB's defense of two pending suits in Saudi Arabia brought by the
independent administrator of TIBC. Id. at *2..*3.
C. This Case and Its Lack of Any Connection to New York
AHAB's claims against Mvr. Al-Sanea in this suit followed the Algosaibi
family's actions in Saudi Arabia and Bahrain, and preceded the Cayman action by
less than two weeks. Asserting the same core allegations of fraud, forgery, and
unauthorized conduct by Mr. Al-Sanea, they arise as third-party claims relating to
Mashreq's underlying suit against AHAB, which seeks recovery for the alleged
breach of a $150 million-for-564,300,000 Saudi riyal currency-exchange
agreement. R. 104.
The Masbreq transaction was a U.S. dollar for Saudi riyal swap. Under
well-established international banking practices, such large-volume transactions
involving a U.S.-dollar component conducted by non-members of the New York
Federal Reserve Bank (such as the foreign banks at issue here) typically must clear
through a New York-based correspondent account with access to the Clearing
House Interbank Payment System ("CHIPS"). CHIPS is "the international private
clearing system for large dollar transfers," which "means that all wholesale
international transactions involving the use of the dollar go through CIHPS.",3
Otherwise, the transactions at issue here had no New York connection. The
counterparties were both Middle Eastern entities. Mashreq alleges that it executed
its leg of the swap but that AHAB breached by failing to perform its half: a
payment of Saudi riyals to Mashreq' s account in Saudi Arabia. R. 104, R. 125,
R.139. Mashreq sued both AHAB and AHAB's partners in New York.
On July 15, 2009, AHAB answered the Mashreq Action and commenced
this Third-Party Action against Mr. Al-Sanea and Awal Bank, and it subsequently
amended its pleading on August 26, 2009. R.75-120, R.142-70. The Third-Party
Complaint alleged that Mr. Al-Sanea "ran" the AHAB division in Saudi Arabia
that entered into the Mashreq transaction; that he somehow directed AHAB' s own
3 R.466-72 (EDMUND M. A. KWAW, THE LAW & PRACTICE OF OFFSHORE
BANKING & FINANCE 15-21 (1996)); see R.492-94 (TAKATOSHI ITO ETAL.,
INTERNATIONAL CAPITAL MARKETS: DEVELOPMENTS, PROSPECTS, AND KEY
POLICY ISSUES 13 0-32 (1996)); R.504-73 (Richard Hooley and John Taylor,
Payment by Funds Transfer, in THE LAW OF BANK PAYMENTS 49-185 (Michael
Brindle & Raymond Cox eds. 2004)).
employees to defraud it by "causing" the company to enter into the Mashreq
transaction, among others; that he improperly transferred the transaction proceeds
to an AHAB account at Awal Bank; and that Awal Bank refused to honor AHAB's
demands for payment of its funds on account.4 R. 104-10, R. 12-14, R. 116.
Asserting causes of action for indemnity, breach of fiduciary duty, conversion,
unjust enrichment, and fraud, AHAB sought to recover the amount of any
judgment Mashreq might obtain against AHAB, along with costs and punitive
damages of $1 billion. R. 14-20. It did not seek to recover any other portion of
the $10 billion AHAB allegzedly lost as a result of Mr. Al-Sanea' s purported
misconduct in Saudi Arabia.
AHAB does not allege that any of Mr. Al-Sanea's supposed misconduct
took place in New York. Nor could it credibly do so. Mr. Al-Sanea has no
relevant connections to New York. He lives and works in Al Khobar, Saudi
Arabia, he has not been to New York since 2000, has not traveled to New York or
communicated with any person located in New York in connection with any of the
alleged transactions at issue, and maintains no personal bank account in New York
4 AHAB's amended pleading also asserted counterclaims against Mashreq in an
effort to defeat Mashreq's motion for an attachment. R.87-1 03, R.239-41.
Those counterclaims, obviously pleaded only for strategic reasons, merely
assert in conclusory fashion that Mashreq "knew or was willfully blind to" Mr.
Al-Sanea's alleged misconduct.
that was ever used in connection with any transaction involving AHAB or
Mashreq. R.61 8-20. Awal Bank is neither chartered, headquartered, nor
authorized to do business as a foreign corporation in New York, and neither Awal
Bank nor Mr. Al-Sanca has maintained any offices or real property in New York at
any time relevant to AHAB's claims. R.618-19. AHAB allegedly was denied
access to its funds upon demand made to Awal Bank, a bank located in Bahrain.
R. 113-14. Nor does AHAB itself have any presence in or relevant contact with
New York. R.87, R. 109, R.619-20. The sole New York contact AHAB alleges is
that the transaction involved a ministerial transfer of U.S. dollars through
New York correspondent accounts, R. 109, a practical necessity for all such large-
volume foreign-exchange transactions involving a U.S.-dollar component. 5
D. The Proceedings Below
Mr. Al-Sanea sought dismissal of AH-AB's third-party claims for lack of
personal jurisdiction and on forum non conveniens grounds. R.65-66. Separately,
Mashreq moved to dismiss AHAB's counterclaims, and the AH-AB partners moved
to dismiss Mashreq's case against them as individuals. R.16, R.34-35.
Shortly after Mr. Al-Sanea moved to dismiss, AHAB purported to notice
Mr. A1-Sanea's deposition in Saudi Arabia, seeking ostensibly jurisdictional
5 Mashreq maintains a New York office, but there is no allegation that that office
was involved in any of the transactions or conduct at issue here.
discovery. R. 1507-08. Mr. Al-Sanea sought a protective order on the grounds that
the deposition was not authorized by the CPLR, that Al-AB failed to satisfyi this
Court's stringent test applicable to demands for international discovery, and that
AHAB's jurisdictional allegations failed to make a sufficient start toward
establishing jurisdiction. At oral argument, the trial court ordered a discovery stay,
R.659, which remained in effect until the court issued its order dismissing the case.
During proceedings on other motion practice, the trial court also expressed
concern that New York might be an inconvenient forum for litigation of the entire
case, and Mr. Al-Sanea's counsel advised the court that many of the bases of his
forum non conveniens motion applied with equal force to Mashreq's first-party
action. R.653-59. The trial court called for additional submissions from the
parties on issues offorum non conveniens as applied to the entire case. R.658-60.
In its supplemental papers, Mashreq consented to dismissal of its claims against
AHAB and the Al-AB partners, acknowledging that those claims were duplicative
of claims Mashreq was pursuing in a suit in the UAE, and that one of its key
reasons for filing in New York-its belief that relevant AHAB assets might be
found in New York-turned out to be incorrect. R.1452-54, R.1465-67. Only
AHAB resisted dismissal of the case.
In a memorandum decision entered on July 29, 2010, the trial court ordered
the action, as well as the related action against the AHAB partners, dismissed on
forum non conveniens grounds (and also addressed additional matters not at issue
in this appeal). R. 1-29. AHAB filed a notice of appeal on August 27, 2010, and
perfected its appeal on May 27, 2011, assigning clear error to the trial court's
forum non conveniens dismissal and its denial of forum-related discovery.
ARGUMENT
I. THIS CASE WAS PROPERLY DISMISSED UNDER THE
DOCTRINE OF FORUtM NON CONVENIENS
Forum non conveniens, codified in part in CPLR 327, affords the trial court
discretion to decline burdensome jurisdiction in cases "lacking a substantial nexus
with New York." Martin v. Mieth, 35 N.Y.2d 414, 418 (1974). Dismissal is
warranted if, on "balancing the interests and conveniences of the parties and the
court," it is determined that an action "could better be adjudicated in another
forum." Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 360 (1972); see CPLR
327(a) (authorizing dismissal if "the court finds that in the interest of substantial
justice the action should be heard in another forum"); Islamic Republic of Iran v.
Pahlavi, 62 N-Y.2d 474, 478-79 (1984).
Although the Appellate Division is permitted to exercise independent
discretion in reviewing forum non conveniens rulings, see Nguyen v. Banque
Indosuez, 19 A.D.3d 292, 294 (1 st Dep't 2005), it is not obliged to do so. Indeed,
this Court routinely affirms forum non conveniens determinations upon concluding
that there was no abuse of discretion below. See, e.g., Payne v. Jumeirah
Hospitality & Leisure (USA), Inc., 83 A.D.3d 518, 518 (1st Dep't 2011); World
Point Trading PTE, Ltd v. Credito Italiano, 225 A.D.2d 153, 159, 162 (1 st Dep't
1996); A&MExports, Ltd. v. Meridien Int'l Bank, Ltd., 207 A.D.2d 741, 741 (1 st
Dep't 1994).
