BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, New ...

10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document 

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BAKER & HOSTETLER LLP 

45 Rockefeller Plaza 

New York, New York 10111 

Telephone: (212) 589-4200 

Facsimile: (212) 589-4201 

Attorneys for Irving H. Picard, Trustee 

for the Substantively Consolidated SIPA Liquidation 

of Bernard L. Madoff Investment Securities LLC 

and the Estate of Bernard L. Madoff 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF NEW YORK 

SECURITIES INVESTOR PROTECTION 

CORPORATION, 

v. 

Plaintiff-Applicant, 

BERNARD L. MADOFF INVESTMENT SECURITIES 

LLC, 

In re: 

BERNARD L. MADOFF, 

Defendant. 

Debtor. 

IRVING H. PICARD, Trustee for the Liquidation of 

Bernard L. Madoff Investment Securities LLC, 

v. 

Plaintiff, 

UBS AG, UBS (LUXEMBOURG) SA, UBS FUND 

SERVICES (LUXEMBOURG) SA, UBS THIRD PARTY 

MANAGEMENT COMPANY SA, ACCESS 

INTERNATIONAL ADVISORS LLC, ACCESS 

INTERNATIONAL ADVISORS EUROPE LIMITED, 

ACCESS INTERNATIONAL ADVISORS LTD., 

ACCESS PARTNERS (SUISSE) SA, ACCESS 

MANAGEMENT LUXEMBOURG SA (f/k/a ACCESS 

INTERNATIONAL ADVISORS (LUXEMBOURG) SA) 

as represented by its Liquidator MAITRE FERNAND 

Adv. Pro. No. 08-01789 (BRL) 

SIPA LIQUIDATION 

(Substantively Consolidated) 

Adv. Pro. No. 10-04285 (BRL)


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ENTRINGER, ACCESS PARTNERS SA as represented 

by its Liquidator MAITRE FERNAND ENTRINGER, 

PATRICK LITTAYE, CLAUDINE MAGON DE LA 

VILLEHUCHET (a/k/a CLAUDINE DE LA 

VILLEHUCHET) in her capacity as Executrix under the 

Will of THIERRY MAGON DE LA VILLEHUCHET 

(a/k/a RENE THIERRY DE LA VILLEHUCHET), 

CLAUDINE MAGON DE LA VILLEHUCHET (a/k/a 

CLAUDINE DE LA VILLEHUCHET) individually as the 

sole beneficiary under the Will of THIERRY MAGON DE 

LA VILLEHUCHET (a/k/a RENE THIERRY DE LA 

VILLEHUCHET), PIERRE DELANDMETER, 

THEODORE DUMBAULD, LUXALPHA SICAV as 

represented by its Liquidators MAITRE ALAIN 

RUKAVINA and PAUL LAPLUME, MAITRE ALAIN 

RUKAVINA AND PAUL LAPLUME, in their capacities 

as liquidators and representatives of LUXALPHA SICAV, 

ROGER HARTMANN, RALF SCHROETER, RENE 

EGGER, ALAIN HONDEQUIN, HERMANN KRANZ, 

BERND (a/k/a, BERNARD) STIEHL, GROUPEMENT 

FINANCIER LTD., 

Defendants. 

IRVING H. PICARD, Trustee for the Liquidation of 

Bernard L. Madoff Investment Securities LLC, 

v. 

Third-Party Plaintiff, 

UBS AG, UBS (LUXEMBOURG) SA, UBS FUND 

SERVICES (LUXEMBOURG) SA, UBS THIRD PARTY 

MANAGEMENT COMPANY SA, ACCESS 

INTERNATIONAL ADVISORS LLC, ACCESS 

INTERNATIONAL ADVISORS EUROPE LIMITED, 

ACCESS INTERNATIONAL ADVISORS LTD., 

ACCESS PARTNERS (SUISSE) SA, ACCESS 

MANAGEMENT LUXEMBOURG SA (f/k/a ACCESS 

INTERNATIONAL ADVISORS (LUXEMBOURG) SA) 

as represented by its Liquidator MAITRE FERNAND 

ENTRINGER, ACCESS PARTNERS SA as represented 

by its Liquidator MAITRE FERNAND ENTRINGER, 

PATRICK LITTAYE, CLAUDINE MAGON DE LA 

VILLEHUCHET (a/k/a CLAUDINE DE LA 

VILLEHUCHET) in her capacity as Executrix under the 

Will of THIERRY MAGON DE LA VILLEHUCHET


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(a/k/a RENE THIERRY DE LA VILLEHUCHET), 

CLAUDINE MAGON DE LA VILLEHUCHET (a/k/a 

CLAUDINE DE LA VILLEHUCHET) individually as the 

sole beneficiary under the Will of THIERRY MAGON DE 

LA VILLEHUCHET (a/k/a RENE THIERRY DE LA 

VILLEHUCHET), PIERRE DELANDMETER, 

THEODORE DUMBAULD, LUXALPHA SICAV as 

represented by its Liquidators MAITRE ALAIN 

RUKAVINA and PAUL LAPLUME, MAITRE ALAIN 

RUKAVINA AND PAUL LAPLUME, in their capacities 

as liquidators and representatives of LUXALPHA SICAV, 

ROGER HARTMANN, RALF SCHROETER, RENE 

EGGER, ALAIN HONDEQUIN, HERMANN KRANZ, 

BERND (a/k/a, BERNARD) STIEHL, GROUPEMENT 

FINANCIER LTD., 

Third-Party Defendants. 

TRUSTEE’S MEMORANDUM OF LAW IN OPPOSITION TO 

MOVING DEFENDANTS’ MOTIONS TO DISMISS THE AMENDED COMPLAINT 

PURSUANT TO FED. R. CIV. P. 12(b)(2) AND FORUM NON CONVENIENS


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TABLE OF CONTENTS 

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Page 

PRELIMINARY STATEMENT ................................................................................................... 2 

BACKGROUND ........................................................................................................................... 6 

A. Factual Background ................................................................................... 6 

B. Procedural History ................................................................................... 11 

ARGUMENT ............................................................................................................................... 12 

I. STANDARD OF REVIEW ................................................................................. 12 

II. STANDARD FOR DETERMINING PERSONAL JURISDICTION ................ 13 

A. Imputation of Personal Jurisdiction to Foreign Parties Closely 

Related to Parties Present in the Forum ................................................... 15 

1. Mere Department Jurisdiction...................................................... 16 

2. Agency Jurisdiction ..................................................................... 17 

III. THE COURT HAS PERSONAL JURISDICTION OVER THE MOVING 

DEFENDANTS ................................................................................................... 18 

A. The Court Has Personal Jurisdiction over Luxalpha ............................... 19 

1. Luxalpha Consented to the Court’s Jurisdiction by Filing 

Customer Claims .......................................................................... 19 

2. Luxalpha’s Proposed Exceptions to the Rule Regarding 

Claims Do Not Apply .................................................................. 21 

3. In the Alternative, the Trustee Has Made a Prima Facie 

Showing of Personal Jurisdiction over Luxalpha ........................ 22 

a. Luxalpha Purposefully Directed Activity Towards 

New York and Availed Itself of the Privilege of 

Those Activities ............................................................... 22 

b. The Causes of Action Arise out of and Relate to 

Luxalpha’s Contacts with New York ............................... 23 

B. The Court Has Personal Jurisdiction over the Moving UBS 

Defendants and the Moving Luxalpha Director Defendants ................... 24 

1. UBS SA is Subject to Jurisdiction Because it Purposefully 

Directed Investment Activity to BLMIS in New York ................ 24 

a. UBS SA was Responsible for the Formation of 

Luxalpha, and Opened the Luxalpha Account at 

BLMIS in New York ....................................................... 25 

b. UBS SA Contracted with BLMIS in New York 

Regarding the Custody of Funds in Luxalpha ................. 26


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c. UBS SA Contracted with BLMIS and AIA LLC in 

New York Regarding Luxalpha’s Portfolio 

Management ..................................................................... 27 

d. UBS SA Regularly Moved Luxalpha Investor 

Money Into and Out of BLMIS in New York 

Through its United States Bank Account......................... 28 

e. UBS SA Personnel Regularly Communicated with 

BLMIS Employees in New York Regarding 

Luxalpha .......................................................................... 29 

f. UBS SA Served as the Prime Bank for Groupement 

with Respect to BLMIS, and Directed Investment 

Activity to New York....................................................... 30 

g. UBS SA Earned Substantial Fees as a Result of Its 

Direction of Investments to New York Through 

Luxalpha and Groupement ............................................... 31 

h. UBS SA Submitted a Customer Claim to the 

Trustee on Behalf of Luxalpha ........................................ 32 

2. UBSFSL Is Subject to the Court’s Jurisdiction Because it 

Administered Luxalpha and Groupement, Directing 

Investments to BLMIS in New York ........................................... 32 

3. UBS SA and UBSFSL Are Subject to Jurisdiction Because 

Luxalpha Acted in New York as Their Agent ............................. 34 

4. UBSTPM is Subject to Jurisdiction Through Its Role as 

Luxalpha’s Management Company, and Because UBS SA 

Acted as Its Agent ........................................................................ 36 

5. The Trustee’s Claims Against UBS SA, UBSFSL, and 

UBSTPM Arise out of Their Contacts with New York ............... 38 

6. UBS SA, UBSFSL, and UBSTPM Are Mere Departments 

of UBS AG and Therefore Subject to the Court’s General 

Jurisdiction ................................................................................... 40 

7. The Court Has Jurisdiction over Each of the Moving 

Luxalpha Director Defendants Because Each Directed 

Investment Activity to New York ................................................ 47 

8. Each of the Moving Luxalpha Director Defendants Is 

Subject to Jurisdiction Because Luxalpha Transacted 

Business in New York as His Agent ............................................ 54 

C. The Court has Jurisdiction Over the Moving Access Defendants 

and Delandmeter ...................................................................................... 57


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Page 

1. Littaye and Villehuchet Operated Access’s International 

Operations as a Single Business Enterprise out of Access’s 

New York Office.......................................................................... 57 

2. Access Ignored Corporate Formalities with Regard to Its 

International Affiliates and Treated Its Business as One 

Entity ............................................................................................ 59 

3. The Five Moving Access Defendants are Subject to 

Jurisdiction Because They Directed Investments into 

BLMIS in New York ................................................................... 62 

4. AIA Europe Is Further Subject to Jurisdiction Because of 

Its Mere Department and Agency Relationships with 

Access’s New York Office .......................................................... 65 

5. AIA Ltd. Is Further Subject to Jurisdiction Because of Its 

Agency and Mere Department Relationships with Access’s 


6. AML Is Further Subject to Jurisdiction Because of Its 



7. AP (Lux) Is Further Subject to Jurisdiction Because of Its 



8. AP (Suisse) Is Further Subject to Jurisdiction Because of 

Its Agency and Mere Department Relationships with 

Access’s New York Office .......................................................... 73 

9. Delandmeter Is Subject to Jurisdiction Because He 

Undertook Numerous Actions Directed at New York ................. 74 

a. Delandmeter Directed His Actions at New York in 

Furtherance of Access’s BLMIS-Related Business ......... 76 

b. Delandmeter Directed His Actions at New York in 

Furtherance of Luxalpha’s BLMIS-Related 

Business ........................................................................... 76 

10. The Moving Access Defendants and Delandmeter’s 

Arguments to the Contrary Mischaracterize the Appropriate 

Legal Standards and Misstate the Facts ....................................... 79 

11. AML and Delandmeter Are Subject to Jurisdiction for the 

Additional Reason that They Have Filed Suit Against the 

Trustee in Luxembourg ................................................................ 81


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IV. ALL MOVING DEFENDANTS WAIVED PERSONAL JURISDICTION 

DEFENSES BY PARTICIPATING IN THE INSTANT AND RELATED 

PROCEEDINGS .................................................................................................. 83 

V. ALL MOVING DEFENDANTS FAIL TO SHOW THAT THE 

EXERCISE OF PERSONAL JURISDICTION WOULD BE 

UNREASONABLE ............................................................................................. 86 

VI. JURISDICTIONAL DISCOVERY SHOULD BE PERMITTED IN THE 

ALTERNATIVE .................................................................................................. 89 

A. Jurisdictional Discovery Is Warranted to Fully Reveal the Nature 

of the Moving UBS Defendants’ Contacts with This Forum .................. 91 

B. Jurisdictional Discovery Is Warranted to Explore the Contacts that 

the Moving Luxalpha Director Defendants Have with This Forum ........ 92 

C. Jurisdictional Discovery Is Warranted to Explore the 

Interconnected Contacts Between the Moving Access Defendants, 

the Other Access Entities, and This Forum ............................................. 93 

D. Jurisdictional Discovery Is Warranted to Confirm the Numerous 

Contacts That Delandmeter Had with This Forum .................................. 94 

VII. THE COURT SHOULD NOT DISMISS THIS ADVERSARY 

PROCEEDING FOR FORUM NON CONVENIENS ........................................ 95 

A. The Trustee’s Choice of a United States Forum Deserves 

Significant Deference............................................................................... 96 

B. Luxalpha Has Not Met Its Burden to Show that Luxembourg Is an 

Adequate Alternative Forum.................................................................... 98 

C. Luxalpha Has Not Met Its Burden to Show that the Private and 

Public Interest Factors Weigh Heavily in Favor of Dismissal ............... 100 

1. Luxalpha Has Not Shown that the Private Interest Factors 

Favor Litigation in Luxembourg ................................................ 101 

a. Litigation in the United States Will Involve Greater 

Access to Evidence and Lower Costs ............................ 102 

(1) Witnesses ........................................................... 102 

(2) Documents ......................................................... 103 

b. Litigation in Luxembourg Would Cause 

Inefficiency and Unnecessary Delay ............................. 105 

2. Luxalpha Has Not Shown that the Public Interest Factors 

Favor Litigation in Luxembourg ................................................ 106


