Mashreqbank PSC, Appellant,v.Ahmed Hamad A1 Gosaibi & Brothers Company, Respondent.---------------------------------Ahmed Hamad Al Gosaibi & Brothers Company, Third-Party Respondent, v. Maan Abdul Waheed Al Sanea, Third-Party Appellant, Awal Bank BSC, Third-Party Defendant.

Brief

N.Y.February 19, 2014

To Be Argued By: ROBERT F. SERIO Time Requested: 30 MINUTES Court of Appeals State of New York Case No. APL-2013-00007 ————————— MASHREQBANK PSC, Plaintiff-Appellant, —against— AHMED HAMAD AL GOSAIBI & BROTHERS COMPANY, Defendant-Respondent. ————————— AHMED HAMAD AL GOSAIBI & BROTHERS COMPANY, Third-Party Plaintiff-Respondent, —against— MAAN ABDULWAHEED AL SANEA, Third-Party Defendant-Appellant, – and – AWAL BANK BSC, Third-Party Defendant. REPLY BRIEF OF THIRD-PARTY DEFENDANT-APPELLANT GIBSON, DUNN & CRUTCHER LLP Attorneys for Third-Party Defendant-Appellant 200 Park Avenue New York, New York 10166 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 Of Counsel: Gabriel Herrmann Christopher Muller Date Completed: September 30, 2013 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 5 I. AHAB MISCHARACTERIZES BOTH ITS OWN PLEADING AND THE MOTION RECORD IN AN ATTEMPT TO BOLSTER THE APPELLATE DIVISION’S FLAWED ANALYSIS ...................................... 6 II. THE APPELLATE DIVISION MISAPPLIED THIS COURT’S FORUM NON CONVENIENS CASE LAW ................................................. 10 A. The Appellate Division’s Forum Non Conveniens Analysis Was Infected by Several Fatal Legal Errors ................................................ 10 1. The Appellate Division Erroneously Held that New York’s Interest in Banking Disputes Is an “Overriding and Paramount” Factor in Forum Non Conveniens Analysis .............. 11 2. The Appellate Division Erroneously Held that Forum Non Conveniens Relief Must Be Denied Unless the Defendant Demonstrates that There Is a “Better” Alternative Forum ........... 14 3. The Appellate Division Erroneously Held that the Trial Court Must Accept AHAB’s Argumentative Characterizations of Its Own Allegations Concerning Mixed Questions of Law and Fact ................................................ 17 B. Properly Analyzed, the Relevant Forum Non Conveniens Factors Point Uniformly to Dismissal ................................................. 19 1. Saudi Arabia and the UAE Are Available Alternative Fora ........ 19 2. Saudi Arabia Has a Keen Interest in This Dispute ....................... 20 3. Allowing This Case to Proceed Would Unjustifiably Multiply Proceedings and Risk Conflicting Rulings .................... 21 4. Dismissal Would Serve the Convenience of the Parties and Witnesses ...................................................................................... 22 TABLE OF CONTENTS (continued) Page ii 5. This Case Would Require the New York Courts to Apply the Law of Saudi Arabia and the UAE ......................................... 25 6. None of the Parties Resides in New York .................................... 27 III. THE TRIAL COURT PROPERLY DISMISSED THE FIRST- PARTY ACTION .......................................................................................... 27 IV. MR. AL-SANEA HAS STANDING TO RAISE ALL THE ISSUES IN THIS APPEAL ......................................................................................... 31 V. ALTERNATIVELY, THE APPELLATE DIVISION SHOULD HAVE AFFIRMED DISMISSAL OF THE THIRD-PARTY CASE AGAINST MR. AL-SANEA FOR LACK OF PERSONAL JURISDICTION ............................................................................................ 35 CONCLUSION ........................................................................................................ 36 TABLE OF AUTHORITIES Page(s) Cases 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) ........................ 24 Atsco Ltd. v. Swanson, 29 A.D.3d 465 (1st Dep’t 2006) ........................................................................... 27 Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc. 2d 182 (Sup. Ct. N.Y. Cnty. 1996) ......................................... 12, 16, 26 BBIG Realty Corp. v. Ginsberg, 111 A.D.2d 91 (1st Dep’t 1985) ........................................................................... 32 Cavlam Bus. Ltd. v. Certain Underwriters at Lloyd’s London, No. 08 Civ. 2255, 2009 WL 667272 (S.D.N.Y. Mar. 16, 2009) .......................... 26 Creditanstalt Inv. Bank AG v. Chadbourne & Parke LLP, 4 Misc. 3d 481 (Sup. Ct. N.Y. Cnty. 2004) .......................................................... 16 DeLuca v. Lett, 173 A.D.2d 760 (2d Dep’t 1991) ......................................................................... 33 Duffy v. Horton Mem’l Hosp., 66 N.Y.2d 473 (1985) ........................................................................................... 33 Edwards v. Erie Coach Lines Co., 17 N.Y.3d 306 (2011) ........................................................................................... 26 Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574 (1980) .................................................................................... 12, 18 First Union Nat’l Bank v. Paribas, 135 F. Supp. 2d 443 (S.D.N.Y. 2001) .................................................................. 13 Globalvest Mgmt. Co. v. Citibank, NA., Index No. 603386/04, 2005 WL 1148687 (Sup. Ct. N.Y. Cnty. May 12, 2005) .................................................................... 16 TABLE OF AUTHORITIES (continued) Page(s) iv Hormel Int’l Corp. v. Arthur Andersen & Co., 55 A.D.2d 905 (2d Dep’t 1977) ........................................................................... 23 Imperial Imps. Co. v. Hugo Neu & Sons, 161 A.D.2d 411 (1st Dep’t 1990) ......................................................................... 30 Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474 (1984) ................................................................................... passim J. Zeevi & Sons v. Grindlays Bank (Uganda), 37 N.Y.2d 220 (1975) .................................................................................... 12, 35 Kliebert v. McKoan, 228 A.D.2d 232 (1st Dep’t 1996) ......................................................................... 18 Langan v. Cabela, 289 A.D.2d 377 (2d Dep’t 2001) ......................................................................... 33 Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327 (2012) ........................................................................................... 13 Murray v. British Broad. Corp., 81 F.3d 287 (2d Cir. 1996) ................................................................................... 24 Nguyen v. Banque Indosuez, 19 A.D.3d 292 (1st Dep’t 2005) ........................................................................... 27 Overseas Programming Co. v. Cinematographische Commerz-Anstalt, 684 F.2d 232 (2d Cir. 1982) ................................................................................. 19 Padula v. Lilarn Props. Corp., 84 N.Y.2d 519 (1994) ........................................................................................... 26 Panama Processes, S.A. v. Cities Serv. Co., 650 F.2d 408 (2d Cir. 1981) ................................................................................. 16 Patriot Exploration, LLC v. Thompson & Knight LLP, 16 N.Y.3d 762 (2011) ............................................................................................. 6 TABLE OF AUTHORITIES (continued) Page(s) v Reese v. Harper Surface Finishing Sys., 129 A.D.2d 159 (2d Dep’t 1987) ......................................................................... 32 Republic of Lebanon v. Sotheby’s, 167 A.D.2d 142 (1st Dep’t 1990) ......................................................................... 16 Rogowski v. Royce W. Day Co., 130 Misc. 2d 801 (Sup. Ct. Albany Cnty. 1986) .................................................. 32 Schieve v. IBM Corp., 157 A.D.2d 924 (3d Dep’t 1990) .................................................................. 33, 34 Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189 (1985) ........................................................................................... 26 Shin-Etsu Chem. Co. v. ICICI Bank, Ltd., 9 A.D.3d 171, 176 (1st Dep’t 2004) .................................................. 18, 19, 20, 21 Silver v. Great Am. Ins. Co., 29 N.Y.2d 356 (1972) ........................................................................................... 18 Smith v. Miller, 237 A.D.2d 294 (2d Dep’t 1997) ......................................................................... 