A defendant seekingforum non conveniens dismissal need not prove that an
alternative forum exists. Pahlavi, 62 N.Y.2d at 478. He need only demonstrate
that the relevant factors weigh against the exercise of jurisdiction by a New York
court. Id. at 479. The issue on forum non conveniens analysis is whether New
York's interests in adjudicating a dispute justify imposing on the parties, witnesses,
and courts the burdens of litigating here. Foreign plaintiffs bear a heavy burden to
justify availing themselves of a New York forum: A non-resident such as AHAB
must "demonstrate that special circumstances exist[] warranting retention of the
case in New York." Mensah v. Moxl ey, 23 5 A.D.2d 910, 911 (3 d Dep't 1997).
New York courts typically consider several factors in evaluatingforum non
conveniens motions, including (a) the "non-residen[ce]" of "both parties to the
action"; (b) the jurisdiction in which the cause of action arose; (c) the "potential
hardship to the defendant and relevant witnesses"; (d) the "applicability of foreign
law"; (e) "the burden on the New York courts"; and (f) "the availability of another
suitable forum." Pahlavi, 62 N.Y.2d at 479, 48 1; Shin-Etsu Chem. Co. v. ICICI
Bank, Ltd., 9 A.D.3d 171, 178 (1st Dep't 2004); Wentzel v. Allen Mach., Inc., 277
A.D.2d 446, 447 (2d Dep't 2000).
The trial court properly dismissed this case on forum non conveniens
grounds, and correctly denied AHAB forum-related discovery. Here, every one of
the relevant factors heavily favors dismissal. As the trial court found:
(a) None of the parties resides in New York; all are foreign citizens
located in Saudi Arabia or the UAB, R. 13, R.24;
(b) All of the alleged misconduct arose overseas, R.24;
(c) The hardship to the parties and key witnesses-none of whom resides
in New York-would be severe, R.24, R.26;
(d) The New York courts would be required to interpret and apply Saudi
and UAE law, R.24-25;
(e) The burdens on the New York courts are unjustifiable, not least
because parallel actions in other fora raise the risk of "duplication of
effort" and "inconsistent rulings by courts in different jurisdictions,"
R.26-27; and
(f) Multiple jurisdictions offer suitable alternative fora for adjudicating
the claims at issue, R.24, R.27.
As th e court noted,, both AHAB and Mashreq have sought similar-indeed,
broader-relief in other jurisdictions, and Masbreq consented to dismissal of its
case here in favor of litigation in the UAE. R. 1453-67. Adjudication of AHAB's
claims here would simply add yet another parallel proceeding to the multiple fora
hearing AHAB's allegations. Taken together, these factors effectively compelled
dismissal of the case,, as the trial court correctly concluded. R.24.
A. AHAB's Threshold Procedural Arguments Regarding the
Trial Court's Supposed Lack of Authority to Dismiss this
Case Are Nothing But Lawyer Makeweights
1. There Was No Improper Sila Sponte Action Below
Seemingly cognizant of the weakness of its position on the merits of the
forum non conveniens analysis, AHAB opens its argument on appeal by claiming
that the trial court exceeded its technical authority in granting dismissal of the
entire case below,, including both Mashreq's first-party claims and AHAB's
third-party claims against Mr. Al-Sanca. Nothing could be further from the truth
(and, in any event, AHAB waived any such argument by failing to raise it below,
see, e.g., Sosa v. Cumberland Swan, Inc., 210 A.D.2d 156, 157 (1 st Dep't 1994)).
The trial court acted well within its statutory and prudential authority by
dismissing the entire action after (1) Mr. Al-Sanea moved to dismiss the third-party
claims on forum non conveniens grounds; (2) dismissal of the entire case on forum
non conveniens grounds was raised in open court by both Mr. Al-S anea and the
trial court; (3) all parties were afforded an opportunity to brie fforum non
conveniens issues as applied to the entire case; and (4) Mashreq expressly
consented to dismissal of its first-party claims.
AHAB's argument that the trial court undertook an improper sua sponte act
finds no support in the law. Indeed, New York' sforum non conveniens statute
itself refutes AHAB's claim, and confirms that the trial court was empowered to
resolve Mr. Al-Sanea's motion by dismissing all or any portion of the case below:
"When the court finds that in the interest of substantial justice the action should be
heard in another forum, the court, on the motion of any party, may stay or dismiss
the action in whole or in part on any conditions that may be just." CPLR 327(a)
(emphasis added). New York courts routinely exercise their discretion in tailoring
the scope offorum non conveniens dismissal as appropriate to the facts of a given
case. See, e.g., Imperial Imps. Co. v. Hugo Neu & Sons, 161 A.D.2d 411, 412 (1 st
Dep't 1990) (severing third-party action from first-party action and dismissing
third-party action on motion of third-party defendant to dismiss entire case, finding
that the motion "invoked the court's authority to entertain the granting of such
relief in full or in part, based upon any consideration that might be just (CPLR
3 27(a)), irrespective of whether or not [third-party defendant] specifically sought a
severance"); see also Shiboleth v. Yerushalmi, 268 A.D.2d 3 00, 3 00 (1 st Dep't
2000); Banco do Estado de Sao Paulo S.A. v. Mendes Jr. Int'l Co., 249 A.D.2d
13 7, 13 8-39 (1 st Dep't 1998).
That Mr. Al-Sanea, the third-party defendant, was the party whose motion
invoked forum non conveniens, and that Mr. Al-Sanea was the first party to
proposeforum non conveniens dismissal of Mashreq's first-party claims, is of no
moment. A third-party defendant such as Mr. Al-Sanea "shall have the rights of a
party adverse to the other parties in the action." CPLR 1008; see also Kearns v.
Johnson, 23 8 A.D.2d 121, 122 (1 st Dep't 1997). Although Mr. Al-Sanea initially
moved to dismiss only the third-party claims, his counsel raised in open court the
proposition of extendingforum non conveniens dismissal to the entire case. 6 All of
6 R.654-55 ("Mr. Serio: ... I do think that your Honor is onto something in that
the first-party action, if you will, .filed by Mashreq is also subject to duplicative
proceedings. I understand that Mashreq has filed a suit in the United Arab
Emirates against AHAB; and so in fact, just as with respect to my forum non
motion where we contend that there are multiplicity of other proceedings that
have far greater connection to the parties than does New York and that this is an
imposition, I think the same could be true."); R. 1451 ("Mr. Serio: .. . My
motion of course is addressed to the third-party complaint. But in a sense, as an
amicus of the Court, I mentioned that the last time, that in fact we have
standing, that the Court would be well grounded in its discretion to dismiss the
entire action as on forum non conveniens grounds." (emphasis added)); see also
R. 1454, R. 1459, R. 1474. AHAB falsely contends that Mr. Al-Sanea raised
forum non conveniens dismissal of the first-party action only in his reply brief.
That contention is not only untrue, R.654-55, but also irrelevant, as AHAB was
afforded an opportunity to brief the issue of whether the first-party claims
should be dismissed on forum non conveniens grounds.
the parties, including AHAB, were afforded an opportunity to brief whether the
entire case should be dismissed on forum non conveniens grounds.7 R.658-60.
Moreover, Mashreq expressly consented to forum non conveniens dismissal
of the first-party claims. R. 1453, R. 1467. As this Court has recognized, and
despite AHAB's suggestions to the contrary, Mashreq was well within its rights to
withdraw its claims against AHAB and consent to forum non conveniens dismissal
of AH-AB's counterclaims. See Sears Tooth v. Georgiou, 69 A.D.3 d 464, 465 (1 st
Dep't 20 10) (dismissing counterclaims on forum non conveniens grounds after
plaintiff withdrew his underlying claims).
AHAB claims the trial court's dismissal of the first-party claims was "clear
error"-but, tellingly, it cites no case in support of that proposition. No such case
exists. The only cases AHAB cites concerned instances of true sua sponte action
in which no party had sought the court's intervention on forum non conveniens
grounds.8 No New York case has ever held that a court lacks authority to dismiss
7 Mr. Al-Sanea's notice of motion also specifically sought "such other and
further relief as the Court deems just and proper." R.66; ef CPLR 2001.