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(continued) 

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Page 

a. The United States Has Enormous Interest in Having 

This Controversy Decided Domestically ....................... 106 

b. There Are No Difficult Problems in Conflict of 

Laws or the Application of Foreign Law ....................... 107 

D. Luxalpha’s Arguments Relating to the Pending Action in 

Luxembourg Are Erroneous .................................................................. 109 

1. The “First Filed” Rule Is Inapplicable in the Context of 

International Parallel Proceedings ............................................. 109 

2. Luxalpha Misrepresents the Principle of Deferring to 

Foreign Liquidations and Fails to Acknowledge Dispositive 

Distinctions ................................................................................ 110 

3. The Trustee Has Sought an Injunction Preventing His 

Impleader into the Luxembourg Action ..................................... 111 

CONCLUSION .......................................................................................................................... 113


Pg 9 of 133 

CASES 

TABLE OF AUTHORTIES 

- i - 

Page(s) 

AAR Int’l, Inc. v. Nimelias Enter, S.A., 

250 F.3d 510 (7th Cir. 2001) .................................................................................................110 

Airflow Catalyst Sys., Inc. v. Huss Techs. GmbH, 

No. 11-CV-6012, 2011 WL 5326535 (W.D.N.Y. Nov. 3, 2011) ............................................98 

Alki Partners v. Vatas Holding GMBH, 

769 F. Supp. 2d 478 (S.D.N.Y. 2011)......................................................................................56 

Amsellem v. Host Marriot Corp., 

280 A.D.2d 357 (N.Y. App. Div. 2001) ..................................................................................91 

Andros Compania Maritima, S.A. v. Intertanker Ltd., 

718 F.Supp. 1215 (S.D.N.Y. 1989) .........................................................................................84 

Anheuser-Busch, Inc. v. Paques, Inc. (In re Paques, Inc.), 

277 B.R. 615 (Bankr. E.D. Pa. 2000) ......................................................................................13 

Apollo Techs. Corp. v. Centrosphere Indus. Corp., 

805 F. Supp. 1157 (D.N.J. 1992) .............................................................................................87 

In re Application to Enforce Admin. Subpoenas Duces Tecum of SEC v. Knowles, 

87 F.3d 413 (10th Cir.1996) ....................................................................................................52 

APWU v. Potter, 

343 F.3d 619 (2d Cir. 2003).....................................................................................................89 

Asahi Metal Indus. Co., Ltd. v. Super. Ct. Cal., 

480 U.S. 102 (1987) ...........................................................................................................87, 89 

In re: Assicurazioni Generali S.p.A. Holocaust Ins. Litig., 

228 F. Supp. 2d 348 (S.D.N.Y. 2002)....................................................................................104 

In re AstraZeneca Sec. Litig., 

559 F. Supp. 2d 453 (S.D.N.Y. 2008)......................................................................................56 

Astropower Liquidating Trust v. Xantrax Tech., Inc. (In re AstroPower Liquidating 

Trust), 

335 B.R. 309 (Bankr. D. Del. 2005) ........................................................................................98 

Aurora Mgmt. Partners, Inc. v. GC Fin. Servs., Inc. (In re Protected Vehicles, Inc.), 

429 B.R. 856 (Bankr. D.S.C. 2010) .........................................................................................19 

Ayyash v. Bank Al-Madina, 

No. 04 Civ. 9201 (GEL), 2006 WL 587342 (S.D.N.Y. Mar. 9, 2006) ....................................90


Pg 10 of 133 


(continued) 

- ii - 

Page(s) 

In re Bailey & Assocs., Inc., 

224 B.R. 734 (Bankr. E.D. Mo. 1998) .....................................................................................20 

Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 

305 F.3d 120 (2d Cir. 2002).....................................................................................................87 

Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 

273 F.3d 241 (2d Cir. 2001).....................................................................................................96 

Beana v. Woori Bank, 

No. 05 Civ. 7018, 2006 WL 2935752 (S.D.N.Y. Oct. 11, 2006) ..........................................100 

In re Bernard L. Madoff Inv. Securities LLC, 

424 B.R. 122 (Bankr. S.D.N.Y. 2010), aff’d 654 F.3d 229 (2d Cir. 2011) ...............................6 

Best Van Lines, Inc. v. Walker, 

490 F.3d 239 (2d Cir. 2007).....................................................................................................12 

Bialek v. Racal-Milgo, Inc., 

545 F. Supp. 25 (S.D.N.Y. 1982) ............................................................................................67 

Bickerton v. Bozel S.A. (In re Bozel S.A.), 

434 B.R. 86 (Bankr. S.D.N.Y. 2010) .....................................................................51, 53, 54, 75 

Bodner v. Banque Paribas, 

114 F. Supp. 2d 117 (E.D.N.Y. 2000) ...................................................................................104 

Briese Lichttechnik Vertriebs GmbH v. Langton, 

No. 09 Civ. 9790 (LTS) (MHD), 2010 WL 4615958 (S.D.N.Y. Nov. 9, 2010) ...............93, 94 

British Int’l Ins. Co. Ltd. v. Seguros La Republica, S.A., 

No. 90 Civ. 2370, 2000 WL 713057 (S.D.N.Y. Jun. 2, 2000)...............................................107 

Bryant Park Capital v. Jelco Ventures, 

No. 05 Civ. 8702 (GEL), 2005 WL 3466013 (S.D.N.Y. Dec. 16, 2005) ................................86 

Bulova Watch Co. v. Hattori & Co., 

508 F. Supp. 1322 (E.D.N.Y. 1981) ..................................................................................17, 69 

Burger King Corp. v. Rudzewicz, 

471 U.S. 462 (1985) ......................................................................................................... passim 

Calavo Growers of Cal. v. Generali Belgium, 

632 F.2d 963 (2d Cir. 1980)...........................................................................................101, 103


Pg 11 of 133 


(continued) 

- iii - 

Page(s) 

Calder v. Jones, 

465 U.S. 783 (1984) ......................................................................................................... passim 

Chase Manhattan Bank v. Banque Generale Du Commerce, 

No. 96 Civ. 5184 (KMW), 1997 WL 266968 (S.D.N.Y. May 20, 1997) ..........................23, 29 

Chloe v. Queen Bee of Beverly Hills, LLC, 

616 F.3d 158 (2d Cir. 2010)............................................................................................. passim 

Concesionaria DHM, S.A. v. Int’l Fin. Corp., 

307 F. Supp. 2d 553 (S.D.N.Y. 2004)................................................................................95, 99 

Constellation Energy Commodities Grp. Inc. v. Transfield ER Cape Ltd., 

801 F. Supp. 2d 211 (S.D.N.Y. 2011)................................................................................96, 98 

Cromer Fin. Ltd. v. Berger, 

137 F. Supp. 2d 452 (S.D.N.Y. 2001)..................................................................25, 32, 62, 103 

Cruisephone, Inc. v. Cruise Ships Catering & Servs. N.V. (In re Cruisephone, Inc.), 

278 B.R. 325 (Bankr. E.D.N.Y. 2002) .....................................................................................20 

CutCo Indus., Inc. v. Naughton, 

806 F.2d 361 (2d Cir. 1986).....................................................................................................55 

Dale v. Banque SCS Alliance S.A., 

No. 02 Civ. 3592 (RCC) (KNF), 2005 WL 2347853 (S.D.N.Y. Sept. 22, 2005) ....................28 

In re Deak & Co., Inc., 

63 B.R. 422 (Bankr. S.D.N.Y. 1986) .......................................................................................83 

Devinsky v. Kingsford, 

No. 05 Civ. 2064 (PAC), 2008 WL 857525 (S.D.N.Y. Mar. 31, 2008) ..................................80 

Dexter v. Gilbert (In re Kirchoff Frozen Foods, Inc.), 

496 F.2d 84 (9th Cir. 1974) .....................................................................................................21 

DiRienzo v. Philip Servs. Corp., 

294 F.3d 21 (2d Cir. 2002).....................................................................................................100 

DiStefano v. Carozzi N. Am., Inc., 

286 F.3d 81 (2d Cir. 2001).......................................................................................................12 

Doe v. Hyland Therapeutics Div., 

807 F. Supp. 1117 (S.D.N.Y. 1992).......................................................................................102


Pg 12 of 133 


(continued) 

- iv - 

Page(s) 

Dorfman v. Marriott Int’l Hotels, Inc., 

No. 99 Civ. 10496 (CSH), 2002 WL 14363 (S.D.N.Y. Jan. 3, 2002) ............................. passim 

Drucker Cornell v. Assicurazioni Generali S.p.A., Consol., 

No. 97 Civ. 2262 (MBM), 2000 WL 284222 (S.D.N.Y. Mar. 16, 2000) ................................16 

Duravest, Inc v. Viscardi, A.G., 

581 F. Supp. 2d 628 (S.D.N.Y. 2008)......................................................................................56 

Eclaire Advisor Ltd. as Trustee to Daewoo Int’l (America) Corp. Creditor Trust v. 

Daewoo Eng’g & Constr., 

375 F. Supp. 2d 257 (S.D.N.Y. 2005)......................................................................96, 101, 107 

Erick Van Egeraat Associated Architects B.V. v. NBBJ LLC, 

No. 08 Civ. 7873, 2009 WL 1209020 (S.D.N.Y. Apr. 29, 2009) .................................... passim 

ESI, Inc. v. Coastal Corp., 

61 F. Supp. 2d 35 (S.D.N.Y. 1999) .......................................................................13, 16, 65, 70 

Eskofot A/S v. E.I. Du Pont De Nemours & Co., 

872 F. Supp. 81 (S.D.N.Y. 1995) ............................................................................................14 

Fagan v. Austria, 

No. 08 Civ. 6715 (LTS) (JCF), 2011 WL 1197677 (S.D.N.Y. Mar. 25, 2011) .......................47 

Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 

907 F.2d 911 (9th Cir. 1990) ...................................................................................................23 

Federalpha Steel LLC v. Fed. Pipe & Steel Corp. (In re Federalpha Steel LLC), 

341 B.R. 872 (Bankr. N.D. Ill. 2006) ......................................................................................14 

Finanz AG Zurich v. Banco Economico S.A., 

192 F.3d 240 (2d Cir. 1999)...................................................................................................110 

First City Nat’l Bank & Trust Co. v. Simmons, 

878 F.2d 76 (2d Cir. 1989).....................................................................................................109 

Fox v. Picard (In re Bernard L. Madoff Inv. Secs. LLC), 

No. 10 Civ. 4652 (JGK), 2012 WL 99089 (S.D.N.Y. Mar. 26, 2012) ....................................81 

Gelfand v. Tanner Motor Tours, Ltd., 

385 F.2d 116 (2d Cir.1967)......................................................................................................17 

Glaxosmithkline Consumer Healthcare, L.P. v. Merix Pharm. Corp., 

No. Civ.A. 05-898, 2005 WL 1116318 (D.N.J. May 10, 2005) ............................................109


Pg 13 of 133 


(continued) 

- v - 

Page(s) 

GMAM Inv. Funds Trust I v. Globo Comunicações e Participações S.A. 

(In re Globo Comunicações e Participações S.A.), 

317 B.R. 235 (Bankr. S.D.N.Y. 2004) .....................................................................................13 

Golden Archer Investments, LLC v. Skynet Financial Systems, 

No. 11 Civ. 3673(RJS), 2012 WL 123989 (S.D.N.Y. Jan. 3, 2012) ........................................29 

Greatship (India) Ltd. v. Marine Logistics Solutions (Marsol) LLC, 

No. 11 Civ. 420 (RJH), 2012 WL 204102 (S.D.N.Y. Jan. 24, 2012) ......................................47 

Gucci Am., Inc. v. Curveal Fashion, 

No. 09 Civ. 8458, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010) .............................................107 

Guidi v. Inter–Cont’l Hotels Corp., 

224 F.3d 142 (2d Cir. 2000).....................................................................................................96 

Gulf Oil Corp. v. Gilbert, 

330 U.S. 501 (1947) .................................................................................................................95 

Hamilton v. Atlas Turner, Inc., 

197 F.3d 58 (2d. Cir. 1999)......................................................................................................83 

Haywin Textile Prods., Inc. v. Int’l Fin. Inv. & Commerce Bank, Ltd., 

137 F. Supp. 2d 431 (S.D.N.Y. 2001)....................................................................................101 

Helicopteros Nacionales de Colombia, S.A. v. Hall, 

466 U.S. 408 (1984) .................................................................................................................14 

Herbst Gaming, Inc. v. Insurcorp. (In re Zante, Inc.), 

No. 10 cv 00231 (RCJ) (RAM), 2010 WL 5477768 (D. Nev. Dec. 29, 2010) ........................83 

Heritage House Rests., Inc. v. Cont’l Funding Grp., Inc., 

906 F.2d 276 (7th Cir.1990) ....................................................................................................52 

Hoffritz for Cutlery Inc. v. Amajac, Ltd., 

763 F.2d 55 (2d Cir. 1985).................................................................................................12, 13 

Howard v. Klynveld Peat Marwick Goerdeler, 

977 F. Supp. 654 (S.D.N.Y. 1997) ........................................................................................109 

I.E. Liquidation, Inc. v. Litostroj Hydro, Inc. (In re I.E. Liquidation, Inc.), 

Bankr. No. 06-62179, 2009 WL 1586706 (Bankr. N.D. Ohio 2009) ....................................105 