30 Sosa v. Cumberland Swan, Inc., 210 A.D.2d 156 (1st Dep’t 1994) ......................................................................... 29 Taylor v. Interstate Motor Freight Sys., 309 N.Y. 633 (1956) ............................................................................................... 6 Tinicum Props. Assocs. Ltd. P’ship v. Garnett, Civ. A. No. 92-0860, 1992 WL 99590 (E.D. Pa. Apr. 29, 1992) ........................ 24 Waterways Ltd. v. Barclays Bank PLC, 174 A.D.2d 324 (1st Dep’t 1991) ......................................................................... 16 World Point Trading PTE v. Credito Italiano, 225 A.D.2d 153 (1st Dep’t 1996) ............................................................ 14, 22, 23 TABLE OF AUTHORITIES (continued) Page(s) vi Statutes 28 U.S.C. § 1782 ...................................................................................................... 24 CPLR 1007 ............................................................................................................... 32 CPLR 1008 ........................................................................................................ 30, 32 CPLR 1009 ............................................................................................................... 33 CPLR 2106 ................................................................................................................. 2 CPLR 5501(b) ............................................................................................................ 6 Other Authorities BLACK’S LAW DICTIONARY (9th ed. 2009) .............................................................. 17 Third-Party Defendant-Appellant Mr. Al-Sanea respectfully submits this reply brief in support of his appeal from the Appellate Division’s September 25, 2012 Decision and Order.1 PRELIMINARY STATEMENT This dispute arose overseas, yet Respondent AHAB will go to virtually any lengths to distort the pleadings and record in order to maintain its toehold in this jurisdiction—all in furtherance of a worldwide litigation campaign it has waged against Mr. Al-Sanea for the past several years. The arguments advanced in AHAB’s opposition brief to this Court are replete with self-serving reversals of position, disingenuous descriptions of both the proceedings below and the law that governs them, and calculated mischaracterizations of its own allegations—all in an effort to avoid a single, inescapable fact: that the claims AHAB pleaded against Mr. Al-Sanea are, on their own terms, centered in Saudi Arabia, not New York. Indeed, AHAB’s duplicitous and self-contradictory assertions now border on the absurd. AHAB admits, for example, that the existence of an available alternative forum is not a prerequisite to forum non conveniens dismissal, but it nonetheless contends that a defendant must prove that his proposed alternative is the “prefer[able]” forum in order to obtain dismissal. AHAB Br. at 38-39. Similarly, according to AHAB, the third-party complaint is both “limited” to a 1 Capitalized terms not defined herein are used as defined in Mr. Al-Sanea’s opening brief. 2 single transaction and alleges “far more elaborate structural misuse” of the New York banking system—which, itself, was just a “recent part” of a “more extensive fraud” involving overseas acts of alleged forgery of documents and concealment of facts from AHAB’s principals. Id. at 9, 36 n.3; R.105-107. AHAB also accuses Mr. Al-Sanea of somehow having improperly “recast[]” its allegations in order to portray them, falsely, as “concerning issues of authority centering in Saudi Arabia,” id. at 23, when AHAB’s own brief admits that the “scheme” it alleges is “based on a simple principle”: that Mr. Al-Sanea “misused” the “authority” AHAB conferred upon him “to enter into thousands of unauthorized financial transactions . . . in AHAB’s name,” id. at 10. And, according to AHAB, Mashreq somehow managed to be both a “victim[]” and an “aide[r] and abett[or]” of the alleged scheme—one who, curiously, was complicit in hiding the fraud from itself. Id. at 4, 15. That AHAB has resorted to such tactics is evidence enough that its arguments—and the divided Appellate Division decision they purport to defend— are untenable. This Court should reverse the Appellate Division’s fatally flawed decision and reinstate the trial court’s judgment of dismissal. Any honest assessment of the facts and allegations pertinent to this case compels dismissal on forum non conveniens grounds. Put simply, this case has no business being litigated in New York, just like many other cases with only tangential connections to this state that, even if “jurisdictionally sound, would be 3 better adjudicated elsewhere.” Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479 (1984). If affirmed, the Appellate Division’s sharply divided decision would substantially undermine this Court’s forum non conveniens precedents by effectively requiring adjudication in New York whenever jurisdiction is predicated on the ministerial involvement of New York’s banking system in an allegedly improper transaction, regardless of where the material facts at issue—such as the acts giving rise to the transaction—transpired. It would resuscitate the comparative forum analysis this Court expressly rejected in Pahlavi, by requiring defendants to prove not only that an alternative forum exists, but that the rules, processes, and procedures of that alternative forum make it the “preferable”— indeed, the best—forum in which to litigate the parties’ dispute. And the decision below would abdicate a signification portion of trial courts’ gatekeeping function by requiring them to accept unquestioningly a plaintiff’s contentions regarding the supposed “center” of a dispute, the “issues” that “will predominate” during litigation, the witnesses and documents that are most important to the litigation, the time and place when “liability arose,” and other such mixed questions of law and fact that the court will need to resolve on the merits should it decide to retain jurisdiction. The Appellate Division’s decision was manifestly erroneous, and nothing in AHAB’s opposition papers can save it. 4 AHAB’s makeweight claims of unfair sua sponte action and an absence of appellate jurisdiction similarly depend on self-contradictory arguments and patent distortions of the procedural record in this case. Dissatisfied that Mr. Al-Sanea’s forum non conveniens motion was granted by the trial court as to the entire case, AHAB has feigned surprise at that result on appeal, claiming that the court improperly acted on its own to dismiss the first-party action—and without adequate warning to AHAB—even though Mr. Al-Sanea admittedly “invited” dismissal of the entire case, AHAB Br. at 58, and AHAB (as well as other parties) briefed the issue and addressed it at oral argument. Apparently realizing that the procedural record does not support its claim, AHAB has now reduced its argument to claiming that there is a pertinent distinction between having “moved” for relief, either “formally or informally,” and merely having “invited” a court to grant it. Id. at 20, 58. Indeed, AHAB doubles down on its campaign of misdirection before this Court, claiming that Mr. Al-Sanea lacks standing to appeal reinstatement of the first-party claims despite having argued below that the third-party claims could not be dismissed unless the first-party suit was dismissed as well. See AHAB App. Div. Br. at 18-22. Those assertions do not bear serious scrutiny. Properly analyzed, the forum non conveniens factors compelled dismissal of this case. The Appellate Division’s Decision and Order should be reversed and the trial court’s judgment of dismissal reinstated. 