8 See VSL Corp v. Dunes Hotels & Casinos, Inc., 70 N.Y.2d 948, 948 (1988) (no
forum non conveniens motion by any party); Todtman, Young, Tunick,
Nachamie, Hendler, Spizz & Drogin, P. C v. Richardson, 231 A.D.2d 1, 5 (1 st
Dep't 1997) ("The IAS Court did not dismiss the complaint for lack of subject
matter jurisdiction, as defendants had requested. Rather . .. the court
essentially decided the motion, sua sponte, under a choice of forum analysis, a
[Footnote continued on next page]
first-party claims in light of a forum non conveniens motion filed by a third-party
defendant.
2. The Trial Court Was Not Obliged to Hear the
Third-Party Claims as "Inseparably Connected" to
the First-Party Claims
Even if the trial court had erred in dismissing the first-party action-and it
assuredly did not-it still would have been proper to dismiss AHAB's third-party
claims. New York courts routinely divide cases on forum non conveniens grounds,
for example, by dismissing third-party claims-including indemnity claims such as
AHAB's-while maintaining related first-party claims. See, e.g., Stravalle v. Land
Cargo, Inc., 39 A.D.3d 735 (2d Dep't 2007); Shiboleth, 268 A.D.2d at 300;
Imperial Imps., 161 AD.2d at 412. Mashreq' s routine commercial claims against
AHAB, seeking enforcement of a financial transaction, and AHAB's claims
against Mr. Al-Sanea, concerning an alleged global fraud involving the conduct of
AHAB's internal affairs and global business activities, as well as billions of dollars
in excess of the Mashreq transaction, are entirely severable disputes.9
[Footnote continued from previous page]
variation of the doctrine of forum non conveniens."); In re JBernz (Widschi), 139
A.D.2d 444, 444 (1 st Dep't 1988) (reversing sua sponte forum non conveniens
dismissal "without prejudice to a motion by any party to dismiss the proceeding
on the ground offorum non conveniens").
9 None of AHAB's cases demonstrates that the first- and third-party claims at
issue here must be heard together. Those cases address different issues, apply
[Footnote continued on next page]
AHAB's conduct confirms that its purported need to litigate its claims in one
forum is pretext. AHAB has asserted the same allegations in a multitude of
duplicative proceedings-including in the Cayman Islands, where the Mashreq
transaction is at issue, and in California, where AHAB recently sued Glenn Stewart
for allegedly aiding and abetting Mr. Al-Sanea's supposed fraud, see AHAB Br. at
[Footnote continued from previous page]
different standards, and/or analyze different factual scenarios. See Van
Deventer v. CS SCF Mgmt. Ltd., 37 A.D.3d 280, 281 (1 st Dep't 2007) (refusing
to dismiss two of fifteen claims against defendants while proceeding with
remaining claims); Perkow v. Frank W Winne & Sons, 36 A.D.3d 1189, 1190
(3d Dep't 2007) (refusing to dismiss foreign party that was subject to
jurisdiction in Pennsylvania, where "the burden on it in litigating in New York
was not shown to be any greater than in Pennsylvania!'); Kissimmee Mem '1
Hosp. v. Wilson, 188 A.D.2d 802, 803 (3d Dep't 1992) (refusing to dismiss
counterclaim, particularly because judgment for plaintiff on principal claim
would "bar[]" counterclaim); Am. Home Assurance Co. v. Ins. Corp. of Ireland,
603 F. Supp. 636, 642 (S.D.N.Y. 1984) (under federalforum non conveniens
standard, refusing to dismiss action commenced by New York plaintiff despite
possibility that foreign defendants "will not be able to implead [foreign] third-
party defendants"); Excel Shipping Corp. v. Seatrain Int'l S.A., 5 84 F. Supp.
734, 743-44 (E.D.N.Y. 1984) (under federal standard, refusing to dismiss third-
party claims asserted under "liberal" admiralty rules permitting defendant to
hold third-party defendant "liable directly to [first-party] plaintiff'). Moreover,
American Home Assurance and Excel Shipping expressly acknowledge that
first- and third-party claims may be severed. Accord, e.g., Olympic Corp. v.
Societe Generale, 462 F.2d 376, 378-79 (2d Cir. 1972). Nor does In re Air
Crash Near Nantucket Island, No. 00-MDL-1 1344, 2004 U.S. Dist. LEXIS
16085 (E.D.N.Y. Aug. 16, 2004), support AH{AB's position. That case
involved the federal standard-which requires an alternative forum-and
merely held that defendants in a series of cases arising out of a plane crash
should be amenable to suit in one forum. AHAB does not seek to consolidate
its entire global litigation campaign within a single forum.
32-33 & n.22, 46-yet AHAB has never claimed that they should all be
consolidated in one forum.
Thus, AHAB's invocation of New York's purported "public policy of
encouraging the consolidation of cases presenting common questions of law and
fact," AHAB Br. at 22, is disingenuous at best. It is not consolidation that AHAB
seeks-rather, AHAB seeks to prosecute a multiplicity of related proceedings in
order to maximize its procedural advantages.
B. All of the Traditional Forum Non Con veniens Factors
Support Dismissal
1. None of the Parties Resides in New York
Where no party to a dispute resides in New York, the balance powerfully
favors dismissal. See, e.g., Pahlavi, 62 N.Y.2d at 479; Nguyen, 19 A.D.3d at 294-
95 (reversing denial offorum non conveniens dismissal where, inter alia, "[o]nly
one of seven named plaintiffs lives in New York"). As the trial court correctly
found,, none of the parties to this dispute resides in New York-or anywhere in the
United States. R. 13, R.24-
2. The Relevant Events Occurred in the Middle East
That the "'transaction[s] out of which the cause of action arose occurred
primarily in a foreign jurisdiction' weighs strongly in favor of dismissal." Silver
Lane Advisors LLC v. Bellatore LLC, Index No. 600668/09, 2009 WVL 2045513, at
* 3 (Sup. Ct. N.Y. Cnty. July 6, 2009) (quoting Pahlavi, 62 N.Y.2d at 479); accord,
e.g., World Point Trading, 225 A.D.2d. at 159. Here, all of the relevant alleged
events transpired in the Mfiddle East.
The first-party claims concern the breach of a currency-exchange agreement,
in which AHAB3 failed to make payment of Saudi riyals to Mashreq' s account in
Saudi Arabia. R. 104, R. 125,- R. 139. AHAB does not contend that this action arose
in New York. The alleged basis of AHAB's third-party claims is that Mr. Al-
Sanea, in his position at AHAB, secretly exercised unauthorized control over
AHAB's employees and businesses, all of which were operated from Saudi Arabia
(or Bahrain). See, e.g., R.24, R. 112. With the exception of the ministerial acts of
New York bank employees instructed by parties overseas, this claimed conduct
occurred entirely outside of New York. AHAB alleges that Mr. Al-Sanea
"directed employees of AHAB to agree to, and to implement the transaction" at the
center of this case. R. 112. But AHAB nowhere alleges that any of that claimed
conduct occurred in New York. That is not surprising, because none of the parties
to AHAB's third-party claims resided or did business here. As the trial court
found, "[allthough the alleged fraud may have taken place with use of banks in
New York, the alleged fraudulent activities occurred in Saudi Arabia." R.24.
AHAB's assertion that some of the funds at issue passed through New York
correspondent bank accounts changes none of this. Such a New York connection
"at best is only marginal,." A &MExports, Ltd. v. Meridien Int'l Bank, Ltd., 207
A.D.2d 741, 741-42 (1 st Dep't 1994), and has nothing to do with the substance of
this case. Courts have repeatedly dismissed similar cases on forum non conveniens
grounds where, as here, the crux of the dispute concerned events that transpired
outside of New York. See id.; World Point Trading, 225 A.D.2d at 160-61
(finding "locus of the asserted breach" in dispute between foreign entities to be
outside of New York even though breach involved failure to make payment to a
New York bank). AHAB argues (wrongly) that it supposedly suffered harm in
New York, but there is no dispute that the transactions at issue were entered into in
the Middle East, that AHAB's liability arises from its failure to make payment in
the Middle East, and that all of Mr. Al-Sanea's alleged misdeeds were carried out,
if at all, from Saudi Arabia.
3. Dismissal Serves the Convenience of the Parties and
Witnesses
To prevail on its claims, AHAB will need to prove its allegations that Mr.
Al-Sanea directed the transactions at issue-which he did, if at all, from Saudi
Arabia-and that he did so without AHAB's knowledge or authorization.
Virtually all of the key evidence germane to those allegations is in the Middle East.