Indem. Ins. Co. of N. Am. v. K-Line Am., Inc., 

No. 06 Civ. 0615 (BSJ), 2007 WL 1732435 (S.D.N.Y. June 14, 2007) ..................................47


Pg 14 of 133 


(continued) 

- vi - 

Page(s) 

Indosuez Int’l. Fin. B.V. v. Nat’l. Reserve Bank, 

774 N.E.2d 696 (N.Y. 2002) ....................................................................................................29 

Ingram Micro, Inc. v. Airoute Cargo Express, Inc., 

No. 99 Civ. 12480, 2001 WL 282696 (S.D.N.Y. Mar. 22, 2001) .........................................103 

In re Int’l Banking Corp. B.S.C., 

439 B.R. 614 (Bankr. S.D.N.Y. 2010) ...................................................................................110 

Int’l Shoe Co. v. Washington, 

326 U.S. 310 (1945) .....................................................................................................13, 14, 86 

Iragorri v. United Tech. Corp., 

274 F.3d 65 (2d Cir. 2001)............................................................................................... passim 

Itoba, Ltd. v. LEP Grp. PLC, 

930 F. Supp. 36 (D. Conn. 1996) .............................................................................................48 

Jayne v. Royal Jordanian Airlines Corp., 

502 F. Supp. 848 (S.D.N.Y. 1980) ..........................................................................................65 

Jesup, Josephthal & Co. v. Piguet & Cie, 

No. 90 Civ. 6544 (WK), 1991 WL 168053 (S.D.N.Y. Aug. 22, 1991) ...................................31 

JP Morgan Chase Bank, N.A. v. Law Office of Robert Jay Gumenick, P.C., 

No. 08 Civ. 2154 (VM), 2011 WL 1796298 (S.D.N.Y. Apr. 22, 2011) ..................................85 

JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. De C.V., 

412 F.3d 418 (2d Cir. 2005)...........................................................................................110, 111 

Kargo, Inc. v. Pegaso PCS, S.A. de C.V., 

No. 05 Civ. 10528 (CSH) (DFE), 2008 WL 2930546 (S.D.N.Y. July 29, 2008) ....................45 

Keller v. Blinder (In re Blinder Robinson & Co., Inc.), 

135 B.R. 892 (D. Col. 1991) ....................................................................................................19 

Kelley v. Cinar Corp. (In re CINAR Corp. Sec. Litig.), 

186 F. Supp. 2d 279 (E.D.N.Y. 2002) .....................................................................................48 

Kinetic Instruments, Inc. v. Lares, 

802 F. Supp. 976 (S.D.N.Y. 1992) ..........................................................................................15 

Kitaru Innovations Inc. v. Chandaria, 

698 F. Supp. 2d 386 (S.D.N.Y. 2010)....................................................................................110


Pg 15 of 133 


(continued) 

- vii - 

Page(s) 

Kreutter v. McFadden Oil Corp., 

522 N.E.2d 40 (N.Y. 1988) .............................................................................................. passim 

LaMonica v. North of England Protecting and Indem. Assoc. Ltd. (In re Probulk Inc.), 

407 B.R. 56 (S.D.N.Y. 2009) ...................................................................................................81 

Langenberg v. Sofair, 

No. 03 CV 8339 (KMK), 2006 WL 2628348 (S.D.N.Y. Sept. 11, 2006) ...............................80 

Leonard v. Optimal Payments Ltd. (In re Nat’l Audit Def. Network), 

332 B.R. 896 (Bankr. D. Nev. 2005) .......................................................................................35 

In re Levant Line, S.A., 

166 B.R. 221 (Bankr. S.D.N.Y. 1994) .....................................................................................16 

Levey v. Hamilton (In re Teknek, LLC), 

354 B.R. 181 (Bankr. N.D. Ill. 2006) ......................................................................96, 103, 106 

Linde v. Arab Bank, PLC, 

463 F. Supp. 2d 310 (E.D.N.Y. 2006) ...................................................................................108 

Lombard-Wall Inc. v. N.Y.C. Hous. Dev. Corp. (In re Lombard-Wall, Inc.), 

44 B.R. 928 (Bankr. S.D.N.Y. 1984) .......................................................................................20 

Luan Inv., S.E. v. Franklin 145 Corp. (In re Petrie Retail, Inc.), 

No. 95B44528 (AJG), 2001 WL 826122 (S.D.N.Y. July 19, 2001)........................................20 

Marine Midland Bank, N.A. v. Miller, 

664 F.2d 899 (2d Cir. 1981).....................................................................................................13 

Mayatextil, S.A. v. Liztex U.S.A., Inc., 

No. 92 Civ. 4528 (SS), 1995 WL 131774 (S.D.N.Y. Mar. 23, 1995) .....................................16 

McGee v. Int’l Life Ins. Co., 

355 U.S. 220 (1957) .................................................................................................................52 

In re Med-Atlantic Petrol. Corp., 

233 B.R. 644 (Bankr. S.D.N.Y. 1999) .....................................................................................26 

Miller v. Calotychos, 

303 F. Supp. 2d 420 (S.D.N.Y. 2004)......................................................................................75 

Moneygram Payment Sys., Inc. v. Consorcio Oriental, S.A., 

No. 05 Civ. 10773 (RMB), 2007 WL 1489806 (S.D.N.Y. May 21, 2007) .............................53


Pg 16 of 133 


(continued) 

- viii - 

Page(s) 

Motown Record Co., L.P. v. iMesh.com, Inc., 

No. 03 Civ. 7339 (PKC), 2004 WL 503720 (S.D.N.Y. Mar. 12, 2004) ..................................70 

Mullins v. TestAmerica, Inc., 

564 F.3d 386 (5th Cir. 2009) ...................................................................................................80 

MWL Brasil Rodas & Eixos Ltda v. K-IV Enters. LLC, 

661 F. Supp. 2d 419 (S.D.N.Y. 2009)......................................................................................40 

In re Nat’l Audit Def. Network, 

332 B.R. (Bankr. D. Nev. 2005) ..............................................................................................71 

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. BP Amoco P.L.C., 

319 F. Supp. 2d 352 (S.D.N.Y. 2004)......................................................................................55 

Nelly de Vuyst, USA, Inc. v. Europe Cosmetiques, Inc., 

No. 11 CV 1491, 2012 WL 246673 (S.D.N.Y. Jan. 6, 2012) ..........................................98, 101 

Newbro v. Freed, 

337 F. Supp. 2d 428 (S.D.N.Y. 2004)......................................................................................40 

Nordberg v. Granfinanciera, S.A. (In re Chase & Sanborn Corp.), 

835 F.2d 1341 (11th Cir. 1988), rev’d on other grounds, 492 U.S. 33 (1989) ........................88 

Norex Petrol. Ltd. v. Access Indus., Inc., 

416 F.3d 146 (2d Cir. 2005)............................................................................................. passim 

Palmieri v. Estefan, 

793 F. Supp. 1182 (S.D.N.Y. 1992).............................................................................16, 17, 38 

Pandeosingh v. Am. Med. Response, Inc., 

No. 09-CV-5143, 2012 WL 511815 (E.D.N.Y. Feb. 15, 2012) ..............................................98 

Parke-Bernet Galleries, Inc. v. Franklyn, 

256 N.E.2d 506 (N.Y. 1970) ....................................................................................................30 

Picard v. Chais (In re Bernard L. Madoff Inv. Sec. LLC), 

440 B.R. 274 (Bankr. S.D.N.Y. 2010) ............................................................................. passim 

Picard v. Cohmad Sec. Corp. (In re Bernard L. Madoff Inv. Sec. LLC), 

418 B.R. 75 (Bankr. S.D.N.Y. 2009) ............................................................................... passim 

Picard v. Magnify Inc. (In re Bernard L. Madoff Inv. Secs. LLC), 

10-05279 (BRL), 2012 WL 2254995 (Bankr. S.D.N.Y. June 15, 2012) .................................90


Pg 17 of 133 


(continued) 

- ix - 

Page(s) 

Picard v. Maxam Absolute Return Fund, L.P. (In re Bernard L. Madoff Inv. Sec. LLC), 

460 B.R. 106 (Bankr. S.D.N.Y. 2011) ............................................................................. passim 

Picard v. Maxam Absolute Return Fund, L.P. (In re Bernard L. Madoff Inv. Secs. LLC), 

No. 11 Civ. 8629 (JPO), 2012 WL 1570859 (S.D.N.Y. May 4, 2012) .................................111 

Picard v. Stahl (In re Bernard L. Madoff), 

443 B.R. 295 (Bankr. S.D.N.Y. 2011) .....................................................................................19 

Pilates, Inc. v. Pilates Inst., Inc., 

891 F. Supp. 175 (S.D.N.Y. 1995) ..........................................................................................13 

Piombo Corp. v. Castlerock Props. (In re Castlerock Props.), 

781 F.2d 159 (9th Cir. 1986) ...................................................................................................21 

Piper Aircraft Co. v. Reyno, 

454 U.S. 235 (1981) .................................................................................................................96 

Pollux Holding Ltd. v. Chase Manhattan Bank, 

329 F.3d 64 (2d Cir. 2003).......................................................................................................98 

PT United Can Co. v. Crown Cork & Seal Co., 

138 F.3d 65 (2d Cir. 1998)...............................................................................................95, 100 

Rahl v. Bande, 

328 B.R. 387 (S.D.N.Y. 2005) ...............................................................................................106 

Reino De Espana v. Am. Bureau of Shipping, 

No. 03 Civ 3573, 2005 WL 1813017 (S.D.N.Y. Aug. 1, 2005) ............................................107 

Retail Software Servs., Inc. v. Lashlee, 

854 F.2d 18 (2d Cir. 1988)............................................................................................... passim 

Richard Feiner & Co., Inc. v. BMG Music Spain, S.A., 

No. 01 Civ. 0937 (JSR), 2003 WL 740605 (S.D.N.Y. 2003) ..................................................15 

Royal & Sun Alliance Ins. Co. of Canada v. Century Int’l Arms, Inc., 

466 F.3d 88 (2d Cir. 2006).....................................................................................................109 

In re Royal Ahold N.V. Sec. & ERISA Litig., 

351 F. Supp. 2d 334 (D. Md. 2004) (D. Md. 2004) ...........................................................48, 54 

Estate of Sapper v. Seatrain Lines, Inc. (In re Seatrain Lines, Inc.), 

32 B.R. 669 (Bankr. S.D.N.Y. 1983) .....................................................................................105


Pg 18 of 133 


(continued) 

- x - 

Page(s) 

Schenker v. Assicurazioni Genereali S.p.A., Consol., 

No. 98 Civ. 9186 (MBM), 2002 WL 1560788 (S.D.N.Y. July 15, 2002) .........................12, 89 

Schmerzler v. Intercont’l Hotels Grp. Res., Inc., 

No. 3:11-cv-120, 2011 WL 3652174 (D. Conn. Aug. 18, 2011) .............................................98 

Scholastic, Inc. v. Stouffer, 

No. 99 Civ. 11480 (AGS), 2000 WL 1154252 (S.D.N.Y. Aug. 14, 2000)..............................55 

SEC v. Gonzalez de Castilla, 

No. 01 Civ. 3999, 2001 WL 940560 (S.D.N.Y. Aug. 20, 2001) .............................................88 

SEC v. Unifund SAL, 

910 F.2d 1028 (2d Cir. 1990)...................................................................................................88 

Sedona Corp. v. Ladenburg Thalmann & Co., 

No. 03 Civ. 3120 (LTS) (THK), 2006 WL 2034663 (S.D.N.Y. July 19, 2006) ......................56 

Sherwood Inv. Ltd., Inc. v. Royal Bank of Scotland N.V. (In re Sherwood Invs. Overseas 

Ltd., Inc.), 

442 B.R. 834 (Bankr. M.D. Fla. 2010) ..................................................................................105 

Silverman v. K.E.R.U. Realty Corp. (In re Allou Distribs., Inc.), 

379 B.R. 5 (Bankr. E.D.N.Y. 2007) .........................................................................................53 

Société Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 

357 U.S. 197 (1958) ...............................................................................................................108 

Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 

450 F.3d 100 (2d Cir. 2006).........................................................................................23, 39, 80 

Ssangyong Corp. v. Vida Shoes Int’l, Inc., 

No. 03 Civ. 5014, 2004 WL 1125659 (S.D.N.Y. May 20, 2004) ..........................................107 

Stratagem Dev. Corp. v. Heron Int’l N.V., 

153 F.R.D. 535 (S.D.N.Y. 1994) .............................................................................................90 

In re Sumitomo Copper Litig., 

120 F. Supp. 2d 328 (S.D.N.Y. 2000)..........................................................................18, 54, 79 

Sunward Elecs., Inc. v. McDonald, 

362 F.3d 17 (2d Cir. 2004).................................................................................................22, 25 

In re Tamoxifen Citrate Antitrust Litig., 

262 F. Supp. 2d 17 (E.D.N.Y. 2003) .......................................................................................13


Pg 19 of 133 


(continued) 

- xi - 

Page(s) 

In re Terrorist Attacks on Sept. 11, 2001, 

718 F. Supp. 2d 456 (S.D.N.Y. 2010)......................................................................................56 

Texas Int’l Magnetics, Inc. v. BASF Aktiengesellschaft, 

31 Fed. App’x 738 (2d Cir. 2002)............................................................................................90 

Time, Inc. v. Simpson, 

No. 02 Civ 4917 (MBM), 2003 WL 23018890 (S.D.N.Y. Dec. 22, 2003) .............................56 