5 ARGUMENT AHAB persuaded the Appellate Division to reverse the trial court’s forum non conveniens dismissal below by successfully peddling gross distortions of the pleadings and motion record. Most obviously, it asserted that its allegations against Mr. Al-Sanea describe a dispute “centered” in New York, and it claimed to have been surprised by the forum non conveniens dismissal of Mashreq’s first- party action. Neither contention could be further from the truth. On their own terms, AHAB’s allegations plead a Saudi Arabian cause of action by a Saudi partnership against their Saudi employee involving ministerial funds transfers through New York banks. And AHAB’s own briefs in the trial court show that it not only understood forum non conveniens dismissal of Mashreq’s first-party claims to be at issue, but took more than one opportunity to argue against it. The Appellate Division was able to rule in AHAB’s favor only by propounding several clearly erroneous legal holdings that find no support in the law of forum non conveniens. It held itself constrained to accept as true AHAB’s argumentative characterization of where the allegations were “centered,” to deem that “centrality” the dispositive factor of its forum analysis simply because it supposedly implicated New York’s banking system, and to disregard the availability and interests of alternative fora in this dispute because those fora supposedly lack preferable rules, processes, and procedures. Although AHAB 6 claims the decision below “broke no new legal ground,” AHAB Br. at 3, the Appellate Division certified its decision for review as a “question of law,” R.1792- 93, and each of its legal errors—reviewed de novo—independently warrants correction, see CPLR 5501(b); Taylor v. Interstate Motor Freight Sys., 309 N.Y. 633, 636 (1956). Even so, the Appellate Division’s decision “otherwise merit[s] review by this Court,” AHAB Br. at 3—apart from its erroneous legal rulings—because dismissal on forum non conveniens grounds was the only reasonable disposition here, and “[t]he Appellate Division majority abused its discretion in finding that traditional forum non conveniens factors warranted denial of the motion,” Patriot Exploration, LLC v. Thompson & Knight LLP, 16 N.Y.3d 762, 763 (2011) (citing Pahlavi, 16 N.Y.2d at 478); see also, e.g., Martin v. Mieth, 35 N.Y.2d 414, 418 (1974) (reversing forum non conveniens decision and ordering dismissal). The Decision and Order therefore “should be reversed” for that reason as well. Patriot Exploration, 16 N.Y.3d at 763. I. AHAB MISCHARACTERIZES BOTH ITS OWN PLEADING AND THE MOTION RECORD IN AN ATTEMPT TO BOLSTER THE APPELLATE DIVISION’S FLAWED ANALYSIS AHAB’s opposition largely depends upon a pair of mistaken propositions: first, that the few allegations in its pleading that touch New York are more central to this dispute than the many other allegations implicating the interests of foreign 7 jurisdictions; and second, that the trial court was required to accept that proposition when ruling on Mr. Al-Sanea’s forum non conveniens motion. But only by ignoring the vast bulk of the allegations of its own pleading is AHAB able to contend that New York is “central[]” to its third-party claims. AHAB Br. at 5. Indeed, AHAB complains repeatedly of Mr. Al-Sanea’s supposed “mischaracterizations” of this dispute, id., yet its brief contains not even a single quotation from its own answer, counterclaims, or third-party complaint demonstrating the supposed New York centrality of its allegations. There can hardly be more damning evidence that AHAB has seized on an opportunistic recasting of its own allegations to portray this as a dispute over an alleged “theft in New York” when, in reality, AHAB has pleaded a worldwide fraud centered in the Middle East, with only a marginal New York connection. Even a brief review of the allegations actually pleaded in AHAB’s third- party complaint reveals that New York has only a tangential connection to this dispute—which, in turn, only underscores the wisdom of allowing trial courts to undertake an independent assessment of the significance of New York’s interest in a particular dispute. By AHAB’s own admission, the key components to Mr. Al- Sanea’s alleged misconduct were his efforts in Saudi Arabia to enter into “unauthorized transactions” in AHAB’s name, to “direct” AHAB’s Saudi employees to take “unauthorized” action and “conceal” the true facts from 8 AHAB’s Saudi principals, and to “misappropriate” the proceeds of those “unauthorized” transactions by, inter alia, transferring them to Awal Bank in Bahrain. R.104-07, R.115-20. These events took place (if at all) in Saudi Arabia and the United Arab Emirates, not in New York, and AHAB cites no allegation in its pleading to the contrary.2 Indeed, although AHAB insists that its claims do not “concern[] issues of authority centering in Saudi Arabia,” AHAB Br. at 23, it admits that the “scheme” it alleges is “based on [the] simple principle” that Mr. Al-Sanea “misused” the “authority” AHAB conferred upon him “to enter into thousands of unauthorized financial transactions . . . in AHAB’s name,” id. at 10. And it centrally alleges that he somehow “stole” AHAB’s money by transferring it between two accounts in AHAB’s name, R.113—raising clear issues of “authority centered in Saudi Arabia,” AHAB’s headquarters and jurisdiction of incorporation. Many of AHAB’s positions on the factors relevant to forum non conveniens hinge on this self-serving mischaracterization of the allegations in its third-party complaint. For example, the supposedly “key” documents that AHAB asserts are 2 AHAB attempts to avoid this fact by baldly contending that New York’s banks were a “critical” component of Mr. Al-Sanea’s alleged scheme, claiming now that it “could not [have been] carried out” without U.S. dollars or “through any other banking system.” AHAB Br. at 16. Of course, AHAB cites nothing whatsoever to support its ipse dixit assertions, and it alleged nothing of the kind below—nor could it have. The transactions alleged by AHAB merely require the use of two currencies that are “pegged” to a common benchmark, AHAB Br. at 13-15, and a host of other currencies (including Cayman or Bahamian dollars, Bahraini dinars, or UAE dirhams) could have been paired with the Saudi riyal to serve the same purpose here. 9 in New York, AHAB Br. at 20, have little relevance to the Saudi-centered scheme alleged in its pleading, see R.738-43 (AHAB list of documents). And Mr. Al- Sanea introduced extensive proof that the central witnesses to the dispute, as framed by the third-party complaint, are located principally in Saudi Arabia and the UAE. See R.1296-1304. Tellingly, AHAB does not contend that any of the “key” witnesses is in New York, and it admits that all but one are not even in the United States. AHAB Br. at 20, 42-43. Stripped of AHAB’s misleading rhetoric, the pleadings and record here reveal that AHAB’s claims invoke, at best, a tangential New York banking connection to an otherwise entirely foreign case that, even if “jurisdictionally sound,” surely “would be better adjudicated elsewhere.” Pahlavi, 62 N.Y.2d at 479. Under the Appellate Division’s rule, however, no court could reach such a conclusion so long as the case before it involved a New York banking transaction, because that mere fact supposedly implicates “just as much” of a supposedly “overriding and paramount” interest in the forum non conveniens context as it does in the contexts of “[personal] jurisdiction[], comity, and choice of law.” AHAB Br. at 27, 31 (internal quotation omitted). Indeed, the rule espoused by the Appellate Division, and advocated by AHAB, would foreclose forum non conveniens relief anytime a court concluded that New York’s supposedly “paramount” interest in such a case was sufficient to overcome a jurisdictional 10 objection, to warrant disregarding a foreign law under principles of comity, or to conclude that New York law applied to a case. Such a rule would leave virtually no room for this State’s courts to decline jurisdiction on convenience grounds in cases where, although jurisdiction might lie in New York, the balance of considerations bearing on the Pahlavi factors demonstrates that litigation here would unduly burden the New York courts. Indeed, the Appellate Division’s rule would preclude trial courts from even considering any foreign aspects of the dispute that the plaintiff unilaterally (and conveniently) declared to be non-“central” to its case. Such a regime would contravene this Court’s settled forum non conveniens precedents. II. THE APPELLATE DIVISION MISAPPLIED THIS COURT’S FORUM NON CONVENIENS CASE LAW A. The Appellate Division’s Forum Non Conveniens Analysis Was Infected by Several Fatal Legal Errors In conducting its forum non conveniens analysis, the Appellate Division committed three principal legal errors, each of which is sufficient to require reversal of the Decision and Order. First, it held that a dispute’s implication of New York banking interests is an “overriding and paramount” factor in the forum non conveniens analysis, requiring the denial of forum non conveniens dismissal in virtually all cases touching on this State’s financial system. AHAB Br. at 27, 31 (internal quotation omitted); R.1805-07 (internal quotation omitted). Second, it 11 held that forum non conveniens dismissal is inappropriate unless the defendant “identif[ies] an alternative forum” that not only “would have jurisdiction over the dispute as framed by the complaints” but also can “better adjudicate[]” it. R.1810 (internal quotation omitted). Third, it held that trial courts assessing forum non conveniens motions must accept as true a plaintiff’s contentions regarding the geographical “center” of the dispute, which “issues . . . will predominate” during litigation, when “liability arose,” and other such mixed questions of law and fact. AHAB Br. at 34-36, 49. None of those conclusions finds support in the law—let alone in AHAB’s brief, which seeks to defend them principally by denying their existence—and, thus, none justifies the Appellate Division’s ruling. 