As the trial court recognized, this strongly favors dismissal. R.26; see, e.g.,
Pahlavi, 62 N.Y.2d at 482.
Witnesses. The likely witnesses in this case are almost all in the Middle
East or elsewhere overseas, and many of them cannot be compelled to testify here.
R-1296-1304. AHAB is a Saudi partnership, and almost all of its partners reside in
Saudi Arabia, as does Mr. AI-Sanea. R.618-20. Mashreq is based in Dubai. R.50.
The employees of all the relevant entities reside principally in Saudi Arabia,
Bahrain,, or the UAE. R. 1296-1304. Mr. Al-Sanea and most of the AHAB
partners are currently prohibited from leaving Saudi Arabia. R. 1296.
In total, there are at least forty-eight potential witnesses residing in the
Middle East-thirty-seven in Saudi Arabia alone. R.1296-04. AHAB does not
dispute the residence of any. AHAB Br. at 34. Instead, it asserts that the relevant
witnesses are "scattered" and claims that no forum is perfectly situated to compel
their testimony. AHAB Br. at 38. But the key question-which AHAB does not
address-is where the witnesses are to be found and the extent to which they
would be burdened by an appearance in New York. The key witnesses concerning
the core issues here-whether M\r. Al-Sanea wielded unauthorized control over
AHAB's affairs, and what knowledge AHAB had of his alleged actions-are Mr.
Al-Sanca, the AHAB partners, and relevant current and former personnel of
Al-AB and Saad entities. 10 Many of those witnesses reside in Saudi Arabia and
10 AHAB makes much of the fact that, according to its expert, uncorroborated
testimony of the parties' personnel would not be credited by a Saudi tribunal,
R.952, claiming that this means Saudi Arabia cannot provide a suitable forum.
This is precisely the sort of procedural difference that courts have specifically
rejected as grounds for opposingforum non conveniens dismissal. See, e.g.,
[Footnote continued on next page]
are subject to travel bans. R.622, 1295-96. The vast majority of the witnesses
located outside of Saudi Arabia (many of whom lived there at the time) reside in
other Middle Eastern states-primarily Bahrain and the UAE-none of which is a
signatory to the Hague Convention AHAB seeks to invoke. R.974-77. Moreover,
none of the parties or key witnesses identified by Mashreq, AHAB, or Mr. Al-Sanea
is located in New York. R.967-68. Thus, AHAB's claim that New York is better
equipped than other fora to compel relevant testimony is largely illusory.
Compelling these witnesses and the parties to appear and produce evidence
in New York would impose substantial burdens on them. See, e.g., Nasser v.
Nasser, 52 A.D.3d 306, 306-07 (1st Dep't 2008); Garmendia v. O'Neill, 46 A.D.3d
361, 362 (1 st Dep't 2007); Silver Lane Advisors, 2009 WVL 2045513, at *3.
Requiring Saudi nationals, for example, to travel more than 6,500 miles in order to
appear in New York-assuming they are not barred from doing so, see R. 1296-
would be extraordinarily burdensome. Furthermore, many of the witnesses do not
speak English as a first language-including Mr. Al-Sanea and the AHAB
partners. R.1296, R.1299-1300. That some witnesses may speak English fluently,
[Footnote continued from previous page]
Panama Processes, S.A. v. Cities Serv. Co., 650 F.2d 408, 415 (2d Cir. 198 1);
,id at 416 (Maletz, J., dissenting) (upholdingforum non conveniens dismissal
despite dissent's assertion that, "in Brazil the officers, directors and agents of a
corporate litigant usually cannot testify").
as AHAB offers in counter-argumnent, is beside the point. 11 Indeed, contrary to its
suggestions here, AHAB has admitted in court filings elsewhere that some of its
own witnesses will "require an interpreter" in order to testify in English. R.985.
In the recent U.K. trial of the consolidated bank actions against AHAB, AHAB's
counsel "insisted that arrangements be made for ... more than one interpreter" to
translate testimony of potential witnesses. R. 1784.
Moreover, many of the witnesses are foreign non-parties that cannot be
compelled to testify in New York-such as former AHAB employees who are
beyond the trial court's subpoena power-which further weighs against litigation
in New York. See Hormel Int'l Corp. v. Arthur Andersen & Co., 55 A.D.2d 905,
906 (2d Dep't 1977); see also Murray v. British Broad Corp., 81 F .3 d 287, 294-95
(2d Cir. 1996); Howard v. Four Seasons Hotels Ltd., No. 96 Civ. 45 87, 1997 WVL
107633, at *3 (S.D.N.Y. Mar. 10, 1997). And Saudi witnesses, in particular, are
not subject to service under the Hague Convention on Service of Process.12 See
Tinicum Props. Assocs. Ltd. P ship v. Garnett, Civ. A. No. 92-0860, 1992 WL
11AHAB touts the supposed significance of two witnesses not in the Middle
East-Glenn Stewart and Mark Hayley-but both of them are located
thousands of miles from New York, and AHAB offers no evidence that either
Hayley (located in the U.K.) or Stewart will "6agree" to testify in New York.
12 In contrast,, Saudi Arabia, Bahrain, and the UAE are parties to a Gulf
Cooperation Council agreement concerning cross-border judicial assistance.
R.95 1.
995 90, at * 1 (E.D. Pa. Apr. 29, 1992). Deposing Saudi nationals within Saudi
Arabia in aid of foreign proceedings is significantly complicated by Saudi law.
R. 1495-97. AHAB also baldly asserts that witnesses from New York banks have
"highly relevant" relevant testimony, but it proffers no evidence of any such
information held by those entities, which merely executed ministerial banking
transactions (which are largely undisputed). These facts also favor dismissal. See,
e.g., World Point Trading, 225 A.D.2d at 161.
Documents. Like the witnesses, the key documents relevant to this dispute
are likely in the Middle East-in Saudi Arabia, Bahrain, or the UAE-, where the
parties are based-and many are in Arabic. AHAB concedes that there are
relevant documents in Saudi Arabia, AHAB Br. at 36-and, indeed, it was recently
forced to disclose to the plaintiffs in the consolidated U.K. bank cases certain
additional documents its counsel allegedly discovered in a "cupboard" in the Saudi
office of one of its partners. R. 1781-1782. AHAB makes much of the fact that its
documents are available electronically, id. at 37, but that is of little moment given
that it allegesforgery as to many if not all of the key documents, R.89, R-91, R.97,
R. 103. AHAB itself admits that examination of original documents is necessary to
address such allegations. R.98 1.
Additionally, all or most of the key documents concerning Mr. Al-Sanea's
authority vel non to act on AHAB's behalf, and AHAB's knowledge of his
activities, consist of Arabic-language legal instruments governed by Saudi law, as
to which the only legally operative text is the Arabic original, see, e.g., R.989-
1024-and the parties may dispute whether contemporaneously prepared English
translations of those documents accurately express the operative terms.
Documents evidencing what AHAB's partners knew or did not know, and what
alleged actions by Mr. Al-Sanea they authorized or ratified, are also likely to
include Arabic documents. AHAB itself recently conceded that a "vast amount" of
relevant "documentation was in Arabic," necessitating "six agencies of
translators." R. 1782. Even when available, translations of foreign-language
documents are not free from ambiguity. See, e.g., In re Bancredit Cayman, Ltd.,
No. 06-11026, 2008 WL 5396618, at *6..*7 (Bankr. S.D.N.Y. Nov. 25, 2008).
AHAB also makes much of supposedly relevant documentary evidence from
Bank of America and HSBC that would be located in New York. But it misleads
the Court in suggesting that it must litigate here in order to obtain that evidence; in
reality, AH-AB has already obtained a court order authorizing it to take discovery
from those banks in aid of its foreign litigation efforts. See Standard Chartered,
2011 WI. 1900695 , at * 1. In any event, the mechanics of the relevant
correspondent bank transactions are largely uncontested.
4. This Case Would Require the Court to Apply Saudi
and UAE Law
As the trial court correctly held, AHAB's claims against Mr. Al-Sanea are
governed by Saudi law, and Mashreq's claims against AHAB are governed by
UAE law. R.24-25. This is "an important consideration .. . weighiling] in favor of
dismissal." Shin-Etsu, 9 A.D.3d at 178 (citing Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 509 (1947), and Bewers v. Am. Home Prods. Corp., 99 A.D.2d 949, 950 (1st
Dep't), aff'd, 64 N.Y.2d 630 (1984)); accord, e.g., Tilleke & Gibbins Int'l Ltd. v.