Time Inc. v. Simpson, 

No. 02CIV4917, 2002 WL 31844914 (S.D.N.Y. Dec. 18, 2002)......................................93, 94 

Torco Oil Co. v. Innovative Thermal Corp., 

730 F. Supp. 126 (N.D. Ill. 1989) ............................................................................................54 

Tucker Plastics, Inc. v. Pay ‘N Pak Stores, Inc. (In re PNP Holdings Corp.), 

184 B.R. 805 (B.A.P. 9th Cir. 1995)........................................................................................21 

U.S. Lines, Inc. v. GAC Marine Fuels Ltd. (In re McLean Indus. Inc.), 

68 B.R. 690 (Bankr. S.D.N.Y. 1986) .......................................................................................89 

Uebler v. Boss Media, AB, 

363 F. Supp. 2d 499 (E.D.N.Y. 2005) .....................................................................................90 

Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 

751 F.2d 117 (2d Cir. 1984)...............................................................................................16, 40 

Wells Fargo & Co.v. Wells Fargo Express Co., 

556 F.2d 406 (2d Cir. 1977).....................................................................................................90 

Winston & Strawn v. Dong Won Sec. Co., 

No. 02 Civ. 0183 (RWS), 2002 WL 31444625 (S.D.N.Y. Nov. 1, 2002) ...............................90 

Wiwa v. Royal Dutch Petrol. Co., 

226 F.3d 88 (2d Cir. 2000).................................................................................................17, 95 

World-Wide Volkswagen Corp. v. Woodson, 

444 U.S. 286 (1980) .................................................................................................................86 

Zainal v. Am.-Europe-Asia Int’l Trade and Mgmt. Consultants, Ltd., 

670 N.Y.S.2d 76 (1st Dep’t 1998) ...........................................................................................75 

Zim Integrated Shipping Servs., Ltd. v. Belco Res., Inc., 

No. 07 Civ. 5861, 2008 WL 1959041 (S.D.N.Y. May 2, 2008) ............................................101


Pg 20 of 133 

STATUTES 


(continued) 

- xii - 

Page(s) 

11 U.S.C. § 362(a) .........................................................................................................................81 

15 U.S.C. §§ 78aaa et seq. ...............................................................................................................1 

28 U.S.C. § 1334(e) .......................................................................................................................81 

CPLR § 301....................................................................................................................................15 

CPLR § 302........................................................................................................................15, 18, 54 

RULES 

Fed. R. Bankr. P. 7004(f) ...............................................................................................................13 

Fed. R. Bankr. P. 9016 .........................................................................................................103, 104 

Fed. R. Civ. P. 12(b) .............................................................................................................. passim 

Fed. R. Civ. P. 12(h)(1)(B) ............................................................................................................84 

Fed. R. Civ. P. 45 .................................................................................................................103, 104 

OTHER AUTHORITIES 

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 5C FEDERAL PRACTICE & PROCEDURE § 

1391 (3d ed. 2010) ...................................................................................................................85


Pg 21 of 133 

Irving H. Picard, as trustee (“Trustee”) for the substantively consolidated liquidation of 

the business of Bernard L. Madoff Investment Securities LLC (“BLMIS”) and the estate of 

Bernard L. Madoff (“Madoff”), under the Securities Investor Protection Act (“SIPA”), 15 U.S.C. 

§§ 78aaa et seq., by his undersigned counsel, hereby submits this consolidated opposition to the 

April 27, 2012 motions to dismiss the Amended Complaint for lack of personal jurisdiction filed 

by the following defendants (collectively, the “Moving Defendants”): 

� Luxalpha: Luxalpha Sicav, as represented by its Liquidators Maitre Alain 

Rukavina and Mr. Paul Laplume, and Maitre Alain Rukavina and Mr. Paul Laplume, in their 

capacities as liquidators and representatives of Luxalpha Sicav (collectively, “Luxalpha”); 

� The Moving UBS Defendants: UBS (Luxembourg) S.A. (“UBS SA”), UBS 

Fund Services (Luxembourg) S.A. (“UBSFSL”), and UBS Third Party Management 

Company S.A. (“UBSTPM”) (collectively, the “Moving UBS Defendants”); 

� The Moving Luxalpha Director Defendants: Alain Hondequin, Hermann 

Kranz, Rene Egger, and Ralf Schroeter (collectively, the “Moving Luxalpha Director 

Defendants”); 

� The Moving Access Defendants: Access International Advisors Europe Limited 

(“AIA Europe”), Access International Advisors Ltd. (“AIA Ltd.”), Access Management 

Luxembourg SA (f/k/a Access International Advisors (Luxembourg) SA) (“AML” or “AIA 

(Lux)”), Access Partners SA (“AP (Lux)”), and Access Partners (Suisse) SA (“AP (Suisse)”) 

(collectively, the “Moving Access Defendants”); and 

� Pierre Delandmeter (“Delandmeter”). 

This consolidated opposition also opposes Luxalpha’s motion to dismiss for forum non 

conveniens, which is not joined by any other Defendant.


Pg 22 of 133 

PRELIMINARY STATEMENT 

Each and every one of the Moving Defendants played an active and vital role in an 

investment operation that was directed solely at BLMIS in New York and that was designed 

specifically to derive profits from investment activity in New York. Each of the Moving 

Defendants purposefully availed themselves of the benefits of conducting business in New York 

such that the Court may exercise personal jurisdiction over each of them in this action, which 

arises from their knowing and intentional direction of conduct toward this forum. In addition, 

New York is the proper forum for the adjudication of the Trustee’s claims against the Moving 

Defendants. 

The Moving Defendants each served in one or more critical roles in the feeder funds 

Luxalpha and Groupement Financier (“Groupement”), feeder funds that were specifically created 

for investment in BLMIS in New York. Both Luxalpha and Groupement were entirely invested 

in BLMIS. Each of the Moving Defendants assumed his or its role or roles exclusively for the 

purpose of investment in New York, and each benefited substantially as a result of his or its 

conduct ultimately directed to this forum. Given the facts set forth in the Trustee’s Amended 

Complaint, and discussed in further detail herein, the Moving Defendants cannot be heard to 

complain that this Court lacks the power to determine the claims against them. 

Luxalpha maintained an account at BLMIS that fed more than a billion dollars into 

Madoff’s scheme. Luxalpha has also filed (or had filed on its behalf) multiple customer claims 

relating to its account at BLMIS. Luxalpha is unquestionably subject to this Court’s jurisdiction, 

and the other Moving Defendants who created, directed, managed, and supported Luxalpha are 

likewise properly before this Court. 

Luxalpha was created, operated, and serviced by the Moving UBS Defendants and 

Defendant UBS AG (collectively, “UBS”), in conjunction with the Moving Access Defendants 

2


Pg 23 of 133 

and other entities and individuals related to Access International Advisors (collectively, 

“Access”). UBS AG, which has not contested jurisdiction, and UBS SA were the co-sponsors of 

Luxalpha at its inception, and created Luxalpha for the sole purpose of investing in BLMIS in 

New York. UBS SA earned fees the Trustee seeks to recover by, among other things, 

contracting and regularly communicating with BLMIS, making transfers to and from BLMIS for 

Luxalpha investors, and serving as Luxalpha’s designated custodian and portfolio manager. 

UBS SA also submitted customer claims on behalf of Luxalpha and served as the prime bank for 

the Groupement fund. UBSFSL earned fees the Trustee seeks to recover by administering the 

investments made by Luxalpha and Groupement in New York, including through direct contact 

with Access’s New York office and BLMIS employees. UBSTPM earned fees the Trustee seeks 

to recover by serving as the portfolio manager for Luxalpha. Each of the Moving UBS 

Defendants has sufficient minimum contacts with New York to support the exercise of 

jurisdiction. 

The Moving Access Defendants also directed their actions toward New York with the 

intent of availing themselves of the benefits of business conducted here. AIA Europe earned 

compensation by administering Groupement’s investments in New York, by regularly 

corresponding with Access’s New York office and BLMIS employees concerning subscriptions 

and redemptions, and by tracking Groupement’s and Luxalpha’s investments, among many other 

tasks based on activity in New York. AIA Ltd., an Access entity created offshore pursuant to 

Madoff’s directive, served as the investment manager for Groupement among other roles. AML, 

AP (Lux), and AP (Suisse) each earned fees the Trustee seeks to recover for variously serving as 

the portfolio and investment managers or advisors for Luxalpha and/or Groupement, both of 

which invested essentially all of their assets with Madoff in New York. The Court can properly 

3


Pg 24 of 133 

exercise jurisdiction over every one of the Moving Access Defendants based on these contacts 

with New York. 

The Moving Luxalpha Director Defendants and Defendant Delandmeter are also subject 

to jurisdiction. As detailed below in discussing each individual defendant, the Moving Luxalpha 

Director Defendants and Delandmeter took a number of actions that demonstrate they were 

primary actors with respect to Luxalpha’s investments with BLMIS. These actions included 

opening the account at BLMIS, approving the delegation of custodial and asset management 

authority to BLMIS, and authorizing prospectuses issued to investors, investment reports, and 

payments from the fund to other Defendants, among many other actions. In addition to being a 

Luxalpha director, Delandmeter also met with Madoff in New York and participated in quarterly 

Access meetings that were held in New York regarding the investments at BLMIS, and was 

involved in every major decision that was made with respect to Luxalpha. These numerous, 

significant contacts, which give rise to the Trustee’s claims, render the Moving Luxalpha 

Director Defendants and Delandmeter subject to jurisdiction. 

On top of the Moving UBS Defendants’ and Moving Access Defendants’ numerous 

contacts with New York, each is also properly before this Court based on “mere department” or 

agency theories of jurisdiction, or, in many instances, both jurisdictional bases. The Moving 

UBS Defendants each functioned as mere departments of Defendant UBS AG, which has not 

contested jurisdiction and is unquestionably present in the United States. UBS AG controlled the 

Moving UBS Defendants as parts of and in furtherance of UBS AG’s worldwide, intercompany 

business groups such that the contacts of UBS AG can be fairly imputed to the Moving UBS 

Defendants. Similarly, the Moving Access Defendants were mere departments of Access’s New 

4


Pg 25 of 133 

York office, without which the Moving Access Defendants would have had no purpose and 

would not have been able to exist. 

Luxalpha was also the agent for UBS SA and UBSFSL. Luxalpha, which had no 

employees of its own, was controlled by UBS SA employees for the benefit of UBS SA and was 

dependent on UBS SA and UBSFSL to perform the work for the fund. Under these 

circumstances, Luxalpha’s jurisdictional contacts with New York may be imputed to UBS SA 

and UBSFSL. With regard to the Moving Access Defendants, the jurisdictional contacts of 

Access’s New York office can be imputed to them as their agent because Access’s New York 

office performed many of the Moving Access Defendants’ essential functions, and in many 

instances provided their only employees. 

There are multiple valid bases for the exercise of jurisdiction by this Court over every 

one of the Moving Defendants. It would offend traditional notions of fair play and substantial 

justice to allow the Moving Defendants to escape having to account in the United States for their 

purposeful actions directed here. The suggestion, put forward by the liquidators of Luxalpha, 

that this action should also be dismissed on grounds of forum non conveniens is equally without 

merit. It cannot be said that the Trustee’s motivations for filing suit here were anything but bona 

fide. The United States has the paramount interest in the determining the claims at issue, and 

Luxembourg is not an adequate alternative forum. For all of these reasons, the motions of the 

Moving Defendants must be denied and the Trustee’s claims against them and the other 

Defendants in this action should be allowed to proceed. In the alternative, the Court should 

allow the Trustee to conduct limited jurisdictional discovery. 

5


Pg 26 of 133 

A. Factual Background 

BACKGROUND 

The two BLMIS feeder funds at issue in this adversary proceeding, Luxalpha and 

Groupement, were each joint ventures of Access and UBS. Defendant Patrick Littaye 1 

(“Littaye”) and Thierry Magon de la Villehuchet (“Villehuchet”) co-founded Access in New 

York in 1995 to serve as a bridge between European investors and BLMIS in New York. 2 (Am. 

Compl. 76, 78, 85–86; Declaration of Benjamin D. Pergament, dated August 17, 2012 (the 

“Pergament Decl.”) Ex. 1.) Access was connected to BLMIS because of Littaye’s personal 

relationship with Madoff, which went back to at least 1985. (Am. Compl. 85.) 

In December 2003, Littaye approached UBS SA Managing Director Viviane DeAngelis 

about UBS’s interest in taking over the sponsorship of Access’s Oreades fund from another 

bank. (Pergament Decl. Ex. 2.) Oreades, created in 1997, was a $340 million fund entirely 

invested in BLMIS. (Pergament Decl. Exs. 2, 3.) UBS SA was indeed interested in taking over 

the fund. Before UBS SA could accept Littaye’s proposal, however, it had to persuade its parent 

company in Zurich, UBS AG, to agree. 

6 

(Pergament Decl. Ex. 4; Am. Compl. 41.) 

UBS AG told UBS SA that “we normally have to give “NO” as the answer in cases like 

Madoff,” because “the broker may under no circumstances also be a depository at the same 

1 The Moving Access Defendants state that Littaye “expressly contests the jurisdiction of the United States courts 

for all proceedings in which he is currently involved” and that he “invokes the privilege” found in Article 15 of the 

French Civil Code for “French Nationals to be judged in France.” (Access Mot. at 1.) However, the Moving Access 

Defendants’ counsel do not purport to represent Littaye for purposes of their motion, and Littaye has not moved to 

dismiss for lack of personal jurisdiction. Littaye has thus not properly contested the Court’s jurisdiction, and the 

Trustee reserves all of his rights regarding any challenge by Littaye to the jurisdiction of the Court or any decision 

rendered. 