1. The Appellate Division Erroneously Held that New York’s Interest in Banking Disputes Is an “Overriding and Paramount” Factor in Forum Non Conveniens Analysis AHAB insists that the Appellate Division “did not announce any new, bright-line forum non conveniens rule” for disputes touching on New York’s banking system. AHAB Br. at 26. But AHAB admits that the Appellate Division found the New York courts’ supposed interest in policing the New York banking system here to be “just as much” of an “overriding and paramount” concern in the forum non conveniens context as in the contexts of “[personal] jurisdiction[], comity, and choice of law.” Id. at 27, 31 (internal quotation omitted); see also R.1805-07 (finding choice-of-law analysis in J. Zeevi & Sons v. Grindlays Bank 12 (Uganda), 37 N.Y.2d 220 (1975), to be determinative on the forum non conveniens issue in this case under the “‘overriding and paramount’” standard). It is difficult to imagine how holding one factor to be “overriding and paramount”—indeed, to be independently determinative of the issue in dispute—does not “announce a bright-line rule,” particularly when that holding concerns one component of an otherwise “flexible” analysis in which, as this Court has held, “[n]o one factor is controlling.” Pahlavi, 62 N.Y.2d at 479. Yet that is precisely what the Appellate Division did, and AHAB is able to cite no authority supporting it. Rather, all AHAB can do is cite authority for the proposition that New York’s banking interests are an “overriding and paramount” factor in other contexts—personal jurisdiction, choice of law, and comity—and then baldly assert, without authority, that the same interests “inform[] forum analysis just as much.”3 AHAB Br. at 31; see id. at 27-31. It cites Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc. 2d 182, 185 (Sup Ct. N.Y. Cnty. 1996), aff’d, 240 A.D.2d 253 (1st Dep’t 1997), for example, see AHAB Br. at 24-25, but bases its argument on a portion of the case that addresses personal jurisdiction, not forum non conveniens.4 3 While AHAB suggests that Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574 (1980), supports this view, AHAB Br. at 29-30, that case held only that a “factor” in one type of analysis can also be a “factor” in another, id. at 582—certainly not that dispositive factors must be dispositive across contexts, or even that factors should have the same weight in different doctrines. 4 Critically, the forum non conveniens ruling in Banco Nacional was based on a finding that New York was “the hub of defendant’s activities,” 169 Misc. 2d at 192, which AHAB’s own pleading shows is decidedly not the case here, see supra Part I. 13 This is the same tack the Appellate Division took, and it founders for the same reason—namely, that adopting it would conflate forum non conveniens analysis with a determination on personal jurisdiction or choice of law whenever New York’s banking interests are alleged to be implicated. This Court and others have repeatedly held that personal jurisdiction, choice of law, and comity are predicates to (or factors in) the forum non conveniens analysis, but decidedly do not alone suffice to determine whether a court should retain jurisdiction.5 New York banking contacts cannot be “just” as “overriding and paramount” in forum non conveniens analysis as they are in the personal-jurisdiction, choice of law, and comity contexts without making that “one factor . . . controlling”—a result this Court has expressly disavowed. Pahlavi, 62 N.Y.2d at 479. Indeed, as Mr. Al-Sanea observed in his opening brief, numerous cases have recognized that “this Court’s ‘paramount interest’ analysis ‘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.’” Al-Sanea Br. at 24 (quoting First Union Nat’l Bank v. Paribas, 135 F. Supp. 2d 443, 453 (S.D.N.Y. 2001)); accord, e.g., World Point Trading PTE v. Credito Italiano, 225 5 For that and other reasons, Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327 (2012), cited in AHAB Br. at 29-30, does not support AHAB’s position. Licci was a personal jurisdiction case, not a forum non conveniens case, that in any event concerned a bank’s alleged financing of terrorist activities through New York bank transfers. See id. at 334. 14 A.D.2d 153, 160 (1st Dep’t 1996). AHAB unsurprisingly cites no authority contesting that proposition. 2. The Appellate Division Erroneously Held that Forum Non Conveniens Relief Must Be Denied Unless the Defendant Demonstrates that There Is a “Better” Alternative Forum AHAB likewise insists that the Appellate Division did not “rule that identification of an available alternative forum is an absolute prerequisite” to forum non conveniens dismissal. AHAB Br. at 39. But the Appellate Division was clear in holding that “[t]he motion court erred” by “fail[ing] to identify an alternative forum that would have jurisdiction over the dispute as framed by the complaints.” R.1810. Indeed, the Appellate Division went significantly further, and AHAB contends that it was correct in holding that forum non conveniens dismissal is inappropriate unless a defendant shows that the “rules” applicable in an alternative forum offer litigation “processes and procedures” that are “better” than those available in New York. AHAB Br. at 39-40; see R.1810 (faulting the trial court for “fail[ing] to” determine “whether the dispute would be better adjudicated in [an] alternative forum” (internal quotation omitted)). That holding is flatly contrary to this Court’s case law. This Court held in Pahlavi that “the availability of an alternative forum” is “not . . . a precondition to dismissal” under the doctrine of forum non conveniens. Pahlavi, 62 N.Y.2d 481. “Nor should proof of the availability of another forum be 15 required . . . .” Id. And even if the absence of another alternative forum did compel denial of forum non conveniens dismissal in a given case, this Court concluded that “the burden of demonstrating that fact should fall on plaintiff.” Id. (emphasis added); see id. at 483 (“Plaintiff has failed to establish that no alternative forum exists . . . .” (emphasis added)). Pahlavi further acknowledged that “[t]he result may appear arbitrary to some,” but observed that “forum non conveniens dismissals are not the only instance in which New York courts decline to entertain jurisdiction even though no alternative forum may exist.” Id. Indeed, the Pahlavi Court expressly rejected the sort of comparative analysis upon which AHAB’s arguments—and the Appellate Division’s holding—are premised. Under New York law, forum non conveniens doctrine does not “furnish[] criteria for choice between [alternative fora].” Id. At 480 (citation omitted). And, contrary to the Appellate Division’s holding, it decidedly does not authorize the New York courts to search for the best forum in which the parties might resolve their dispute (let alone the forum deemed most advantageous to the claimant—which is what the Appellate Division appears to have been searching for). Rather, the doctrine’s aim is to dismiss cases in which the dispute’s “connection with this State” does not justify the “burdens” imposed on the parties, the witnesses, and the court by litigating here, and which are therefore “better 16 adjudicated elsewhere”—i.e., not in New York—“even though no alternative forum may exist.” Id. at 478, 481. AHAB and the Appellate Division would not only exhume the forum comparison analysis interred by this Court in Pahlavi, they would make it “[defendant’s] burden . . . to provide specific information showing why his alternative forum . . . should be preferred.” AHAB Br. at 38 (emphasis added) (internal quotation omitted); see also id. at 40; contra Pahlavi, 62 N.Y.2d at 480- 81. It was not the Appellate Division’s place to craft such an edict despite this Court’s settled authority to the contrary, and this Court should therefore now reaffirm the Pahlavi approach and reverse the Appellate Division’s ruling.6 6 The two decades-old lower-court cases AHAB cites in support of its position do not help it. See AHAB Br. at 40. The fact that “New York permits more liberal discovery,” Republic of Lebanon v. Sotheby’s, 167 A.D.2d 142, 145 (1st Dep’t 1990), cannot itself preclude forum non conveniens dismissal for the obvious reason that such a rule would extend to virtually every case involving litigation overseas, as virtually no other nation affords such broad discovery rights to litigants, cf. Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc. 2d 182, 192 (Sup. Ct. N.Y. Cnty. 1996). Other cases accordingly recognize that 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.” Globalvest Mgmt. Co. v. Citibank, NA., Index No. 603386/04, 2005 WL 1148687, at *9 (Sup. Ct. N.Y. Cnty. 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). Waterways Ltd. v. Barclays Bank PLC and Creditanstalt Investment Bank AG v. Chadbourne & Parke LLP, cited in AHAB Br. at 40, likewise provide no support for AHAB’s position; the plaintiffs in those cases argued that preferable New York discovery rules weighed against forum non conveniens dismissal, but (tellingly) the courts did not accept those arguments. See Waterways, 174 A.D.2d 324, 328 (1st Dep’t 1991); Creditanstalt, 4 Misc. 3d 481, 485 (Sup. Ct. N.Y. Cnty. 2004). 17 3. The Appellate Division Erroneously Held that the Trial Court Must Accept AHAB’s Argumentative Characterizations of Its Own Allegations Concerning Mixed Questions of Law and Fact Finally, AHAB insists that the Appellate Division was correct to accept as true its “allegations”—which, in reality, were nothing more than argumentative characterizations of its pleading—as to such mixed questions of law and fact as where this dispute is “centered,” which “issues . . . will predominate” during litigation, when “liability arose,” and “the strength of [this case’s] connection to New York.” AHAB Br. at 34-36; see also id. at 49 (arguing that the Appellate Division was required to credit AHAB’s “allegations” that the “last event necessary to Al Sanea’s liability . . . occurred in New York” and that New York was “central[]” to the alleged fraud). These are not “allegations” at all; they are arguments about the correct application of forum non conveniens law to the facts of this case. See BLACK’S LAW DICTIONARY (9th ed. 2009) (“allegation” is “a party’s formal statement of a factual matter as being true or provable” (emphasis added)). In any event, AHAB cites no authority requiring the trial court to have accepted them unquestioningly; indeed, it admits that courts must “construe the operative claims and not just accept plaintiff ’s characterization of them,” AHAB Br. at 32 n.2—and for good reason, because adopting a contrary rule would hamstring courts when conducting the forum non conveniens analysis this Court has prescribed, and would permit plaintiffs to “game” that analysis just as AHAB 18 managed to do before the Appellate Division. It is black-letter law that “‘allegations consisting of bare legal conclusions . . . are not entitled to [a presumption of truth],’”—a proposition AHAB cannot dispute. Al-Sanea Br. at 39 n.14 (quoting Kliebert v. McKoan, 228 A.D.2d 232, 232 (1st Dep’t 1996)). Tellingly, AHAB cites no New York authority even for the threshold proposition that courts must credit allegations at all on a forum non conveniens motion—let alone “allegations” as to mixed questions of law and fact. Indeed, AHAB concedes that Ehrlich-Bober & Co. v. University of Houston, which was the Appellate Division’s sole authority, concerned “the comity setting,” not forum non conveniens. AHAB Br. at 34. But this Court need not go that far to find legal fault with the Appellate Division’s decision. AHAB’s contention, adopted by the Appellate Division, that the trial court was required simply to accept AHAB’s characterization of “the strength of [this case’s] connection to New York,” AHAB Br. at 35, borders on the absurd. The “‘substantial[ity]’” of a case’s “‘nexus with New York’” is one of the factors trial courts are required to evaluate when ruling on forum non conveniens motions. Shin-Etsu Chem. Co. v. ICICI Bank, Ltd., 9 A.D.3d 171, 176 (1st Dep’t 2004) (quoting Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361 (1972)). To require the courts unquestioningly to adopt plaintiffs’ evaluations of that factor instead—as the Appellate Division’s decision does— would abdicate a significant part of the courts’ gatekeeping function, and invite 19 gamesmanship of the very sort AHAB has engaged in here. No salutary effect is achieved by such a rule, and it is unsurprising that neither AHAB nor the Appellate Division has been able to cite any authority even remotely supporting it.7 B. Properly Analyzed, the Relevant Forum Non Conveniens Factors Point Uniformly to Dismissal 1. Saudi Arabia and the UAE Are Available Alternative Fora AHAB does not dispute that both Saudi Arabia and the UAE “‘permit litigation of the subject matter of the dispute,’” or that Mr. Al-Sanea and Mashreq are “‘amenable to process’” there. Al-Sanea Br. at 46 (quoting Shin-Etsu, 9 A.D.3d at 178-79). Indeed, AHAB now abandons its position below, along with the Appellate Division’s ruling, by allowing that either forum is a viable alternative even if the entire dispute—first- and third-party actions—cannot be litigated there. See R.1810. Instead, AHAB now erroneously argues that neither forum qualifies as an “available” alternative unless Mr. Al-Sanea can show that it has “rules,” “processes[,] and procedures” that make it the “prefer[able]” location for “adjudicat[ing] this particular international dispute.” AHAB Br. at 39-40. That is not the law, see supra Part II.A.2, and the cases AHAB cites make clear that it has 7 AHAB now admits that “it is the trial court’s obligation to construe the operative claims and not just accept plaintiff’s characterization of them”—while at the same time contending that “the issues are determined by plaintiff’s actual claims and not just defendant’s mischaracterization of them.” AHAB Br. at 32 n.7 (citing Overseas Programming Co. v. Cinematographische Commerz-Anstalt, 684 F.2d 232, 235 n.7 (2d Cir. 1982)). Whatever AHAB means by this distinction, it is clear it cannot dispute that a trial court must evaluate and characterize the allegations itself—taking into account each party’s arguments on that point—when ruling on forum non conveniens. 20 asserted no basis for deeming Saudi Arabia or the UAE “unavailab[le],” Pahlavi, 62 N.Y.2d at 479. In Shin-Etsu Chemical Co., for example, the case on which AHAB principally relies, see AHAB Br. at 39-40, the Appellate Division concluded that India was an adequate forum because the defendant “c[ould] be sued in India and . . . its courts permit litigation of [the subject matter of the dispute],” even though it might take ten years or more for the case to be tried. 9 A.D.3d at 178-79 & n.1. The court then ordered the case dismissed on forum non conveniens grounds after noting that the New York courts do not “require an alternative forum for forum non conveniens dismissal” anyway. Id. at 179. This hardly supports AHAB’s claim that forum non conveniens analysis requires a “nuanced determination” of which forum (New York or an alternative) is “prefer[able]” upon “examination of the processes and procedures of the proposed alternative forum,” AHAB Br. at 38, 40—and neither do the other lower court cases AHAB cites, see supra Part II.A.2. 2. Saudi Arabia Has a Keen Interest in This Dispute AHAB similarly does not dispute that Saudi Arabia has a “‘keen[] interest[] in governing the affairs of its financial institutions,’” Al-Sanea Br. at 49 (quoting Shin-Etsu, 9 A.D.3d at 178), that consideration of such interests amounts to a powerful factor in the forum non conveniens analysis, id. at 50-51, or that the Appellate Division wholly ignored it below, id. at 50-52. Instead, AHAB 21 misleadingly suggests that the Saudi government somehow disavowed interest in the dispute between AHAB and Mr. Al-Sanea by forming a committee to resolve AHAB’s affairs with Saudi banks. Id. at 51. Nothing could be further from the truth. Part of the Committee’s remit was the dispute between AHAB and Mr. Al- Sanea, R.620-21, and AHAB does not dispute that the committee was willing to adjudicate AHAB’s claims against MAS concerning his supposed misconduct in their name. Moreover, the fact that the Saudi government created a special judicial process to resolve AHAB’s claims against Mr. Al-Sanea relating to debts asserted by Saudi banks does not even begin to suggest that it has “eschewed” any interest in other aspects of AHAB’s dispute against Mr. Al-Sanea (which readily could be resolved in other proceedings before the appropriate Saudi authorities). AHAB Br. at 51. Surely, a “dispute[] between Saudi citizens,” id. at 51, concerning the multi- billion dollar borrowings of one of Saudi Arabia’s most significant business institutions qualifies as a dispute in which Saudi Arabia “has a substantial interest . . . weighing in favor of dismissal.” Shin-Etsu, 9 A.D.3d at 178. 