Baker & McKenzie, 302 A.D.2d 328, 329 (1st Dep't 2003). Indeed, the "mere
likelihood that foreign law will apply weighs in favor of dismissal." Cavlam Bus.
Ltd. v. Certain Underwriters at Lloyd's, London, No. 08 Civ. 2255, 2009 WL
667272,, at * 8 (S.D.N.Y. Mar. 16, 2009) (emphasis added); accord Globalvest,
2005 WL 1148687, at *8.
AHAB does not dispute that UAE law controls Mashreq's claims. It does,
however,, self-servingly assert that its fraud-based claims are governed by New
York law. That is simply wrong. Under New York choice-of-law rules, a claim is
governed by the law of the jurisdiction that, "because of its relationship or contact
with the occurrence or the parties, has the greatest concern with the specific issue
raised in the litigation." Istim, Inc. v. Chemical Bank, 78 N.Y.2d 342, 347 (1991)
(internal quotation omitted). Although New York courts at one point "applied a
traditional, 'territorially oriented' approach to choice-of-law issues which applied
the law of the geographical place where one key event occurred, such as the place
of the wrong in tort cases"-which AHAB argues for here, AH-AB Br. at 43-this
State has since "abandoned such rules" in favor of "interests analysis." Istim, 78
N.Y.2d at 347.13 Today, New York courts look to factors like those set out in
section 145 of the RESTATEMENT (SECOND) OF CONFLICTS OF LAWS: the "place
where the injury occurred," the "place where the conduct causing the injury
occurred," the "domicil, residence, nationality, place of incorporation and place of
business of the parties," and the "place where the relationship, if any, between the
parties is centered." 14
None of these considerations implicates New York. Al-AB, a Saudi
partnership, alleges fiduciary misconduct by a Saudi citizen that transpired in
Saudi Arabia, that concerns the exercise of managerial control over a Saudi
partnership, and that caused injury in Saudi Arabia where AHAB is located (and
where AHAB's liability arose when it failed to pay Saudi riyals into Mashreq's
13 See also AroChem Int'l, Inc. v. Buirkie, 968 F.2d 266, 270-71 (2d Cir. 1992);
Simon v. Philip Morris, Inc., 124 F. Supp. 2d 46, 56 (E.D.N.Y. 2000) (noting
that the Schultz case (cited by AHAB here) did not return New York conflicts
law to the traditional "last event necessary" test).
14 See, e.g., Schultz v. Boy Scouts of Am., 65 N.Y.2d 189 (1985); Babcock v.
Jackson,,12 N.Y.2d 473 (1963). Schultz does not support AHAB's position;
that case expressly noted that New York has "departed from traditional
doctrine" by abandoning "the law of the place of the wrong" as a controlling
conflict-of-laws principle. Schultz, 65 N.Y.2d at 196.
Saudi bank account). 15 AHAB's claims arose in Saudi Arabia, and Saudi law will
apply to them. See, e.g., Atsco Ltd. v. Swanson, 29 A.D.3 d 465, 465-66 (1 st Dep't
2006); Navallo v. Am. Standard, Inc., 224 A.D.2d 599, 599-600 (2d Dep't 1996);
see also Hart v. Gen. Motors Corp., 129 A.D.2d 179, 181-83, 185 & 11.3 (1 st Dep't
1987).16
The ministerial involvement of New York correspondent bank transactions
does not render New York the jurisdiction with the "greatest concern"~ over
AHAB's claims. Under similar circumstances, this Court held in Atsco Ltd. v.
Swanson, for example, that Malaysian law applied to fraudulent conveyance claims
involving the transfer of Malaysian assets into New York and subsequent New
York transactions designed to shield those assets from enforcement of a Malaysian
judgment. 29 A.D.3d 465, 465-66 (1st Dep't 2006); R.l 187-89, R.l 193-95. Here,
15 Even under AHAB 's flawed "last event" choice-of-law theory, see AHAB Br.
at 43,, New York law would not apply, because the alleged "last event"
establishing liability here occurred either in Saudi Arabia-where Mr. Al-Sanea
allegedly caused AHAB to take on unauthorized debts to Mashreq, and where
AHAB's failure to pay Saudi riyals to Mashireq arose-or in Bahrain, where
Awal Bank refused AHIAB access to funds it held on account for AH-AB.
R. 104, R. 113 -15.
16 For similar reasons, AH-AB's counterclaims against Mashreq would be
governed by UAE or Saudi law. Mashreq's alleged involvement in Mr. Al-
Sanea's supposed scheme would have transpired from the UAE and would have
related to Mr. Al-Sanea's alleged acts in Saudi Arabia, and AHAB's injury
would have arisen in Saudi Arabia.
as in Atsco, the fact that some aspects of the alleged misconduct touched New
York is not enough to justify applying New York law. Indeed, the regulation of
the internal affairs of AHAB, a Saudi partnership company, is entrusted to Saudi
law as a matter of public policy. See Globalvest, 2005 WL 1148687, at *8 (citing
Edgar v. MITE Corp., 45 7 U.S. 624, 645 (1982)).
Indeed, ARAB has admitted elsewhere that Saudi law governs the question
of whether its debts are the product of unauthorized conduct by Mr. Al-Sanea; in
the consolidated U.K. bank cases, for example, AHAB asserted that it planned to
establish its defense of unauthorized conduct by presenting evidence regarding Mr.
Al-Sanea' s "authority ... to act on behalf of AHAB," including expert evidence on
"Saudi law ... in relation to issues of authority." R.984-86 (emphasis added).
Even before the trial court below, AHAB acknowledged the applicability of Saudi
law to its own internal affairs. 17 AHAB now lamely claims that choice-of-law
analysis is irrelevant because "[n]o system of law" would penmit the misconduct it
alleges against Mr. Al-Sanea. That misses the point entirely; whether Mr. Al-
Sanea is liable to AHAB-i. e. , whether he surreptitiously engaged in unauthorized
conduct or, alternately, whether AHAB's financial woes are the result of innocent,
authorized, yet unfortunate financial mismanagement (by Mr. Al-Sanea or others)
17 R.2 14; R.237 ("Just, Your Honor, that -- you're right. Saudi law does apply.").
that was known to AHAB-can be determined only by applying the facts of the
case to the controlling principles of Saudi law that govern those parties and their
business operations. R.24.
5. Hearing This Case in New York Would Impose an
Undue Burden on the Court
Litigating this case in New York would also impose an undue burden on the
New York courts. See, e.g., Pahlavi, 62 N.Y.2d at 479-82. Because New York
has no interest in this lawsuit, see infra at 44-48, the substantial burden on jurors
and on an already congested court system cannot be justified.
This is not a run-of-the-mill civil case. AHAB's claims concern allegations
of a massive and complex (albeit far-fetched) multi-national fraud conducted from
Mr. Al-Sanea's Saudi headquarters. A New York court would need to hear
evidence from foreign parties and witnesses, involving foreign languages and legal
principles, and expert testimony on foreign law. R.984-86, R. 1296-13 04; see, e.g.,
Troni v. Banca Popolare Di Milano, 129 A.D.2d 502, 503-04 (1st Dep't 1987).
Litigating the case likely will require discovery of hundreds of thousands of
documents, testimony from scores of foreign witnesses, and years of protracted
court proceedings. The core of the case concerns the operations of a Saudi
business enterprise by Saudi nationals-not the ministerial execution of electronic
transactions by New York bank functionaries. New York faces a disproportionate
burden in terms of language and logistics.
The burdens that would be foisted on a New York court here are even less
justifiable in light of AHAB's duplicative litigation efforts in other jurisdictions
around the world. See, e.g., Citigroup Global Mkts., Inc. v. Metals Holding Corp.,
45 A.D.3d 361, 362 (1st Dep't 2007); World Point Trading, 225 A.D.2d at 161;
see also R.620-22. This multiplicity of parallel actions "involves duplication of
effort" and "presents the attendant risk that conflicting rulings might be issued by
courts of two jurisdictions," which is "a powerful factor favoring dismissal."
World Point Trading, 225 A.D.2d at 16 1; Alberta & Orient Glycol Co. v. Factory
Mut. Ins. Co., Inidex No. 603150/05, 2007 WL 6881693, at * 12 (Sup. Ct. N.Y.
Cnty. Apr. 24 ,2007) (R.1274); accord Citigroup, 45 A.D.3d at 362. The trial
court expressly recognized that this compelling factor favored dismissal. R.26-27.