2 The Court is already familiar with the background facts of the BLMIS liquidation proceeding. In re Bernard L. 

Madoff Inv. Securities LLC, 424 B.R. 122 (Bankr. S.D.N.Y. 2010) (Lifland, J.), aff’d 654 F.3d 229 (2d Cir. 2011) 

(“Net Equity” decision); see also Am. Compl. 48-75. Thus, the history will not be repeated here.


Pg 27 of 133 

time!” (Pergament Decl. Ex. 5 at 2.) UBS would be 

turning over both portfolio management and custodial authority to BLMIS. (Id. at 3.) 

7 

(Id. at 3.) 

(Pergament Decl. Ex. 6.) Oreades was closed and Luxalpha was established, 

with UBS AG and UBS SA serving as its co-sponsors. (Pergament Decl. Ex. 3; Am. Compl. 

18–19.) 

At its inception in February 2004, Luxalpha’s board of directors was composed entirely 

of UBS SA principals, including Moving Luxalpha Director Defendants Hondequin and Kranz, 

as well as Defendant Pierre Delandmeter, a Luxembourg attorney and Access principal. 

(Pergament Decl. Ex. 7 at 21.) The board’s first official resolution directed the opening of a 

BLMIS account in Luxalpha’s name, care of UBS SA. (Pergament Decl. Ex. 8 at 3.) UBS SA 

employees then completed the BLMIS account opening agreements for Luxalpha. (Pergament 

Decl. Ex. 9 at 2–21.) These agreements not only gave wide latitude to BLMIS to make 

investment decisions on behalf of UBS SA and Luxalpha’s investors, they actually transferred 

custodial and portfolio management responsibility of the fund from UBS SA to BLMIS in New 

York. 3 (Id.) UBS SA agreed to this contractual delegation of their responsibilities despite telling 

investors that UBS SA “holds all the liquid assets and securities belonging to the Fund’s assets in 

safekeeping for the shareholders.” (Pergament Decl. Exs. 10 at 15; 11 at 16.) 

Luxalpha never had any of its own employees, but rather was operated, managed and 

supported by UBS AG and its subsidiaries, UBS SA, UBSFSL, and UBSTPM, and their 

partners, New York-based Access and its overseas subsidiaries, the Moving Access Defendants. 

3 Such concentration of power in the hands of Madoff and BLMIS violated the Luxembourg law implementing the 

UCITS fund directives that governed Luxalpha. (Am. Compl. 160; see also id. 128.)


Pg 28 of 133 

As demonstrated below, many of these entities and individuals, working on Luxalpha’s behalf, 

were in regular telephone, written and, in at least the case of Littaye, in-person communication 

with BLMIS. Through their administration and management of Luxalpha from 2004 through 

2008, Luxalpha invested approximately $1.5 billion into account 1FR108 at BLMIS. (See Am. 

Compl. 262 & Ex. B.) Luxalpha also withdrew approximately $766 million from the 

account—in the two years preceding the December 11, 2008 filing date (the “Filing Date”), $743 

million was withdrawn, and in the 90 days preceding the Filing Date, $536 million was 

withdrawn. (Id. 263–65 & Ex. A.) 

The Moving Luxalpha Director Defendants and Delandmeter, as members of Luxalpha’s 

board, enabled the ongoing Luxalpha investment in BLMIS. For example, they approved the 

publication and dissemination of Luxalpha’s sales prospectuses that made no mention of BLMIS 

or the fact that Luxalpha’s board and UBS SA had delegated custodial and portfolio management 

responsibility to BLMIS in New York (Pergament Decl. Exs. 8 at 2; 12; 13 at 3 4 ; see, e.g., 

Pergament Decl. Ex. 10); executed resolutions confirming that Luxalpha was “in conformity 

with the determined investment policy” and “the investment restrictions as mentioned in the 

prospectus,” even though neither the policy nor the prospectus disclosed that UBS SA had 

contracted its custodial duty to BLMIS (Pergament Decl. Exs. 14; 15; see, e.g., Pergament Decl. 

Ex. 10 at 9, 17–22); and authorized resolutions that ensured that various UBS and Access entities 

received their enormous fees from Luxalpha’s investment in BLMIS—the very fees that the 

Trustee now seeks to recover through his subsequent transfer claims. (See, e.g., Pergament Decl. 

Exs. 16, 13.) 

4 Although this board resolution was only produced to the Trustee in an unsigned form, the Trustee believes that the 

Board undertook the actions specified in the document. 

8


Pg 29 of 133 

Meanwhile, by 2005 UBS SA and UBSFSL had begun servicing a second Madoff feeder 

fund, Groupement. (See Baumert Decl. 12 [Bankr. S.D.N.Y. ECF No. 112] Boulat Decl. 12 

[Bankr. S.D.N.Y. ECF No. 111.]) Groupement was created by Access in 2003, and opened its 

account with BLMIS that same year. (Pergament Decl. Exs. 17; 3 at 2.) Although UBS was 

careful to not directly contract with BLMIS with regard to Groupement—even stating in the 

Operating Memorandum, “Not to do [:] Neither [UBS SA] nor UBSFSL should ever enter into a 

direct contract with Bernard Madoff!!!”—UBS SA and UBSFSL, along with Access, directed 

investment activity into BLMIS in New York on behalf of Groupement. (Pergament Decl. Ex. 

18 at 20.) During its lifetime, Groupement invested approximately $492 million into account 

1FR096 at BLMIS. (See Am. Compl. 262 & Ex. C.) Groupement also withdrew 

approximately $356 million from the account—in the two years preceding the Filing Date, $277 

million was withdrawn, and in the 90 days preceding the Filing Date, $260 million was 

withdrawn. (Id. 263–65 & Ex. A.) 

Through it all, UBS and Access ignored numerous indicia of fraud at BLMIS so that they 

could continue to collect fees from Luxalpha and Groupement. As described above, UBS AG 

and the Moving UBS Defendants knowingly made an exception to allow Luxalpha to invest in 

BLMIS despite their prohibition against permitting a broker to be a depository as well, and took 

steps to conceal the fact that they were conducting business with BLMIS through the Luxalpha 

and Groupement funds. Likewise, Access, including the Moving Access Defendants and 

Delandmeter, exempted BLMIS from its ordinary due diligence procedures; was aware that 

BLMIS used a small and unknown auditor; and acquiesced to BLMIS’s unusual practice of only 

reporting trades through delayed paper confirmations. (Am. Compl. 201–08, 231–39.) 

Access was also aware of the impossibility of the option trade volumes reported by BLMIS; 

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Madoff’s implausible market timing ability; the unusual insistence on secrecy; and BLMIS’s 

refusal to identify counterparties for options trades. (Am. Compl. 209–230, 240–47, 249–51.) 

Yet like UBS, Access suppressed concerns about BLMIS in order to keep the profits from 

Madoff’s operation flowing. (Am. Compl. 220–30.) 

Luxalpha and Groupement never had any other investments besides their New York- 

based BLMIS accounts. After BLMIS collapsed, so too did Luxalpha and Groupement. On 

February 24, 2009, the Luxalpha board executed a notice to Luxalpha’s investors updating them 

about developments relating to BLMIS’s collapse. In discussing the claims filing procedure, the 

board advised: “there are numerous factors to consider before filing any claims with the BMIS 

trustee, including the fact that by filing such a claim you will be subjecting yourself to the 

jurisdiction of the US bankruptcy court and, therefore, to potential claw-back claims with respect 

to withdrawals you have made from the Fund.” (Pergament Decl. Ex. 19 (emphasis added).) 

On February 27, 2009, with full knowledge of the jurisdictional consequences of filing 

customer claims, Moving Luxalpha Director Defendants Hondequin and Schroeter executed two 

customer claims on behalf of Luxalpha. The first claim was received by the Trustee on March 2, 

2009 for $1,537,099,731. (Pergament Decl. Ex. 20.) The second claim, identical to the first, 

was filed on March 3, 2009. 5 (Pergament Decl. Ex. 21.) Both claims list “LUXALPHA 

SICAV” as the customer. (Pergament Decl. Exs. 20 at 1; 21 at 1.) Additionally, both claims 

specified the following: 

This customer claim for the Account (1-FR108-3-0) is lodged on behalf of the 

beneficial owner of the Account, LUXALPHA SICAV, a Luxembourg company 

with registered seat at 33a, Avenue J.F. Kennedy in L-1855 LUXEMBOURG. 

LUXALPHA SICAV is a Luxembourg based fund whose agent and custodian is 

UBS (Luxembourg) SA (the Custodian), with a registered seat at 33a, Avenue 

J.F. Kennedy in L-1855 Luxembourg. We understand that the Custodian merely 

5 The Trustee is unaware of the reason why Luxalpha filed duplicative claims. 

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in its function as agent and custodian has also lodged a customer claim on behalf 

of LUXALPHA SICAV, who is the sole beneficial owner, for the Account. 

(Pergament Decl. Exs. 20 at 5; 21 at 5 (emphasis in original).) 

UBS SA filed a third claim, on Luxalpha’s behalf, on March 2, 2009, also for the amount 

of $1,537,099,731. (Pergament Decl. Ex. 22.) 

B. Procedural History 

The Trustee filed his Complaint in this action on November 23, 2010. [Bankr. S.D.N.Y. 

ECF No. 1.] On June 21, 2011 the Moving UBS Defendants, along with non-moving Defendant 

UBS AG, filed a motion to withdraw the reference for the purpose of having the District Court 

hear motions to dismiss the Trustee’s common law claims. [S.D.N.Y. ECF No. 1.] On July 8, 

2011, the Moving Access Defendants and Delandmeter, along with non-moving Defendants 

Access International Advisors LLC (“AIA LLC”), Littaye, Claudine Magon de la Villehuchet 

(“Ms. Villehuchet”), Groupement, and Theodore Dumbauld, filed joinders to the motion to 

withdraw the reference filed by the Moving UBS Defendants and UBS AG. [S.D.N.Y. ECF No. 

6, 8.] On July 11, 2011, Luxalpha also filed a joinder to the motion to withdraw the reference 

filed by the Moving UBS Defendants and UBS AG. [S.D.N.Y. ECF No. 9.] The Trustee then 

stipulated with the withdrawing Defendants to the withdrawal of the reference to the District 

Court. [See S.D.N.Y. ECF No. 10.] 

On August 1, 2011, multiple Defendants, including the Moving UBS Defendants, the 

Moving Luxalpha Director Defendants, the Moving Access Defendants, and Delandmeter moved 

to dismiss the Trustee’s common law claims in the District Court. [S.D.N.Y. ECF No. 16–20.] 

On August 17, 2011, the Trustee filed an Amended Complaint, which included additional 

allegations against the Defendants. [S.D.N.Y. ECF No. 23.] By Order entered on September 7, 

2011, the District Court directed the motions to dismiss to the common law causes of action as 

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set forth in the Amended Complaint. [S.D.N.Y. ECF No. 28.] After briefing of the motions to 

dismiss was completed, on November 1, 2011 the District Court dismissed the common law 

claims for lack of standing, and ordered the remaining claims to be returned to this Court for 

further proceedings. Picard v. UBS AG (In re Bernard L. Madoff Inv. Sec. LLC), 460 B.R. 84 

(S.D.N.Y. 2011). The Trustee appealed the District Court’s dismissal of his common law claims, 

which is currently pending before the Second Circuit. See id., appeal docketed, No. 11-5051 (2d 

Cir. Dec. 7, 2011). The Trustee’s bankruptcy law claims, including initial transfer claims against 

Luxalpha and Groupement and subsequent transfer claims against the other Defendants, are not 

affected by the District Court’s November 1, 2011 order that is now on appeal. 

I. STANDARD OF REVIEW 

ARGUMENT 

A plaintiff need only make a prima facie showing of jurisdiction over a defendant to 

defeat a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 

12(b)(2). See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007); Hoffritz for 

Cutlery Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). Where, as here, no evidentiary 

hearing has been held, the Court must construe all inferences in the Trustee’s favor. See 

DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). Factual allegations contained 

in the complaint must be accepted as true for purposes of the motion except for unsupported 

allegations that are refuted by “direct, highly specific, testimonial evidence” presented by the 

defendant and not countered by the plaintiff. See Schenker v. Assicurazioni Genereali S.p.A., 

Consol., No. 98 Civ. 9186 (MBM), 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002). Here, no 

such affidavits have been submitted. Rather, as discussed infra., the affidavits contain little more 

than conclusory, self-serving statements contradicted by the Amended Complaint and the 

documents referenced herein. 