3. Allowing This Case to Proceed Would Unjustifiably Multiply Proceedings and Risk Conflicting Rulings AHAB also does not dispute that its many “litigation efforts in other jurisdictions around the world” involve “‘duplication of effort’” and “‘the attendant risk that conflicting rulings might be issued by courts of two jurisdictions,’” or that this is “‘a powerful factor favoring dismissal.’” Al-Sanea 22 Br. at 22-23 (quoting World Point Trading, 225 A.D.2d at 161). Indeed, AHAB concedes that its suit here “seeks recovery only in respect of . . . one aspect of th[e alleged] fraud” and is just “one of” the “numerous more discrete actions in other fora” that “AHAB also has brought” while at the same time “initiat[ing]” and litigating “a comprehensive action in the Cayman Islands against Al Sanea.” AHAB Br. at 4, 12. Nor does AHAB even attempt to dispute the fact that the very claims it asserts against Mr. Al-Sanea here are also asserted in its action against him in the Cayman Islands. R.261-68. Yet AHAB would have this State’s courts expend their scarce judicial resources just to adjudicate a duplicative lawsuit asserting the very same allegations in yet another judicial forum. There could hardly be a clearer risk of “duplication of effort” and “conflicting rulings,” which “powerful[ly] . . . favor[] dismissal.” World Point Trading, 225 A.D.2d at 161; Alberta & Orient Glycol Co. v. Factory Mut. Ins. Co., Index No. 603150/2005, 2007 WL 6881693, at *12 (Sup. Ct. N.Y. Cnty. Apr. 24, 2007). 4. Dismissal Would Serve the Convenience of the Parties and Witnesses AHAB admits that none of the “key” witnesses is in New York; indeed, it admits that all but one of them are not even in the United States. AHAB Br. at 20, 42-43. It further concedes that many these “key” witnesses are not “subject to giving evidence in a U.S. action through the Hague Evidence Convention.” Id. at 23 43-44. And it concedes that Mr. Al-Sanea “is currently under travel restrictions in Saudi Arabia,”8 id. at 43—as are virtually all of AHAB’s principals, R.622. It is difficult to imagine how these undisputed facts could be construed as demonstrating the “availability of witnesses” in New York. World Point Trading, 225 A.D.2d at 161. Instead, AHAB concentrates on advancing the false assertion that, in Saudi Arabia, “the parties themselves and their employees and agents are not deemed to be competent to testify as witnesses on their own (or their principal’s) behalf.” AHAB Br. at 45. In reality, not even AHAB’s own Saudi law expert has ever said as much. He conceded that the Saudi rule cited by AHAB merely requires “corroboration” of potentially conflicted testimony offered by parties with an interest in the action. R.952; see also R.1104-05 (discussing Saudi rules regarding competence to testify). There simply is no evidence showing that party witnesses would be barred from giving testimony. But, in any event, AHAB’s contention is largely beside the point. The issue is whether witnesses are “availab[le]” in New York, not whether there is some “prefer[able]” forum somewhere else.9 New York law does not require proof of any alternative forum, 8 Although AHAB contends—without citation to record support—that Mr. Al-Sanea “is a fluent English speaker,” AHAB Br. at 43, he himself stated under oath that, “while [he] speak[s] English on a conversational basis, [he] would not feel comfortable testifying in English,” R.1296. 9 In fact, 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 here. 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. 24 let alone an alternative forum that has “prefer[able]” evidentiary rules. And AHAB cites no authority from this Court requiring any such proof.10 If anything, AHAB’s opposition brief only confirms that it has no basis to argue that the bulk of the witnesses to this dispute are “available” to testify in New York. Like the Appellate Division did, AHAB harps that Mr. Al-Sanea did not “identify non-party witnesses” with “relevant testimony” until he filed his reply brief. AHAB Br. at 44; see id. at 42. But AHAB cites nothing to support the implication that this was improper, nor does it claim to have been in any way prejudiced. And AHAB can dismiss the significance of these “non-party witnesses” only by baldly asserting—based on nothing but its own say-so—that they are “irrelevant or peripheral.” Id. at 44. In reality, as Mr. Al-Sanea demonstrated below, they are the very employees of AHAB, Mashreq, and Mr. Al-Sanea who would have been involved in the allegedly fraudulent activities and other conduct that form the basis of AHAB’s Corp., 81 F.3d 287, 294-95 (2d Cir. 1996); Howard v. Four Seasons Hotels Ltd., No. 96 Civ. 4587, 1997 WL 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. See Tinicum Props. Assocs. Ltd. P’ship v. Garnett, Civ. A. No. 92-0860, 1992 WL 99590, at *1 (E.D. Pa. Apr. 29, 1992). In contrast, Saudi Arabia, Bahrain, and the UAE are parties to a Gulf Cooperation Council agreement concerning cross-border judicial assistance. R.951. 10 The “relevant documents” AHAB claims are “in New York,” AHAB Br. at 47, are just ministerial bank records that, in any event, have already been made available to AHAB in an action it previously commenced in federal court pursuant to 28 U.S.C. § 1782, ostensibly to obtain discovery in aid of its Cayman and Saudi legal proceedings. See Ahmad Hamad Algosaibi & Bros. Co. v. Standard Chartered Int’l (USA) Ltd., No. 10 Civ. 8080, 2011 WL 1900695, at *5 (S.D.N.Y. May 20, 2011). Otherwise, AHAB does not dispute that “many relevant documents” are “located in Saudi Arabia . . . and the UAE.” AHAB Br. at 47. 25 claims—and, thus, surely constitute relevant key witnesses. See R.1296-1303. For example, AHAB centrally alleges that Mr. Al-Sanea entered into “unauthorized transactions” in AHAB’s name, e.g., R.106, and he offered evidence that many—if not most—of the witnesses to his relevant “authority” reside in Saudi Arabia or elsewhere in the Middle East. See R.1296-1301. Moreover, AHAB importantly alleges that Mr. Al-Sanea “direct[ed]” AHAB’s Saudi employees to take “unauthorized” action and “conceal” the true facts from AHAB’s Saudi principals. R.106-07. And those employees also are (unsurprisingly) in Saudi Arabia. R.1299-1301. AHAB’s own allegations thus show that these potentially witnesses are neither “irrelevant” nor “peripheral” to its claims. 5. This Case Would Require the New York Courts to Apply the Law of Saudi Arabia and the UAE AHAB falsely asserts that “the Appellate Division dissenters did not take issue with the majority’s conclusion that New York law would apply to this dispute.” AHAB Br. at 49. The dissenters below were explicit in their opinion that “resolution [of this dispute] likely requires the application of foreign law.” R.1822. And, to dispute that opinion, AHAB offers nothing more than its own ipse dixit assertion that the “last event necessary to Al Sanea’s liability . . . occurred in New York”—an “allegation” that this Court supposedly must accept as true. AHAB Br. at 49. The law is otherwise. See supra Part II.A.3. Although AHAB now raises the possibility that there might not be any “meaningful conflict between 26 the laws of New York and the laws of Saudi Arabia, the UAE, or any other candidate forum,” AHAB Br. at 49, it waived that contention by failing to raise it before the Appellate Division, see AHAB App. Div. Br. at 43; AHAB App. Div. Reply Br. at 16. Indeed, it asserted precisely the opposite below, conceding that foreign law applies to at least some issues in this case, R.214; R.237; see also R.984-86, and it should not be heard so conveniently to reverse its position now. Despite AHAB’s unsupported assertions to the contrary, “the ‘mere likelihood that foreign law will apply weighs in favor of dismissal.’” Al-Sanea Br. at 58 (quoting 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)). AHAB cites nothing to counter that legal principle; rather, it tries to avoid it by claiming that New York law unquestionably would apply here under a so-called “last act” analysis. But, tellingly, AHAB cites no case applying such an analysis in the context of fraud and commercial litigation matters such as the dispute at issue here. See AHAB Br. at 48-49 (citing Edwards v. Erie Coach Lines Co., 17 N.Y.3d 306 (2011) (wrongful death and personal injury); Padula v. Lilarn Props. Corp., 84 N.Y.2d 519 (1994) (personal injury); Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189 (1985) (wrongful death and personal injury); Banco Nacional Ultramarino, 169 Misc. 2d 182 (ruling on personal jurisdiction, not choice of law)). Tellingly, AHAB does not even attempt to distinguish the cases cited in Mr. Al-Sanea’s 27 opening brief, which confirm that choice of law is determined by identifying the jurisdiction that has the greatest interest in the specific issues raised in the litigation—here, Saudi Arabia. See Al-Sanea Br. at 58-62 (citing, inter alia, Atsco Ltd. v. Swanson, 29 A.D.3d 465, 465-66 (1st Dep’t 2006)). 