6. Saudi Arabia and the UAE Offer Superior
Alternative iFora for Resolving This Dispute
Perhaps the most critical factor compelling dismissal of this case is the ready
availability of alternative-indeed, superior-fora for resolving this case. As the
trial court found, "several alternative locations are available to resolve the disputes,
and indeed, AHAB has already commenced a number of actions against Al Sanea
in various countries." R.24. Mashreq has also asserted its claims elsewhere.
R. 1467. As the trial court correctly found, R.27, both Saudi Arabia and the UAE
offer available and adequate alternatives to litigation in New York.
In New York, forum non conveniens dismissal may be granted even in the
absence of an alternative forum, e.g., Shin-Etsu, 9 A.D.3d at 179 (citing Pahlavi,
62 N.Y.2d at 478-81,1 484), although the availability of another forum is an
"important factor," Pahlavi, 62 N.Y.2d at 48 1. A forum is "adequate" if-as in
this case-the defendant is "'amenable to process"' there and the forum
"'pennit[s] litigation of the subject matter of the dispute."' Shin-Etsu, 9 A.D.3d at
178-79 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (198 1)). A
forum need not entertain the entirety of a dispute to be an adequate alternative for
those portions it does adjudicate. Shiboleth, 268 A.D.2d at 300 (dismissing third-
party claims in favor of Israel while maintaining first-party claims).
i. Both Saudi Arabia and the UAE Are Adequate
and Available
There can be no dispute that Mr. Al-Sanea, a Saudi citizen and resident, is
amenable to process in Saudi Arabia. Nor is there any doubt that Saudi Arabia
offers an adequate forum to litigate this type of dispute, as Mr. Al-S anca's expert
opined. R.628, R.635-37. That opinion has repeatedly been confirmed. See, e.g.,
Kamel v. Hill-Rom Co., 108 F.3d 799, 802-03 (7th Cir. 1997); Forsythe v. Saudi
Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir. 1989); Shields v. Mi Ryung
Constr. Co., 508 F. Supp. 891, 896 (S.D.N.Y. 1981); see also Jeha v. Arabian Am.
Oil Co., 751 F. Supp. 122, 125-26 (S.D. Tex. 1990). Such cases squarely refute
AH-AB's contention that Saudi Arabia's procedural rules make it an inadequate
alternative-as did AHAB's expert, who opined that "Saudi Arabia maintains an
effective judicial system to adjudicate commercial disputes" that "discharges
effective justice on a routine basis." 18 R.947 (internal quotation omitted), R.955.
AHAB's only argument against litigating in Saudi Arabia is that it perceives
Saudi Arabia as a strategically disadvantageous forum-because it cannot avail
itself of U.S. discovery and evidentiary rules in a Saudi tribunal. That argument is
specious. AHAB's inability to "obtain expansive U.S.-style discovery" or U.S.
procedural advantages in another forum "do[es] not render the forum inadequate."
Globalvest, 2005 WLT 1148687, at * 9; see Fin. Guar. Ins. Co. v. 1KB Deutsche
Industriebank A G, Index No. 600704/08,2008 WL 5478808, at * 7 (Sup. Ct. N.Y.
Cnty. Dec. 29, 200 8) (R. 1215); Kuwaiti Eng'g Grp. v. Consortium Int'l, Index No.
600033/2005, 2007 WL 2175546, at *23 (Sup. Ct. N.Y. Cnty. Mar. 15, 2007)
18 Likewise, there can be no dispute that the courts of the UAE are available to
adjudicate the dispute between Mashreq and AHAB. Mashreq has sued AHAB
there and consented to dismissal of this case in favor of that one. R. 1467. At
its core, AHAB's only complaint regarding litigation in the UAE is that, as a
matter of substantive law, it cannot state a claim there. AHAB Br. at 19. It
does not argue, however, that the UAE refuses to "'permit[] litigation of the
subject matter of the dispute,"' Shin-Etsu, 9 A.D.3d at 178-79; it merely
quarrels with the form of litigation there. Such complaints fail to render the
forum inadequate. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 247,
254 (1981) ("The possibility of a change in substantive law should ordinarily
not be given conclusive or even substantial weight in the forum non conveniens
inquiry."). AHAB cannot base a forum non conveniens opposition on the mere
fact that it cannot prevail in the UAE.
(R. 123 0), aff'd, 50 A.D.3d 599 (1 st Dep't 2007); accord, e.g., Blanco v. Banco
Indus. de Venezuela, S.A., 997 F.2d 974, 98 1-82 (2d Cir. 1993); Panama
Processes, 650 F.2d at 415-16; supra note 10. AHAB's desire for New York
discovery cannot overcome the compelling grounds for forum non conveniens
dismissal. 19
ii. Although Not Necessary, the Entire Case Can
Be Heard in a Single Alternative Forum
AHAB also claims that Saudi Arabia and the UAE are inadequate because
those jurisdictions could not adjudicate the first-party and third-party claims in this
case together. That argument is not only legally irrelevant-there is no
requirement that Mashreq's first-party claims be heard in the same forum as
AHAB's third-party claims, see supra at 24-26-but also factually unsupported.
For example, nothing precludes AHAB from suing Mashreq and Mr. Al-Sanea in
Saudi Arabia. Saudi courts have jurisdiction over "cases filed against a Saudi," as
19 The few cases AHAB cites are inapposite, as they involved far greater New
York contacts than are present here-including, inter alia, defendants who
resided in New York and claims that were governed by New York law. See
Waterways Ltd. v. Barclays Bank PLC, 174 A.D.2d 324, 327-28 (1 st Dep't
1991) (defendant maintained an office in New York; contract was executed in
defendants' New York office and contained New York choice-of-law clause;
and key witnesses and documents were in New York); Republic of Lebanon v.
Sotheby's, 167 A.D.2d 142, 144 (1 st Dep't 1990) (defendant Sotheby's was
present in New York; property at issue was located in New York and had been
transported there by defendants; none of the claimants to the property resided in
alternative forum; and application of foreign law was in doubt).
well as over "cases filed against an alien" if either "the lawsuit involves .. , an
obligation"' that "originated or is enforceable in the Kingdom," or "the lawsuit is
against more than one person and one of them has a place of residence in the
Kingdom." R.l 1119. Likewise, the parties are already litigating in the UAE, where
Mashreq has sued both AHAB and Mr. Al-S anea, R. 1467, and nothing precludes
Al-AB from asserting its claims against Mrt. Al-Sanea there.
7. Saudi Arabia Has a Keen Interest in This Dispute
Dismissal under these circumstances also permitted the trial court to give
deference-as New York courts should-to Saudi Arabia's critical interest in
"cresolving its own affairs." Shin-Etsu, 9 A.D.3d at 178. "[W]here a foreign forum
has a substantial interest in adjudicating an action"--such as where that forum is
"keenly interested in governing the affairs of its financial institutions"--that
interest is yet another factor "weighing in favor of dismissal." Id. at 178;
Garmendia, 46 A.D.3d at 362.
Saudi Arabia has made clear that the dispute between AHAB and Mr. Al-
Sanea is matter of significant public concern with substantial implications for the
Saudi economy at large. The Saudi Government went so far as to form the Saudi
Committee-staffed by its Attorney General and several other high-ranking
officials-to investigate the dispute. R.620-21. There could be no clearer
expression of Saudi Arabia's interest in this dispute.
8. New York Has Virtually No Interest in This Dispute
AHAB also attempts to argue that the demonstrable burdens on the New
York courts are outweighed in this case by New York's supposedly "paramount"
interest in the case, deriving from an alleged "misuse" of the New York banking
system. Determining whether or not there was any such "misuse" of New York
banks,, however,, necessarily turns on principles of foreign law, and on their
application to facts that can be established only through evidence located abroad:
Either the transactions in AHAB 's name were authorized as a matter of Saudi law
and/or known to AHAB-in which case there was no fraud or "misuse" of any
New York banking instrumentality-or not. But even leaving that aside, AHAB's
contention of a "paramount" New York interest that precludes forum non
conveniens dismissal finds no support in the law offorum non conveniens.