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In addition to the complaint, a plaintiff may rely on affidavits and supporting materials, in 

addition to pleadings, to meet its burden of a prima facie showing. See Pilates, Inc. v. Pilates 

Inst., Inc., 891 F. Supp. 175, 178 n.2 (S.D.N.Y. 1995) (“[A]ll pertinent documentation submitted 

by the parties may be considered in deciding the motion.”); In re Tamoxifen Citrate Antitrust 

Litig., 262 F. Supp. 2d 17, 21 (E.D.N.Y. 2003) (citing Marine Midland Bank, N.A. v. Miller, 664 

F.2d 899, 904 (2d Cir. 1981)). “Such pleadings and affidavits must be construed in the light 

most favorable to the plaintiffs, and all doubts must be resolved in plaintiffs’ favor.” In re 

Tamoxifen, 262 F. Supp. 2d at 21 (citing Hoffritz, 763 F.2d at 57.). 6 

II. STANDARD FOR DETERMINING PERSONAL JURISDICTION 

Under Rule 7004(f) of the Federal Rules of Bankruptcy Procedure, a court shall have 

personal jurisdiction over a defendant provided that “the exercise of jurisdiction is consistent 

with the Constitution and laws of the United States.” Fed. R. Bankr. P. 7004(f) (2010); see also 

GMAM Inv. Funds Trust I v. Globo Comunicações e Participações S.A. (In re Globo 

Comunicações e Participações S.A.), 317 B.R. 235, 251 (Bankr. S.D.N.Y. 2004). This analysis 

entails a two-step inquiry: 

First, the court must establish that the defendant has sufficient “contacts with the forum 

state to justify the court’s exercise of personal jurisdiction.” Chloe v. Queen Bee of Beverly 

Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 

316 (1945)). Rule 7004(f) requires “minimum contacts” with the United States, rather than with 

any particular state. See Anheuser-Busch, Inc. v. Paques, Inc. (In re Paques, Inc.), 277 B.R. 615, 

633 (Bankr. E.D. Pa. 2000); see also Picard v. Chais (In re Bernard L. Madoff Inv. Sec. LLC), 

6 When deciding a Rule 12(b)(2) motion, a “court may consider affidavits and documents submitted by the parties 

without converting the motion into one for summary judgment under Rule 56.” ESI, Inc. v. Coastal Corp., 61 F. 

Supp. 2d 35, 50 n.54 (S.D.N.Y. 1999). 

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440 B.R. 274, 278 (Bankr. S.D.N.Y. 2010) (Lifland, J.) (“Chais”); Federalpha Steel LLC v. Fed. 

Pipe & Steel Corp. (In re Federalpha Steel LLC), 341 B.R. 872, 887 (Bankr. N.D. Ill. 2006) (The 

Bankruptcy Rules permit “worldwide service of process, limited only by the due process clause 

of the Fifth Amendment.” (internal citation omitted)). 

Courts undertaking this analysis distinguish between specific and general jurisdiction. 

Specific jurisdiction exists when “a State exercises personal jurisdiction over a defendant in a 

suit arising out of or related to the defendant’s contacts with the forum.” Chloe, 616 F.3d at 164 

(quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n.8 (1984)). 

The exercise of specific jurisdiction is also appropriate when a foreign defendant, “through an 

act performed elsewhere, causes an effect in the United States.” Eskofot A/S v. E.I. Du Pont De 

Nemours & Co., 872 F. Supp. 81, 87 (S.D.N.Y. 1995). The act must be “expressly aimed” at the 

forum to support the exercise of specific jurisdiction. Calder v. Jones, 465 U.S. 783, 789–90 

(1984). By contrast, general jurisdiction “is based on the defendant’s general business contacts 

with the forum state and permits a court to exercise its power in a case where the subject matter 

of the suit is unrelated to those contacts.” Chloe, 616 F.3d at 164 (citing Helicopteros, 466 U.S. 

at 414–15 & n.9). 

Second, if the court is satisfied that there are sufficient minimum contacts, it must then 

assess whether the exercise of personal jurisdiction would be reasonable under the circumstances 

such that the exercise comports with “traditional notions of fair play and substantial justice.” Id., 

616 F.3d at 164 (citing Int’l Shoe Co., 326 U.S. at 316). 

As demonstrated below, each of the Moving Defendants is subject to the Court’s specific 

jurisdiction, because each of the Moving Defendants has minimum contacts with the United 

States. The Trustee’s claims against each Moving Defendant arise out of each Moving 

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Defendant’s contacts with the forum, and it is reasonable to subject each Moving Defendant to 

suit in the United States. 

Jurisdiction is also appropriate over each Moving Defendant under New York’s long arm 

statute, Civil Practice Law and Rules § 302(a)(1). N.Y. C.P.L.R. 302(a)(1) (MCKINNEY 2009) 

(“CPLR”). Under CPLR 302, personal jurisdiction exists where the defendant “transacts 

business” in New York. A single transaction is sufficient for specific jurisdiction, even if the 

defendant never enters the state, “so long as the defendant’s activities here were purposeful and 

there is a substantial relationship between the transaction and the claim asserted.” Kinetic 

Instruments, Inc. v. Lares, 802 F. Supp. 976, 982 (S.D.N.Y. 1992) (quoting Kreutter v. 

McFadden Oil Corp., 522 N.E.2d 40, 43 (N.Y. 1988)); see also Richard Feiner & Co., Inc. v. 

BMG Music Spain, S.A., No. 01 Civ. 0937 (JSR), 2003 WL 740605, at *2 (S.D.N.Y. 2003) (“it is 

clear that § 302(a)(1) is a ‘single act statute’”). Because CPLR 302 does not reach as far as the 

Constitution permits, contacts sufficient to establish personal jurisdiction in New York will 

satisfy the requirement of minimum contacts with the United States. See Chais, 440 B.R. at 

280. 7 

A. Imputation of Personal Jurisdiction to Foreign Parties Closely Related to 

Parties Present in the Forum 

In addition, where a foreign party is not present in New York, the jurisdictional presence 

of a related party may be imputed to the foreign party in two circumstances: (1) where one entity 

is the “mere department” of the other entity, or (2) where one of the entities acts as the agent of 

7 Likewise, a foreign corporation is subject to this Court’s general jurisdiction under CPLR 301 “if it is engaged in 

such a continuous and systematic course of ‘doing business’ here as to warrant a finding of its presence.” Dorfman 

v. Marriott Int’l Hotels, Inc., No. 99 Civ. 10496 (CSH), 2002 WL 14363, *2 (S.D.N.Y. Jan. 3, 2002). 

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the other entity. See Drucker Cornell v. Assicurazioni Generali S.p.A., Consol., No. 97 Civ. 

2262 (MBM), 2000 WL 284222, *3 (S.D.N.Y. Mar. 16, 2000). 8 

1. Mere Department Jurisdiction 

“A corporation is deemed a mere department of another corporation if the latter’s control 

is so pervasive that the corporate separateness is more a formality than a reality.” In re Levant 

Line, S.A., 166 B.R. 221, 231 (Bankr. S.D.N.Y. 1994). When analyzing whether one entity is a 

“mere department” of another, courts typically analyze the following four factors: (1) common 

ownership; (2) the financial interdependence of the entities; (3) the degree to which the parent 

company interferes in the selection and assignment of the subsidiary’s personnel and fails to 

observe corporate formalities; and (4) the extent to which the parent company exercises control 

over the marketing and operational policies of the subsidiary. Erick Van Egeraat Associated 

Architects B.V. v. NBBJ LLC, No. 08 Civ. 7873, 2009 WL 1209020, at *2 (S.D.N.Y. Apr. 29, 

2009) (citing Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d 

Cir. 1984)). Common ownership is the only essential factor. Beech Aircraft, 751 F.2d at 120. 

Consideration of the other factors “necessitates a balancing process, and not every factor need 

weigh entirely in the plaintiffs’ favor.” ESI, Inc., 61 F. Supp. 2d at 51–52; see also Dorfman, 

2002 WL 14363, at *7. As set forth below, each of the Moving UBS Defendants is subject to the 

Court’s jurisdiction because it is a mere department of corporate parent UBS AG, an entity that 

is present in New York and subject to the Court’s general jurisdiction. In addition, each of the 

Moving Access Defendants is subject to the Court’s jurisdiction because it is a mere department 

of Access’s New York office, which is also subject to the Court’s general jurisdiction. 

8 The distinction between the agency and mere department tests “is not always great.” Mayatextil, S.A. v. Liztex 

U.S.A., Inc., No. 92 Civ. 4528 (SS), 1995 WL 131774, at *4 (S.D.N.Y. Mar. 23, 1995). “Ultimately, the important 

issue in evaluating jurisdiction is that of fairness.” Palmieri v. Estefan, 793 F. Supp. 1182, 1193–94 (S.D.N.Y. 

1992). 

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2. Agency Jurisdiction 

“To establish that a corporation doing business in New York is an agent of a related 

foreign corporation, the plaintiff must show that the former does all the business which [the 

foreign corporation] could do were it here by its own officials.” Dorfman, 2002 WL 14363, at 

*3 (citation and internal quotations omitted) (alteration in original); see also Palmieri, 793 F. 

Supp. at 1190. The Second Circuit has stated that the New York entity must “provide[] services 

beyond ‘mere solicitation’ and these services [must be] sufficiently important to the foreign 

corporation that if it did not have a representative to perform them, the corporation’s own 

officials would undertake to perform substantially similar services.” Wiwa v. Royal Dutch 

Petrol. Co., 226 F.3d 88, 95 (2d Cir. 2000); see also Gelfand v. Tanner Motor Tours, Ltd., 385 

F.2d 116, 121 (2d Cir.1967). 

An agency relationship also exists between entities “engaged in a single business 

enterprise that relies on the joint efforts” of each of the entities, which are “coordinated and 

controlled” by the parent entity. Dorfman, 2002 WL 14363, at *11. Moreover, “[t]he 

interrelatedness of the corporations is the factor on which the courts have focused, rather than on 

the ‘control’ of one by the other.” Palmieri, 793 F. Supp. at 1193. Ultimately, for purposes of 

the agency test, courts “look to realities rather than to formal relationships.” Bulova Watch Co. 

v. Hattori & Co., 508 F. Supp. 1322, 1334 (E.D.N.Y. 1981). 

As set forth below, several of the Moving Defendants are subject to jurisdiction because 

of their agency relationship with other Defendants in this action. Moving Defendants UBS SA 

and UBSFSL created, operated, and administered Luxalpha as a fee-generating portal in the 

United States, such that Luxalpha’s contacts with the United States should be imputed to each of 

them. Moving Defendant UBSTPM operated as little more than a shell entity controlled by UBS 

SA with respect to Luxalpha, such that UBS SA’s contacts with the forum should be imputed to 

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UBSTPM for purposes of jurisdiction. Likewise, each of the Moving Access Defendants is 

subject to the Court’s jurisdiction as Access’s New York office acted as its agent in New York. 

Additionally, under CPLR 302(a)(1), “a court may exercise personal jurisdiction over any 

non-domiciliary . . . who in person or through an agent . . . transacts any business within the 

state.” (emphasis added). Further, a corporation can act as the agent of a corporate officer and 

subject the officer to personal jurisdiction under CPLR 302(a)(1). See Retail Software Servs., 

Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir. 1988); In re Sumitomo Copper Litig., 120 F. Supp. 2d 

328, 337 (S.D.N.Y. 2000). Jurisdiction through agency is properly found if the corporate entity 

“engaged in purposeful activities with this state in relation to [the] transaction for the benefit of 

and with the knowledge and consent of” the individual and the individual “exercised some 

control over” the corporate entity in the matter. Kreutter, 522 N.E.2d at 47-48 (asserting 

jurisdiction over foreign individual who operated company that was party to the transactions in 

dispute). As detailed below, each of the Moving Luxalpha Director Defendants, as well as 

Delandmeter, is subject to jurisdiction because of the significant control he exerted over 

Luxalpha during his service on Luxalpha’s board, such that Luxalpha’s contacts with the forum 

should be imputed to him. 

III. THE COURT HAS PERSONAL JURISDICTION OVER THE MOVING 

DEFENDANTS 

Each of the Moving Defendants is subject to the Court’s jurisdiction because of his or its 

purposeful and systematic direction of investment activity into BLMIS in New York through the 

feeder funds Luxalpha and/or Groupement, and the servicing of this activity. The following 

chart provides an overview of the bases for the Court’s jurisdiction over each Moving Defendant: 

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Luxalpha � Consented to personal jurisdiction by filing customer claims 

� Maintained contacts with New York giving rise to specific jurisdiction 

UBS SA and 

UBSFSL 

� Waived right to contest jurisdiction through participation in this proceeding 


� Used Luxalpha as their agent in New York 

� Were mere departments of UBS AG 


UBSTPM � Maintained contacts with New York giving rise to specific jurisdiction 

� Used UBS SA as its agent in New York 

� Was a mere department of UBS AG 

Hondequin, 

Kranz, Egger, 

and Schroeter 

AIA Europe, 

AIA Ltd., AP 

(Lux), and AP 

(Suisse) 

AML (f/k/a 

AIA (Lux)) 



� Used Luxalpha as their agent in New York 



� Used Access’s New York office as their agent in New York 

� Were mere departments of Access’s New York office 



� Used Access’s New York office as its agent in New York 

� Was a mere department of Access’s New York office 

� Filed suit against the Trustee abroad, subjecting it to jurisdiction in the U.S. 


Delandmeter � Maintained contacts with New York giving rise to specific jurisdiction 

� Used Luxalpha as his agent in New York 

� Filed suit against the Trustee abroad, subjecting it to jurisdiction in the U.S. 


A. The Court Has Personal Jurisdiction over Luxalpha 

1. Luxalpha Consented to the Court’s Jurisdiction by Filing Customer 

Claims 

The Court’s personal jurisdiction inquiry need go no further than the claims filed by 

Luxalpha. It is black-letter law that “[i]n a bankruptcy case, personal jurisdiction over a foreign 

defendant exists when a defendant consents to jurisdiction by filing a proof of claim.” 9 Aurora 

Mgmt. Partners, Inc. v. GC Fin. Servs., Inc. (In re Protected Vehicles, Inc.), 429 B.R. 856, 861 

9 This principle applies equally to SIPA actions. Picard v. Stahl (In re Bernard L. Madoff), 443 B.R. 295, 310 

(Bankr. S.D.N.Y. 2011) (“A customer claim filed in a SIPA action is equivalent to a proof of claim filed in a typical 

bankruptcy proceeding for purposes of submission to jurisdiction.” (citing Keller v. Blinder (In re Blinder Robinson 

& Co., Inc.), 135 B.R. 892, 896–97 (D. Col. 1991))). 