6. None of the Parties Resides in New York “Where no party to a dispute resides in New York, the balance powerfully favors dismissal.” Al-Sanea Br. at 62 (citing Pahlavi, 62 N.Y.2d at 479, and Nguyen v. Banque Indosuez, 19 A.D.3d 292, 294-95 (1st Dep’t 2005)). AHAB does not dispute this fact, or that the Appellate Division “inexplicably disregarded” it below. Id. at 63. III. THE TRIAL COURT PROPERLY DISMISSED THE FIRST-PARTY ACTION AHAB also resorts to revisionist history and procedural gamesmanship in arguing that the trial court undertook some sort of improper sua sponte action below. Contending that dismissal of the first-party action was a surprise ruling by the trial court, AHAB disingenuously claims that “no party ever requested, by formal motion or otherwise, that Supreme Court dismiss the first-party claims on forum grounds,” and that “AHAB was never faced with a brief from either Mashreq or Al Sanea that advocated a dismissal of the entire action.” AHAB Br. at 55, 61. These assertions are not only astonishing, but also patently false. 28 Mr. Al-Sanea moved for forum non conveniens dismissal on October 30, 2009, requesting dismissal of the third-party claims and “such other and further relief as the Court deems just and proper.” R.65-66. Before responsive briefing commenced, during a hearing before the court concerning other motion practice, Mr. Al-Sanea then—as AHAB concedes—“invited” the trial court to “dismiss the entire action.”11 AHAB Br. at 58. AHAB argued at length in the briefs that followed that the first-party action should not be dismissed on forum non conveniens grounds, contending, for example, that “New York is the proper forum for all aspects of this dispute,” and that “[t]he critical transaction on which Mashreq’s breach of contract claim and AHAB’s tort claim depend is the transfer of $150 million to a Bank of America account in New York nominally belonging to AHAB.” Trial Ct. Dkt. No. 112 at 2 (emphasis added). And Mr. Al-Sanea, in turn, argued that: Mashreq’s action itself could be litigated in more convenient fora, such as Saudi Arabia or the U.A.E. and, thus, should be dismissed. Mashreq is suing both AHAB and Mr. Al-Sanea in the U.A.E., where it asserts duplicative claims against AHAB that concern the very $150 million debt at issue here. AHAB resists dismissal by claiming that “there is no assurance that Saudi Arabia 11 AHAB’s assertion that the hearing happened “after the briefing was closed” on Mr. Al- Sanea’s forum non conveniens motion, AHAB Br. at 56, is false. The hearing was scheduled to hear argument on a protective-order motion and was held before AHAB even submitted its opposition to Mr. Al-Sanea’s forum non conveniens motion. See Trial Ct. Dkt. No. 82 (AHAB’s first forum non conveniens brief, filed on February 5, 2010, a month after the January 5, 2010 hearing). 29 can acquire jurisdiction over Mashreq,” but it does not even acknowledge the existence of Mashreq’s duplicative litigation in the UAE. Nor does it acknowledge that Saudi courts “shall have jurisdiction over cases filed against an alien who has no place of residence in the Kingdom if the lawsuit involves an obligation” that “originated or is enforceable in the Kingdom,” or if “the lawsuit is against more than one person and one of them has a place of residence in the Kingdom.” Trial Ct. Dkt. No. 105, at 8 (brackets, ellipses, citations, and some internal quotations omitted). For AHAB to claim otherwise now is wholly disingenuous. Indeed, AHAB even conceded as much in its prior filings to this Court, noting that Mr. Al-Sanea argued that “Mashreq’s claim could be litigated in ‘more convenient fora . . . and thus, should be dismissed.’” April 26, 2013 Letter Opp. to Al-Sanea at 6 (quoting Trial Ct. Dkt. No. 105 at 8). And when oral argument was held on the forum non conveniens motion, AHAB acknowledged the “two parts” of Mr. Al-Sanea’s application, and argued against dismissal both “as to everybody” and as to Mr. Al-Sanea alone. R.1473-74; see Al-Sanea Br. at 65-66. At no point did AHAB object that dismissal “as to everybody” had not been properly raised, and it cannot be heard to say so now. See, e.g., Sosa v. Cumberland Swan, Inc., 210 A.D.2d 156, 157 (1st Dep’t 1994) (party waives objection by not raising it in trial court). AHAB offers nothing to explain why that argument was not waived by its own prior silence on the issue. 30 Moreover, Mr. Al-Sanea unquestionably was authorized to propose dismissal of the entire action—as his counsel did in open court. See CPLR 1008; Imperial Imps. Co. v. Hugo Neu & Sons, 161 A.D.2d 411, 412 (1st Dep’t 1990). AHAB is forced to concede that he was empowered to do so. See AHAB Br. at 59 (citing Imperial Imps., 161 A.D.2d 411). Its only answer to the procedural record is to pretend that there is some difference between having “invited [a court] to act” and having “moved” for relief—although it unsurprisingly cites no authority for that strained contention. AHAB Br. at 58. AHAB even admits that Smith v. Miller, 237 A.D.2d 294 (2d Dep’t 1997), allows forum non conveniens dismissal so long as “‘the doctrine was raised before the court, and the parties contested the matter.’” AHAB Br. at 59 (quoting Smith, 237 A.D.2d at 295). It is difficult to envision how “inviting Supreme Court” to “dismiss the entire action,” AHAB Br. at 58, does not constitute “rais[ing] [the doctrine] before the court,” Smith, 237 A.D.2d at 295. That Mashreq may not also have moved for dismissal of its own claims, AHAB Br. at 57, simply has no bearing on whether dismissal of the first- party suit was properly before the court on Mr. Al-Sanea’s motion, and AHAB’s wholly unsupported suggestion to the contrary is nothing more than a red herring. Perhaps most importantly, the trial court’s decision to dismiss the entire case, even if technically improper—which it was not—would at most rise to the level of harmless error, which could not justify disturbing the forum non 31 conveniens dismissal on appeal. See Al-Sanea Br. at 68-69. AHAB does not dispute this point, and the Appellate Division’s ruling should therefore be reversed. IV. MR. AL-SANEA HAS STANDING TO RAISE ALL THE ISSUES IN THIS APPEAL AHAB’s eleventh-hour attempt to challenge Mr. Al-Sanea’s appellate standing—which it never bothered to raise in opposing his motion for leave to appeal—is unfounded lawyer makeweight that this Court should summarily disregard (assuming it has not already done so12). AHAB disingenuously argues that Mr. Al-Sanea “had no interest in,” and is not “aggrieved” by the “disposition of[, the first-party] claims,” and therefore that he has no standing to appeal from that disposition, AHAB Br. at 20, 53, even though it argued precisely the opposite below: that dismissal of the claims against Mr. Al-Sanea depends on “disposition of [the first-party action],” id.; see AHAB App. Div. Br. at 21-22. AHAB’s gamesmanship should be rejected for multiple reasons. First, AHAB claims that Mr. Al-Sanea is not aggrieved by reinstatement of the first-party claims because he “is not a party to the first-party claims,” AHAB 12 AHAB already raised all of its standing arguments in connection with a jurisdictional inquiry by the Clerk’s office, and the Clerk was not persuaded to act on any of them. See Letter from Court of Appeals to Parties dated Jan. 25, 2013 (initiating inquiry); Letter from Court of Appeals to Parties dated Mar. 12, 2013 (terminating inquiry). Nor was this Court persuaded to act on any of AHAB’s standing arguments when AHAB continued to press them in its letter briefing pursuant to Court of Appeals Rule 500.11. Both Mr. Al-Sanea and Mashreqbank clearly have standing for all of the reasons stated in the parties’ jurisdictional letters and their letter submissions pursuant to Rule 500.11, which Mr. Al-Sanea incorporates by reference herein. See Letter from Mashreqbank to Court of Appeals dated Jan. 31, 2013; Letter from Maan Abdul Wahed Al-Sanea to Court of Appeals dated Feb. 15, 2013. 