New York courts have repeatedly rejected the notion that forum non
conveniens dismissal is unavailable whenever the alleged misconduct at issue
relates to the use of New York correspondent accounts. See, e.g., World Point
Trading, 225 A.D.2d at 160-61 (citing P. T Delami Garment Indus. v. Cassa di
Risparmio di Torino, 164. Misc. 2d 38 (Sup. Ct. N.Y. Cnty. 1994)); A&MExports,
207 A.D.2d at 74 1; Citigroup Global Mkts., Inc. v. Metals Holding Corp., Index.
No. 604205/05, 2006 WL 1594442, at * 6-.*7 (Sup. Ct. N.Y. Cnty. June 8, 2006),
aff'd, 45 A.D.3d 361, 362 (1st Dep't 2007). AHAB cites no case holding that
forum non conveniens dismissal must be denied in all cases involving alleged
misuse of New York banks.
Instead, Al-AB relies principally on two inapposite cases involving choice-
of-law and personal-jurisdiction issues-J Zeevi and Banco Nacional-in an
effort to conjure support for its claim that New York must hear this case. J Zeevi
involved a choice-of-law issue in a case brought by an Israeli partnership to
enforce an irrevocable letter of credit, given by a Ugandan bank, that called for
payment of dollars by Citibank in New York. 37 N.Y.2d at 223-25. The Bank of
Uganda, implementing a "confiscatory and discriminatory" policy of the Ugandan
government that reflected its "strong anti-Israel and anti-semitic" views, instructed
the defendant bank not to honor the letter of credit,, and the defendant accordingly
instructed Citibank not to make payment in New York. Id. at 227-28.
In holding that the defendants could not invoke Ugandan law to shield
themselves from liability for failure to make payment on the letter of credit in New
York, the Court of Appeals observed that New York had a "paramount" interest in
ensuring that the commercial expectations of parties to letters of credit payable in
New York are protected-by applying New York law to enforce such letters of
credit according to their terms.20 Id. It certainly did not hold, however, that New
York courts must bear the burden of adjudicating every tort dispute among foreign
parties that happens to involve some connection to a U.S.-dollar transaction.
Moreover, the paramount New York interest noted by J Zeevi "is not a trump to be
played whenever a party to such a transaction seeks to use our courts for a lawsuit
with little or no apparent contact with New York or the United States." First
Union Nat'l Bank v. Paribas, 135 F. Supp. 2d 443, 444-45, 453 (S.D.N.Y. 2001)
(grantingforum non conveniens dismissal of case involving non-payment in New
York of letter-of-credit obligations arising out of "a massive fraudulent scheme
perpetrated in London").
Similarly, AHAB's reliance on Banco Nacional is misplaced. AHAB claims
that the trial court "violate ld] the Banco Nacional blueprint for forum non
conveniens analysis," AHAB Br. at 8, but it relies upon the Banco Nacional court's
analysis of personal jurisdiction-notforum non conveniens-in making that
assertion. The trial court in Banco Nacional found that the defendant was subject
to long-arm jurisdiction under CPLR 302(a)(2) despite its lack of physical presence
in New York because defendant allegedly "direct[ed] tortious activities" from
20 Indosuez International Finance B. V v. National Reserve Bank, 279 A.D.2d 408
(1 st Dep't 200 1), aff'd, 98 N.Y.2d 238 (2002), and Wells Fargo Asia Ltd. v.
Citibank, N.A., 936 F.2d 723 (2d Cir. 1991), also involved choice-of-law issues,
not forum non conveniens.
"outside the state" and "defendant's bodily presence is not an indispensible
requirement for long-arm jurisdiction." 169 Misc. 2d at 188-89. It did not hold, as
AHAB suggests, that every financial tort claim that allegedly involves use of New
York banks by out-of-state defendants must be litigated in New York. Indeed, no
court has ever applied AHAB's supposed Banco Nacional "blueprint" for
analyzingforum non conveniens motions-or ever even cited Banco Nacional's
jurisdictional analysis in the context of a forum non conveniens motion.
Moreover, although Banco Nacional did deny a forum non conveniens
motion, its analysis of that issue did not turn on the facts recited by AHAB; rather,
the court refused to dismiss on forum non conveniens grounds because it expressly
found that "New York became the hub of defendant's activities." Id. at 192
(emphasis added). No such finding could be made here, particularly given the
panoply of foreign proceedings AHAB has commenced against Mr. A1-Sanea and
his alleged co-conspirators. Indeed, the mere fact that AlHAB sued in New York to
recover only $150 million of a $10 billion alleged fraud is proof positive that New
York is merely one of the "many spokes"-rather than the "hub"--of Mr. Al-
Sanea's supposed fraud. Id. The situs of the "hub" of that fraud-namely, Saudi
Arabia, where he supposedly wielded control over AHAB's affairs-is where this
case should be litigated.
Given the lack of nexus between New York and the subject matter of this
dispute, New York courts should not be forced to bear the burden of this litigation.
The fact that litigants may more easily gain access to our
courts-with the consequent increase in litigation-
stemming from enactment of the long-arm statute [and]
changing choice of law rules . . ., requires a greater
degree of forbearance in accepting suits which have but
minimal contact with New York.
Silver, 29 N.Y.2d at 36 1-62 (citations omitted). Thus, the trial court acted well
within its discretion in dismissing the case below.
11. THE TRIAL COURT PROPERLY DENIED AHABWS
REQUEST FOR FORUM-RELATED DISCOVERY
The trial court also providently exercised its discretion in granting Mr. Al-
Sanea's motion to dismiss without first entertaining AHAB's request to depose
him in Saudi Arabia and take other discovery supposedly bearing on forum non
conveniens issues. The decision to impose a discovery stay or grant a protective
order is committed to a trial court's case-management discretion. CPLR 32 14(b);
22 N.Y.C.R.R. § 202.70(g) (Rule of Practice 11l(d)); CPLR 3103(a); Andrews v.
Trustco Bank, Nat'lAss'n, 289 A.D.2d 910, 912-13 (3d Dep't 2001). This Court
affords "substantial deference" to a trial court's discovery determinations, e.g.,
Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 286 (1 st Dep't 2008), aff'd, 12 N.Y.3d
846 (2009), and typically reviews such determinations for abuse of discretion, see,
e.g., Doherty v. City of ew York, 24 A.D.3d 275, 275 (1 st Dep't 2005).
AHAB wrongly claims that it should have been afforded forum-related
discovery. "A motion to dismiss for forum non conveniens does not call for a
detailed development of the entire case through discovery, because '[rlequiring
extensive investigation would defeat the purpose of [the] motion."' Beekmans v.
JP. Morgan & Co., 945 F. Supp. 90, 95 (S.D.N.Y. 1996) (citation omitted)
(quoting Piper, 454 U.S. at 258); accord Garmendia v. O'Neill, 46 A.D.3d 361,
3 62 (1lst Dep't 2007); Otor, S.A. v. Credit Lyonnais, S.A., No. 04 Civ. 6978, 2006
WL 2613 775, at * 6 (S.D.N.Y. Sept. 11, 2006). The case of de Enamorado v.
Central American Steamship Agency, Inc., 160 A.D.2d 182 (1 st Dep't 1990), cited
in AHAB Br. at 49-5 1-which AHAB claims is the "most frequently cited
decision" on point, even though it has been cited only by one other court, in a
decision upholding the denial of forum-related discovery--does not support
AHAB's claim; it merely held that a lower court did not abuse its discretion by
granting forum-related discovery.2 1 AHAB cites no case finding that a trial court
did abuse its discretion by denying such discovery-in these or any other
circumstances.
AHAB's discovery demands were also properly denied because (1) AHAB's
attempt to depose Mr. Al-Sanea before his time to answer had expired was invalid
21 The other cases AH-AB cites all involved jurisdictional discovery, which is
contemplated by CPLR 3211 (d)-not forum-related discovery, which is not.
as a matter of law, see CPLR 3106(a); Hakim Consultants Ltd. v. Formosa Ltd.,
175 A.D.2d 759, 760 (1 st Dep't 199 1); Schwartz v. Wikier, 31 A.D.2d 755, 756 (2d
Dep't 1969); Kraft v. Trs. of Sailors 'Snug Harbor, 31 A.D.2d 918, 918 (1 st Dep't
1969) (per curiam); and (2) AHAB failed to meet this Court's stringent standards
for taking international discovery from foreign parties, Rich bell Info. Sen's., Inc. v.
Jup iter Partners, 32 A.D.3d 150, 155-59 (1 st Dep't 2006).