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(Bankr. D.S.C. 2010) (citing Picard v. Cohmad Sec. Corp. (In re Bernard L. Madoff Inv. Sec. 

LLC), 418 B.R. 75, 79 (Bankr. S.D.N.Y. 2009) (“Cohmad”)); see also Luan Inv., S.E. v. Franklin 

145 Corp. (In re Petrie Retail, Inc.), No. 95B44528 (AJG), 2001 WL 826122, at *7 (S.D.N.Y. 

July 19, 2001) (affirming bankruptcy court’s holding that creditor had submitted to court’s 

personal jurisdiction by filing a proof of claim); Cruisephone, Inc. v. Cruise Ships Catering & 

Servs. N.V. (In re Cruisephone, Inc.), 278 B.R. 325, 330 (Bankr. E.D.N.Y. 2002) (“The filing of 

a proof of claim by a creditor is . . . a submission to the bankruptcy court’s jurisdiction to 

establish that creditor’s right to participate in the distribution of the bankruptcy estate.”). Once a 

foreign defendant has filed a claim, there is no need for additional consideration of due process 

or any long-arm statute. In re Bailey & Assocs., Inc., 224 B.R. 734, 738 (Bankr. E.D. Mo. 1998) 

(“Clearly, any defendant who has filed a proof of claim in Debtors’ bankruptcy has the minimum 

contacts . . . necessary to confer personal jurisdiction of that defendant to this Court.”); 

Lombard-Wall Inc. v. N.Y.C. Hous. Dev. Corp. (In re Lombard-Wall, Inc.), 44 B.R. 928, 936 

(Bankr. S.D.N.Y. 1984) (“The filing of a proof of claim constitutes consent to bankruptcy court 

jurisdiction over the debtor-in-possession’s objections or counterclaims that are necessary for 

adjudication of the claim.”). 

By filing claims in the SIPA proceeding, Luxalpha consented to this Court’s jurisdiction 

for the purposes of this avoidance action, and it did so knowingly. (See Pergament Decl. Ex. 19 

(notice from Luxalpha’s board to its shareholders advising them that “by filing such a claim you 

will be subjecting yourself to the jurisdiction of the US bankruptcy court and, therefore, to 

potential claw-back claims with respect to withdrawals you have made from the Fund.”).) 

Luxalpha cannot, on the one hand, seek relief from this Court with respect to its claim against the 

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estate while, on the other hand, denying the Court’s jurisdiction to adjudicate the estate’s 

avoidance action against it. 

2. Luxalpha’s Proposed Exceptions to the Rule Regarding Claims Do 

Not Apply 

In addition to admitting to its shareholders that filing a claim subjects the claimant to the 

jurisdiction of this Court, Luxalpha acknowledges in its brief that filing a claim normally 

constitutes consent to jurisdiction, but Luxalpha asserts that there are exceptions to this rule if a 

creditor: (1) contests jurisdiction prior to filing the claim, or (2) files the claim for defensive 

reasons. (Luxalpha Mot. at 6–8.) These arguments are unavailing. 

The first purported exception is inapplicable because Luxalpha does not assert that it 

contested to jurisdiction prior to filing its two claims in March 2009. 10 (See Luxalpha Mot. at 6– 

8.) The second purported exception, that a claim is not a submission to jurisdiction if it is filed 

for “defensive reasons,” is also inapplicable. Luxalpha depends on In re Kirchoff Frozen Foods, 

Inc. as support for this contention. 11 See Dexter v. Gilbert (In re Kirchoff Frozen Foods, Inc.), 

496 F.2d 84 (9th Cir. 1974). Luxalpha argues that its claims were “defensive” like those in 

Kirchoff because its claims were filed to limit liability to Luxalpha’s investors. 12 (Luxalpha Mot. 

at 7–8.) Unlike the purported creditor in Kirchoff, however, Luxalpha did not file its claims after 

10 Consequently, Luxalpha’s reliance on In re Castlerock Properties is misplaced. See Piombo Corp. v. Castlerock 

Props. (In re Castlerock Props.), 781 F.2d 159, 161 (9th Cir. 1986). In that case, the debtor asserted state law 

claims against the creditor before that creditor had filed a proof of claim. The creditor objected to the bankruptcy 

court’s jurisdiction and filed a proof of secured claim only after the bankruptcy court had denied that objection. Id. 

at 162–63. On appeal, the court held that the creditor had not evidenced its consent to jurisdiction because the 

creditor would not have filed the claim had the bankruptcy court declined jurisdiction. Id. 

11 Luxalpha also cites In re PNP Holdings Corp., a case in which the court acknowledges the holding in Kirchoff but 

ultimately holds that the defendant consented to personal jurisdiction by filing a claim. Tucker Plastics, Inc. v. Pay 

‘N Pak Stores, Inc. (In re PNP Holdings Corp.), 184 B.R. 805, 807 (B.A.P. 9th Cir. 1995). 

12 Luxalpha also argues that it did not consent to jurisdiction because UBS employees filed Luxalpha’s customer 

claims. But it is undisputed that Moving Luxalpha Director Defendants Schroeter and Hondequin signed Claim 

Nos. 4419 and 5725 in Luxalpha’s name for Luxalpha’s BLMIS account, and that these claims belong to Luxalpha. 

(See Pergament Decl. Exs. 20, 21.) 

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Trustee initiated this adversary proceeding. Rather, Luxalpha affirmatively sought relief from 

this Court—to recover $1,537,099,731—before the Trustee filed this adversary proceeding. 

(Pergament Decl. Exs 20, 21.) Accordingly, by affirmatively seeking relief in this Court, 

Luxalpha has consented to this Court’s jurisdiction, and Luxalpha’s proffered “exceptions” do 

not apply. 

3. In the Alternative, the Trustee Has Made a Prima Facie Showing of 

Personal Jurisdiction over Luxalpha 

The claims filed by Luxalpha (filed with the knowledge that it was subjecting itself to the 

jurisdiction of this Court) obviate the need for the Court to engage in any further analysis. Even 

under the traditional analysis, however, it is clear that this Court has personal jurisdiction over 

Luxalpha. 

a. Luxalpha Purposefully Directed Activity Towards New York 

and Availed Itself of the Privilege of Those Activities 

The completion of Luxalpha’s account opening agreements with BLMIS (performed by 

UBS SA employees acting on behalf of Luxalpha), which anticipated that securities trading 

activities would take place in New York and one of which contained a New York choice of law 

clause, illustrate that Luxalpha purposefully directed activity toward this forum. (Am. Compl. 

260–61; Pergament Decl. Ex. 9 at 2–21.) These facts alone suffice as a prima facie showing of 

personal jurisdiction. See Cohmad, 418 B.R. at 80–81 (finding personal jurisdiction where 

defendants opened BLMIS accounts, executed Customer Agreements with New York choice of 

law clauses, sent correspondence to the United States, and directed transfers to and from the 

BLMIS accounts); Chais, 440 B.R. at 279 (finding personal jurisdiction where defendants 

maintained BLMIS accounts and received funds from those accounts); Sunward Elecs., Inc. v. 

McDonald, 362 F.3d 17, 23 (2d Cir. 2004) (“A choice of law clause is a significant factor in a 

personal jurisdiction analysis because the parties, by so choosing, invoke the benefits and 

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protections of New York law.”); Chase Manhattan Bank v. Banque Generale Du Commerce, No. 

96 Civ. 5184 (KMW), 1997 WL 266968, at *2 (S.D.N.Y. May 20, 1997) (“[A] choice of law 

provision may constitute a significant contact with the forum state” and “is relevant in 

determining whether a defendant has purposefully availed itself of a particular forum’s laws.” 

(internal citation and quotations omitted)). 

Luxalpha continued to direct activity to New York—and to avail itself of the resulting 

privileges and benefits of New York and its laws—by maintaining its BLMIS account until 

Madoff’s arrest on December 11, 2008. (See Am. Compl. 35.) During the life of that account, 

Luxalpha directed approximately $1.5 billion to BLMIS’s New York bank account for 

investment in U.S. securities, and withdrew approximately $766 million from BLMIS. (Id. 

262–263 & Exs. A & B.) These extensive and regular investment activities constitute additional 

contacts between Luxalpha and New York that subject Luxalpha to jurisdiction. 

b. The Causes of Action Arise out of and Relate to Luxalpha’s 

Contacts with New York 

“An action arises out of contacts with the forum if, ‘but for’ those contacts, the cause 

would not have arisen.” Chais, 440 B.R. at 280 (quoting Farmers Ins. Exch. v. Portage La 

Prairie Mut. Ins. Co., 907 F.2d 911, 914 (9th Cir. 1990)); see also Sole Resort, S.A. de C.V. v. 

Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006) (noting that New York courts 

require “some articulable nexus between the business transacted and the cause of action sued 

upon” for jurisdiction under CPLR § 302(a)(1)). In Chais, this Court held that “but for transfers 

of BLMIS funds to and from [the defendant’s] BLMIS brokerage accounts or other United States 

bank accounts, there could be no fraudulent transfer claims against her.” 440 B.R. at 279–80. 

Similarly, Luxalpha would not have received transfers from BLMIS, and this recovery action 

would not have arisen, but for the above-described contacts. 

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B. The Court Has Personal Jurisdiction over the Moving UBS Defendants and 

the Moving Luxalpha Director Defendants 

The Moving UBS Defendants created Luxalpha and operated and serviced Luxalpha and 

Groupement in order to direct business to New York. Likewise, the Moving Luxalpha Director 

Defendants played vital roles in the creation, operation, and management of Luxalpha. This 

lawsuit directly bears on their actions. 

1. UBS SA is Subject to Jurisdiction Because it Purposefully Directed 

Investment Activity to BLMIS in New York 

Contrary to UBS SA’s assertions, its significant, long-standing, and numerous contacts 

with BLMIS in New York give rise to the prima facie showing necessary to sustain jurisdiction 

over it. (See UBS Mot. at 25–33). UBS SA created and sponsored Luxalpha for the sole 

purpose of funneling investments into BLMIS in New York, opened Luxalpha’s account at 

BLMIS, served as Luxalpha’s official custodian and portfolio manager, among other roles, and 

served as Groupement’s prime bank to facilitate Groupement’s BLMIS investments. UBS SA 

also contracted and regularly communicated with BLMIS in New York, regularly transferred 

money to and from New York, and earned substantial fees from Luxalpha and Groupement 

based on assets under management at BLMIS. These contacts with the forum, among others, 

easily satisfy the minimum contacts required for the Court’s exercise of personal jurisdiction. 

See Picard v. Maxam Absolute Return Fund, L.P. (In re Bernard L. Madoff Inv. Sec. LLC), 460 

B.R. 106, 117 (Bankr. S.D.N.Y. 2011) (“Maxam”) (finding that as a result of defendant’s 

“directing investments to the United States, the Court cannot escape the conclusion that it has 

specific jurisdiction over [the defendant]”); Cohmad, 418 B.R. at 80–81 (holding foreign 

defendants had sufficient minimum contacts because they entered into a Customer Agreement to 

open BLMIS accounts and “continuously sent correspondence to the United States to direct 

transfers and withdrawals to and from these accounts”); Chais, 440 B.R. at 278 (noting that 

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“foreign defendants who profited by their maintenance of BLMIS accounts and receipt of 

transfers subjected themselves to personal jurisdiction of this Court with regard to the Trustee’s 

claims arising from such transfers”). 

a. UBS SA was Responsible for the Formation of Luxalpha, and 

Opened the Luxalpha Account at BLMIS in New York 

UBS SA formed Luxalpha in February 2004 in order to invest with BLMIS in New York. 

(See Pergament Decl. Ex. 7; Am. Compl. 85.) On the day of Luxalpha’s incorporation, 

Luxalpha’s newly constituted board executed a resolution to open an account with BLMIS in the 

name of Luxalpha, care of UBS SA. (Pergament Decl. Ex. 8 at 3.) One month later, on March 

18, 2004, UBS SA delivered signed BLMIS account opening documents for Luxalpha to BLMIS 

in New York. (Pergament Decl. Ex. 9.) These Luxalpha account opening documents included: 

(1) Customer Agreement, which established the Luxalpha account at BLMIS in New York, (2) 

an Option Agreement, (3) a Trading Authorization Limited to Purchases and Sales of Securities 

and Options, which delegated asset management authority to BLMIS in New York, and (4) a 

Sub-Custodian agreement, which delegated custodial authority to BLMIS in New York. (Id.) 

Each of these contracts with BLMIS was signed by a high-level UBS SA employee. (Id.) 

That UBS SA signed BLMIS account opening documents on behalf of Luxalpha alone 

suffices as a prima facie showing of minimum contacts with New York. See Cromer Fin. Ltd. v. 

Berger, 137 F. Supp. 2d 452, 476 (S.D.N.Y. 2001) (holding that sufficient minimum contacts 

existed where defendant “signed a contract to serve as the administrator of a Fund which, while 

technically operating as an offshore-fund, was entirely managed out of New York”). This 

finding of minimum contacts is bolstered by the fact that the Customer Agreement opening the 

Luxalpha account contains a New York choice of law clause. See Cohmad, 418 B.R. at 80–81; 

Sunward Elecs., Inc., 362 F.3d at 23. 