32 Br. at 53, but that contention is refuted by the plain language of the CPLR, which provides that a “third-party defendant shall have the rights of a party adverse to the other parties in the action, including the right to counter-claim, cross-claim and appeal.” CPLR 1008. Indeed, the first- and third-party proceedings are not even separate “actions,” as AHAB assumes; rather, “it has been held that the third-party proceeding ‘is not separate’ from the plaintiff’s original action.” Reese v. Harper Surface Finishing Sys., 129 A.D.2d 159, 164 (2d Dep’t 1987) (quoting Rogowski v. Royce W. Day Co., 130 Misc. 2d 801, 802 (Sup. Ct. Albany Cnty. 1986)). Second, AHAB baldly—and falsely—argues that Mr. Al-Sanea could not be “aggrieved” by the “disposition of [the first-party] claims.” AHAB Br. at 53. That assertion is inconsistent with both the facts of this case and the very nature of third- party practice—the sine qua non of which is a claim by a defendant against “a person not a party who is or may be liable to that defendant for all or part of the plaintiff’s claim against that defendant.”13 CPLR 1007 (emphasis added). “[T]he liability sought to be imposed upon a third-party defendant must arise from or be conditioned upon the liability asserted against the third-party plaintiff in the main action.” BBIG Realty Corp. v. Ginsberg, 111 A.D.2d 91, 93 (1st Dep’t 1985) (emphasis added). Thus, the dismissal or reinstatement of the first-party claims in 13 Indeed, AHAB’s claims against Mr. Al-Sanea seek only recovery of “the full amount of any judgment entered against AHAB, [plus] any and all fees and costs incurred by AHAB in its defense of Plaintiffs claims against it” (and, on some claims, punitive damages). R.116-120. 33 this case necessarily impacts Mr. Al-Sanea’s interests, because his potential liability to AHAB as a third-party defendant is premised on the notion that AHAB may be held liable on Mashreq’s first-party claims. In fact, courts routinely hold that third-party claims should be dismissed after a plaintiff’s first-party claims are defeated. See, e.g., Langan v. Cabela, 289 A.D.2d 377, 378 (2d Dep’t 2001); DeLuca v. Lett, 173 A.D.2d 760, 762-63 (2d Dep’t 1991). AHAB cites to Duffy v. Horton Memorial Hospital, 66 N.Y.2d 473 (1985), but that case provides no support for its argument. The Duffy Court found that a defendant/third-party plaintiff lacked standing as an aggrieved party to appeal from the dismissal of a claim that the plaintiff had asserted directly against the third- party defendant (pursuant to CPLR 1009). Id. at 475 & nn.2-3. That circumstance—which involved a claim between the plaintiff and the third-party defendant that could not possibly affect the rights of the defendant/third-party plaintiff—differs starkly from cases such as this, in which a third-party defendant seeks to appeal from a ruling on the first-party claim that is the very source of his potential liability to the defendant/third-party plaintiff sounding in indemnity. For that reason, the court in Schieve v. IBM Corp., 157 A.D.2d 924, 925-26 (3d Dep’t 1990), rejected the precise argument AHAB advances here by reference to Duffy. Citing Duffy, the plaintiff in Schieve challenged a third-party defendant’s standing to appeal a summary judgment ruling in the first-party proceedings 34 because “summary judgment was not granted against [the third-party defendant] and the validity of the third-party complaint [wa]s not at issue,” but the court held that the third-party defendant faced indemnity claims arising out of the defendant’s potential liability to the plaintiff and, therefore, was “vitally concerned with any finding of liability against [the defendant/third-party plaintiff].” Id. The same is true here, and Mr. Al-Sanea is equally aggrieved by the Appellate Division’s reinstatement of the first-party claims in this case. Third, and perhaps most importantly, AHAB’s argument on appellate standing contradicts the very positions AHAB itself has taken on the merits of these appeals. AHAB argued below that the third-party complaint could not be dismissed because (1) the trial court’s dismissal of the first-party proceedings supposedly was an improper sua sponte act, and (2) the third-party complaint is “inseparably connected” to the first-party claims and cannot be severed from them and litigated separately. AHAB App. Div. Br. at 18-22; Trial Ct. Dkt. No. 112 (AHAB Response) at 3-4. In other words, AHAB argued that Mr. Al-Sanea could not possibly be entitled to forum non conveniens dismissal of the third-party complaint unless he also obtained dismissal of the first-party claims. Yet now, in contradiction, AHAB claims that Mr. Al-Sanea is not “aggrieved” by the “disposition of [the first-party] claims,” AHAB Br. at 53—and, thus, that he supposedly cannot seek dismissal of it. This blatant procedural gamesmanship by 35 AHAB, designed to foreclose any review of the merits of Mr. Al-Sanea’s appeal, should summarily be rejected. If, as AHAB has argued, Mr. Al-Sanea cannot obtain dismissal of the third-party complaint without also securing dismissal of the first-party proceedings, then undoubtedly he is aggrieved by the Appellate Division’s ruling reinstating the first-party proceedings. V. ALTERNATIVELY, THE APPELLATE DIVISION SHOULD HAVE AFFIRMED DISMISSAL OF THE THIRD-PARTY CASE AGAINST MR. AL-SANEA FOR LACK OF PERSONAL JURISDICTION The trial court lacked personal jurisdiction over Mr. Al-Sanea, and dismissal of the third-party claims should have been affirmed on that basis as well. J. Zeevi, 37 N.Y.2d 220, the only case AHAB cites to support its contrary position, AHAB Br. at 63, is inapposite. There, “New York was the locus of repudiation, whereas it should have been a site of payment.” J. Zeevi, 37 N.Y.2d at 226. Here, the alleged “locus of repudiation” was Bahrain, where Awal Bank allegedly refused AHAB’s request to withdraw funds that had been credited to its account. R.164. CONCLUSION For all of these reasons, as well as those set out in Mr. AI-Sanea's opening brief (and in the briefs submitted by Mashreq), Mr. AI-Sanea respectfully requests that this Court reverse the decision of the Appellate Division, remand this action with instructions to reinstate the judgment rendered by the trial court below or, in the alternative, with instructions to enter a judgment dismissing the third-party complaint, and award such other relief as the Court deems just and proper. Dated: New York, New York September 30, 2013 Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP By: ~~1rif' ~oj~ rserio@gibsondunn.com Gabriel Herrmann gherrmann@gibsondunn.com Christopher Muller cmuller@gibsondunn.com 200 Park Avenue New York, New York 10166 Tel.: (212) 351-4000 Fax: (212) 351-4035 Attorneys for Third-Party Defendant- Appellant Maan Abdul Wahed AI-Sanea 36 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: Times New Roman, a proportionally spaced typeface 14, except footnotes which are 12 point Double, in accordance with Rule 500.1(!) 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 9,209 words. Dated: New York, New York September 30, 2013 Respectfully submitted, TCHERLLP rserio@gibs ndunn.com Gabriel He ann gherrmann@gibsondunn.com Christopher Muller cmuller@gibsondunn.com 200 Park Avenue New York, New York 10166 Tel.: (212) 351-4000 Fax: (212) 351-4035 Attorneys for Third-Party Defendant- Appellant Maan Abdul Wahed Al-Sanea AFFIRMATION OF SERVICE GABRIEL HERRMANN, 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, (212) 351-4000, gherrmann@gibsondunn.com, Attorneys for Third-Party Defendant-Appellant Maan Abdul Wahed AI-Sanea. I am not a party to this proceeding and I am over 18 years of age. 2. On the 30th day of September, 2013, I caused three (3) true and correct copies of the Reply Brief of Third-Party Defendant-Appellant Maan Abdul Wahed AI-Sanea, with Printing Specifications Statement, to be served by overnight delivery upon each of the following counsel of record: Carmine D. Boccuzzi, Jr. CLEARY GOTILIEB STEEN & HAMILTON One Liberty Plaza New York, New York 10006 Counsel for Plaintiff-Appellant Mashreqbank PSC Bruce R. Grace LEWIS BAACH PLLC 1899 Pennsylvania Avenue, NW, Suite 1600 Washington, D.C. 20006 Counsel for Defendant-Third-Party-Plaintiff-Appellee Ahmed Hamad Al Gosaibi & Brothers Company David J. Molton BROWN RUDNICK LLP Seven Times Square New York, New York 10036 Dated: Counsel for Third-Party Defendant Awal Bank BSC New York, New York September 30,2013