1I1. ALTERNATELY, THE TRIAL COURT COULD AND) SHOULD
HAVE DISMISSED THE THIRD-PARTY CLAIMS AGAINST
MR. AL-SANEA FOR LACK OF PERSONAL JURISDICTION
The trial court also could and should have dismissed AHIAB's third-party
claims against Mr. Al-Sanea for lack of personal jurisdiction. The burden of
proving jurisdiction "rests on [AHAB], as the part[y] asserting jurisdiction." Copp
v. Ramirez, 62 A.D.3d 23, 28 (1st Dep't 2009). It must allege facts establishing a
prima facie basis for jurisdiction. See de Capriles v. Lopez Lugo, 293 A.D.2d 405,
406 (1 st Dep't 2002). AHAB could not meet that burden here, where the only
connection between its claims and this forum is the ministerial transfer of U.S.
dollars through New York correspondent accounts.
The trial court purported to find personal jurisdiction under both the
"transacting business" standard of CPLR 302(a)(1) and the "tortious act within the
state" standard of CPLR 3 02(a)(2). R.2 1. But AHAB never pleaded CPLR
3 02(a)(2) as a basis for j urisdiction,22 and it conceded in its own submissions that
CPLR 3 02(a)(1) was insufficient to support jurisdiction, including by pleading
"lack[ of] personal jurisdiction" as a defense to Mashreq's first-party claims
(although it was forced to "withdraw" that defense for strategic reasons at oral
argument). R.87, R.1477; see also R.290-375.
In any event, AHAB could not satisfy CPLR 3 02(a)(1), which required
Al-AB to establish a "substantial relationship" between Mr. Al-Sanea 's
"transactions in New York and [AH-AB]' s cause of action." Johnson v. Ward,
4 N.Y.3d 516, 519 (2005) (internal quotation omitted). Mr. Al-Sanea had no
relevant contacts with New York. R. 108, R.1 111 , R.618-20. The facts were
insufficient to support personal jurisdiction. See, e.g, Warck-Meister v. Diana
Lowenstein Fine Arts, 7 A.D.3d 351, 352 (1st Dep't 2004); Hubbard, Westervelt &
Mottelay, Inc. v. Harsh Bldg. Co., 28 A.D.2d 295, 297 (1st Dep't 1967); M Katz &
Son Billiard Prods., Inc. v. G. Correale & Sons, Inc., 26 A.D.2d 52, 53 (1 st Dep't
1966), aff'd, 20 N.Y.2d 903 (1967).,
22 Even if AHAB had pleaded CPLR 302(a)(2), its allegations would not be
sufficient to support jurisdiction. AHAB claims the funds in its New York
account were proceeds of Mr. Al-Sanea's alleged fraud that never should have
been sent to New York in the first place-not legitimate AHAB property that he
somehow "stole" in New York. In any event, CPLR 302(a)(2) requires the
"tortious act" to occur in New York, and a fraud does not occur in New York
simply because it concerns transfers of property in New York. See, e.g., Roddy
v. Schmidt, 57 N.Y.2d 979, 98 1-82 (1982). There was no New York tort.
The sole New York contact AH-AB raised was that the transaction involved
funds passing through New York correspondent accounts. R. 109. But the mere
use of a New York correspondent account to conduct a transaction in dollars does
not give rise to jurisdiction over a non-domiciliary who maintains such an
account.23 And even if it could,, the accounts at issue were not Mr. Al-Sanea' s
accounts, and AH-AB failed to allege particularized facts showing that Mr. Al-
Sanea controlled or was the agent of the entities that owned them. See, e.g., N.
Valley Partners, LLC, v. Jenkins, Index No. 101957/08, 2009 WL 1058162, at *3
(Sup. Ct. N.Y. Cnty. Apr. 14, 2009); Karabu Corp. v. Gitner, 16 F. Supp. 2d 319,
323-24 (S.D.N.Y. 1998); compare R. 109-14.
AHAB strains to characterize its allegations as laying out a "conversion"
that transpired in New York, when funds held in AHAB's New York account
(which, according to AHAB, were illegitimate proceeds of Mr&. Al-Sanca's
unauthorized transactions in AHAB's name, not legitimate AHAB property located
in New York) were transferred to Awal Bank's New York account. But AHAB's
23 See, e.g., Faravelli v. Bankers Trust Co., 85 A.D.2d 3 35, 33 9 (1 st Dep't 1982);
Nemetsky v. Banque de Developpement de la Republique du Niger, 64 A.D.2d
694, 694-95 (2d Dep't 1978); Societe Financiere et d'Investissement
Providence S.A. v. Joint Stock Comm. Bank Avtobank, Index No. 6045 87/200 1,
slip op. at 6-9 (Sup. Ct. N.Y. Cnty. May 5, 2003) (R.447-50); Neewra, Inc. v.
Manakh Al1 Khaleej Gen. Trading & Contracting Co., No. 03 Civ. 293 6, 2004
WL 2813180, at * 1.-*4 (S.D.N.Y. Dec. 6, 2004) (R. 1276-79); Semi-Conductor
Materials, Inc. v. Citibank Int'l PLC, 969 F. Supp. 243, 246 (S.D.N.Y. 1997).
pleading confirms that those :funds were credited to AHAB's own account with
Awal Bank in IBahrain, and it was Awal Bank's failure to honor AHAB's demands
for payment on that account-in Bahrain-that led to the assertion of claims
against Mr. Al-Sanea. R. 113-14. There was no "conversion" in New York.24
24 Although AHAB's demand for jurisdictional discovery below is now moot
given the trial court's ruling on jurisdiction, it was just as devoid of merit as its
attempt to obtain "forum-related" discovery. See supra at 48-50; Ins. Co. offN.
Am. v. Emeor Grp., Inc., 9 A.D.3 d 3 19, 320 (1 st Dep't 2004); SNS Bank, N V v.
Citibank, NA., 7 A.D.3d 352, 353-54 (1st Dep't 2004); Russeck Fine Art Grp. v.
Theodore B. Donson, Ltd., Index No. 60 13 39/06, 2008 WL 2762944, at * 6
(Sup. Ct. N.Y. Cnty. June 27, 2008).
CONCLUSION
For all of the foregoing reasons, the order and judgment below should be
affirmed in the entirety or, at a minimum, should be affirmed insofar as they
directed dismissal of all claims against Mr. A1-Sanea.
Dated: New York, New York
December 7, 2011
Respectfully submitted,
GIBSON, DUNN & FRUTCHER LLP
By:______'L
Robert F. Serio
rserio~dgibsondunn.com
Gabriel Herrmann
ghermann(dibsondunn.com
200 Park Avenue
New York,, New York 10 166
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
Attorneys for Third-Party Defendant-
Respondent
PRINTING SPECIFICATIONS STATEMENT
I hereby certify pursuant to 22 NYCRR § 600. 10(d)(1)(v) that this brief was
prepared, using Microsoft Office Word 2010, to the following specifications:
Typeface:
Point Size:
Line Spacing:
Word Count:
Dated:
Times New Roman, a proportionally spaced typeface
14
Double, except footnotes which are single
The body of this brief, inclusive of point headings and
footnotes, and exclusive of those pages containing the table of
contents, the table of authorities, the proof of service and this
Statement, contains 12,995 words.
New York,, New York
December 7, 2011
Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By:
Robert F. S jo
rserio gibs ndunn-com
Gabriel Herrmann
gherrxnann(~gibsondunn.com
200 Park Avenue
New York, New York 10 166
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
A4ttorneys for Third-Party Defendant-
Respondent
AFFIRMATION 0OF SERVICE
GABRIEL HIERRMANN, an attorney duly admitted to practice law in the
Courts of this State, hereby subscribes and affirms as true, under penalty of perjury
pursuant to CPLR 2106, as follows:
1 . I am an attorney associated with the law firm of Gibson, Dunn &
Crutcher LLP, 200 Park Avenue, New York, New York, Tel. (212) 351-4000,
ghemnann~dgibsondunn.com. Attorneys for Third-Party Defendant-Respondent.
2. On the 7th day of December, 2011, I caused two true and correct
copies of the Brief of Third-Party Defendant-Respondent, with Printing
Specifications Statement, to be served by hand delivery upon the following counsel
of record:
Eric L. Lewis
LEWIS BAACH PLLC
445 Park Avenue
New York, New York 10022
Tel: (212) 826-7001
Fax: (212) 826-7146
Attorneys for Defendant-Third-Party Plaintiff-Appellant
Carmine D. Boccuzzi Jr.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
One Liberty Plaza
New York, New York 10006
Tel.: (212) 225-2000
Fax: (212) 225-3999
Attorneys for Plaintiff-Respondent
Dated: New York, New York
December 7, 2011 Gabriel He mann