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UBS SA argues that its actions with respect to BLMIS should be discounted because the 

actions were performed or made on behalf of Luxalpha. (UBS Mot. at 31–32.) But UBS SA 

created Luxalpha for the purpose of investing in BLMIS in New York, established an account 

with BLMIS in New York on behalf of Luxalpha, and entered into contracts and communicated 

with BLMIS and Access in New York all to earn fees from investment activity that flowed from 

Luxalpha into BLMIS. These are the very fees that the Trustee seeks from UBS SA through its 

subsequent transfer causes of action. Actions taken by UBS SA and its personnel on behalf of 

Luxalpha can obviously be taken into account when determining whether UBS SA has the 

minimum contacts required for jurisdiction. See Maxam, 460 B.R. at 118 (exercising specific 

jurisdiction over foreign defendant with respect to money subsequently transferred to it where 

defendant “directed investments to the United States”); see also In re Med-Atlantic Petrol. Corp., 

233 B.R. 644, 657 (Bankr. S.D.N.Y. 1999) (“Courts look at the totality of the circumstances in 

order to determine whether or not the defendant engaged in some purposeful activity in New 

York in connection with the matter in controversy.” (internal quotations and citation omitted)). 

b. UBS SA Contracted with BLMIS in New York Regarding the 

Custody of Funds in Luxalpha 

In addition to signing the BLMIS account opening documents, UBS SA assumed the role 

of Luxalpha’s custodian from the establishment of Luxalpha in 2004 through its collapse at the 

end of 2008. (Pergament Decl. Exs. 10 at 7; 11 at 7.) In reality, however, UBS SA had 

contracted with BLMIS in New York to serve as custodian pursuant to the Sub-Custodian 

Agreement with BLMIS. (Pergament Decl. Ex. 9 at 18.) This Agreement provides that BLMIS 

is to be the “exclusive trader,” and further provides that BLMIS will “receive and keep on 

deposit . . . the Assets that the Fund[] shall own” and will “be solely entrusted with carrying out 

all operations concerning the Assets.” (Id. at 18–19.) The Sub-Custodian Agreement between 

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UBS SA and BLMIS made Madoff the actual custodian of Luxalpha investor money, and this 

delegation as well as the contract itself creates minimum contacts with BLMIS in New York. 13 

c. UBS SA Contracted with BLMIS and AIA LLC in New York 

Regarding Luxalpha’s Portfolio Management 

UBS SA is further subject to jurisdiction because of its official role as Luxalpha’s 

portfolio manager from 2004 to 2006. (Am. Compl. 19; Pergament Decl. Exs. 10 at 7; 23.) 

During this time, UBS SA not only directed the entire portfolio into BLMIS, it also contracted 

with BLMIS and AIA LLC in New York to perform the actual work of managing and advising 

on the portfolio, thus availing itself of the forum and subjecting itself to jurisdiction here. 

UBS SA contractually delegated asset management authority to BLMIS in New York 

through the Trading Authorization Limited to Purchases and Sales of Securities and Options. 

(Pergament Decl. Ex. 9 at 7–9.) UBS SA also entered into a Portfolio Advisory Agreement 

dated August 11, 2004 with New York-based AIA LLC. (Pergament Decl. Ex. 24.) Through this 

contract, UBS SA agreed to pay AIA LLC $100,000 a year for portfolio advisory services 

provided to UBS SA as portfolio manager. (Id. at 7.) By contracting with New-York based 

BLMIS and AIA LLC to perform the portfolio management and advisory work, UBS SA availed 

itself of this forum, subjecting it to jurisdiction here. 14 

13 UBS SA argues that a clause in the Sub-Custodian Agreement, which provides that the agreement is to be 

governed by Luxembourg law, and that disputes relating to the Sub-Custodian Agreement be heard in Luxembourg, 

cuts against a finding of jurisdiction in New York. (UBS Mot. at 32.) But the Sub-Custodian Agreement itself is not 

in dispute, and the agreement by its very existence creates contacts with New York. 

14 In addition to its roles as custodian and portfolio advisor, UBS SA also served as the co-sponsor of Luxalpha, 

along with UBS AG, from the fund’s inception through its collapse. (Pergament Decl. Exs. 25, 26.) As co-sponsor, 

UBS SA was responsible for the creation of the fund, and was responsible for providing compensation for damages 

sustained by third parties as a result of fault in the management or administration of the fund. (Am. Compl. 130, 

133.) In addition, UBS SA also served as Luxalpha’s distributor throughout the life of the fund, 

(Pergament Decl. Exs. 10 at 7; 11 

at 7; 27 at 2.) UBS SA served as sponsor and distributor with full knowledge that Luxalpha’s sole purpose was to 

facilitate the movement of funds into BLMIS in New York, and thus served to direct investment activity to this 

forum. 

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d. UBS SA Regularly Moved Luxalpha Investor Money Into and 

Out of BLMIS in New York Through its United States Bank 

Account 

Consistent with the Sub-Custodian agreement, UBS SA regularly moved investor money 

into and out of BLMIS in New York, including through the use of a correspondent bank account 

at UBS AG in Stamford, Connecticut. When a Luxalpha investor provided money to subscribe 

into the fund, UBS SA was responsible for moving the funds to the sub-custodian, BLMIS. (See 

Pergament Decl. Ex. 28 at 13.) Investors who wished to invest in Luxalpha through U.S. dollar 

subscriptions were asked to wire money into UBS SA’s account at UBS AG’s Stamford Branch. 

(Pergament Decl. Ex. 29 at 2.) UBS SA then directed subscription moneys to a BLMIS account 

at JPMorgan in New York. (Pergament Decl. Exs. 28 at 13; 9 at 22.) Likewise, UBS SA 

processed investor redemptions from BLMIS, and paid the money to investors. (Pergament 

Decl. Ex. 28 at 12.) All Luxalpha redemptions were requested from BLMIS by UBS SA and 

processed through UBS SA’s account at UBS AG’s Stamford Branch. (See, e.g., Pergament 

Decl. Ex. 30.) 

From Luxalpha’s inception in 2004 through the collapse of BLMIS in 2008, UBS SA 

executed numerous transfers between Luxalpha and BLMIS, representing over a billion dollars 

in investor funds. (See Am. Compl. Ex. B.) By directing these transfers into and out of New 

York, and by maintaining a correspondent bank account in the United States for the facilitation 

of these transfers, UBS SA is subject to this Court’s jurisdiction. See Chais, 440 B.R. at 279–80 

(jurisdiction is proper where claims are “inextricably related . . . [to] transfers of BLMIS funds to 

and from [Defendant’s] BLMIS brokerage accounts or other United States bank accounts”); Dale 

v. Banque SCS Alliance S.A., No. 02 Civ. 3592 (RCC) (KNF), 2005 WL 2347853, at *3 

(S.D.N.Y. Sept. 22, 2005) (holding that jurisdiction existed where the defendant “maintain[ed] 

several correspondent bank accounts in New York that it used to effect a number of the funds 

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transfers that [were] the subject of th[e] action”); Indosuez Int’l. Fin. B.V. v. Nat’l. Reserve Bank, 

774 N.E.2d 696, 701 (N.Y. 2002) (holding defendant’s maintenance of a New York bank 

account for payments related to the dispute sufficed for the assertion of personal jurisdiction); 

Banque Generale Du Commerce, 1997 WL 266968, at *2 (“[A] cause of action arising out of a 

transaction involving the use of a correspondent account [in New York] may confer jurisdiction 

over defendant in New York.” (emphasis in original)). 

e. UBS SA Personnel Regularly Communicated with BLMIS 

Employees in New York Regarding Luxalpha 

Further supporting the jurisdictional nexus, UBS SA personnel regularly communicated 

with BLMIS employees in New York regarding Luxalpha. UBS SA’s own records show that 

BLMIS sent UBS SA copies of trade and account information, including mid-month transaction 

information and monthly account statements. (Pergament Decl. Exs. 28 at 13; 31.) Further, 

BLMIS records reveal that UBS SA personnel regularly communicated with BLMIS, including 

with regard to “mismatched” trade tickets, tax issues, and missing account statements, and that 

these communications continued through the day of Madoff’s arrest. 15 These communications 

demonstrate the consistent nature of the relationship that existed between UBS SA and BLMIS. 

They were made in furtherance of UBS SA’s business relationship with BLMIS, pursuant to 

which UBS SA earned fees from Luxalpha which the Trustee now seeks to recover. See 

Cohmad, 418 B.R. at 80–81 (holding foreign defendants had sufficient minimum contacts where 

they “continuously sent correspondence to the United States to direct transfers and withdrawals 

to and from these accounts”); Golden Archer Investments, LLC v. Skynet Financial Systems, No. 

15 The customer files of BLMIS demonstrate regular fax communication between UBS SA and BLMIS. (See, e.g., 

Pergament Decl. Exs. 32, 30.) In addition, a preliminary review of BLMIS’s phone system suggests at minimum 21 

calls between UBS SA and BLMIS from October 2005 through the day of Madoff’s arrest in December 2008, and at 

least 4 calls between UBSFSL and BLMIS during this period. (Pergament Decl. Ex. 33.) Moreover, UBS SA does 

not deny that it was in regular communication with BLMIS and Madoff. See Baumert Decl. 17 [Bankr. S.D.N.Y. 

ECF No. 112.]) 

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11 Civ. 3673(RJS), 2012 WL 123989, *4-5 (S.D.N.Y. Jan. 3, 2012) (finding regular 

communications with New York to discuss project development were sufficient for jurisdiction 

because they “effectuate[d] some purposeful business in New York”); Parke-Bernet Galleries, 

Inc. v. Franklyn, 256 N.E.2d 506, 508 (N.Y. 1970) (finding defendant’s use of phone lines to 

receive and transmit bids constitutes purposeful availment for jurisdiction). 

f. UBS SA Served as the Prime Bank for Groupement with 

Respect to BLMIS, and Directed Investment Activity to New 

York 

In addition to its numerous contacts with respect to Luxalpha, UBS SA also maintained 

minimum contacts with New York relating to the other feeder fund named in this action, 

Groupement. (See Pergament Decl. Ex. 18 at 18.) Beginning in 2005, UBS SA began to serve 

as Groupement’s prime bank. (Pergament Decl. Ex. 34.) In this role, UBS SA was involved 

with the transfer of fund subscription money from investors to the Bank of Bermuda, the entity 

that was responsible for transferring such funds to Groupement’s account at BLMIS in New 

York. (Pergament Decl. Ex. 18 at 13 (noting that UBS SA received “detailed instructions of the 

amounts to be invested with B. Madoff”).) UBS SA also received BLMIS’s account statements 

for Groupement from AIA Europe, which it used to maintain a mirror-image bookkeeping of all 

the “transactions” with BLMIS, so that UBSFSL could calculate Groupement’s Net Asset Value 

(“NAV”). (Id. at 15–16, 21.) Beginning in 2005, UBS SA also served as the custodian for 

related fund Groupement Financier Levered Ltd. (“Groupement Levered”), which did not have a 

direct account at BLMIS, but combined investor money with bank leverage to invest in the 

underlying BLMIS-invested Groupement fund. (Id. at 11, 21.) 

By serving as Groupement’s prime bank, performing its accounting, and serving as 

Groupement Levered’s custodian, UBS SA purposefully directed its activities at this forum. 

UBS SA was fully aware that all of the work it did for the Groupement funds enabled 

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investments in New York with Madoff, who was the “exclusive trader” and bore “responsibility” 

for the funds’ investments. (Id. at 15.) 

g. UBS SA Earned Substantial Fees as a Result of Its Direction of 

Investments to New York Through Luxalpha and Groupement 

As a result of its direction of investments to BLMIS through Luxalpha and Groupement, 

UBS SA earned substantial fees, further underscoring the contacts between UBS SA and the 

forum that give rise to jurisdiction. UBS SA earned fees from Luxalpha in connection with its 

purported roles as Luxalpha’s custodian and Luxalpha’s portfolio manager from February 2004 

to August 2006. (See Pergament Decl. Exs. 35 at App’x 1; 36 at 8; 23 at 5 & App’x III.) These 

fees were based on the assets under management with BLMIS. (Id.) Upon information and 

belief, UBS SA was paid $10,539,560 in fees for “recordkeeping and jurisdiction purposes,” 

$14,464,523 in “management fees” for the period February 2004 until August 2006, and 

$13,470,388 in “performance fees” for the period February 2004 until August 2006 relating to 

Luxalpha. (Am. Compl. 187–189.) UBS SA also earned fees from Groupement in 

connection with its role as prime bank. (Pergament Decl. Ex. 34 at 11.) The Trustee’s suit seeks 

to recover these fees subsequently transferred to UBS SA and plainly arises out of or relates to 

the contacts between UBS SA and the forum which allowed UBS SA to earn such fees. See 

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985); see also Jesup, Josephthal & Co. 

v. Piguet & Cie, No. 90 Civ. 6544 (WK), 1991 WL 168053, at *2 (S.D.N.Y. Aug. 22, 1991) 

(subjecting a Swiss private bank to jurisdiction for making investments in the forum on behalf of 

its clients because, by providing such services to its clients, the bank “act[ed] to inure its own 

benefit”). 

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h. UBS SA Submitted a Customer Claim to the Trustee on Behalf 

of Luxalpha 

On March 2, 2009, UBS SA filed a customer claim in the BLMIS liquidation, Claim No. 

005025, on behalf of Luxalpha, which was signed by UBS SA employees Marcel Bruhwiler and 

Ueli Schlaepfer. (Pergament Decl. Ex. 22 at 4.) This claim lists “UBS (Luxembourg) S.A. on 

behalf of LUXALPHA Sicav” as the Customer, and provides UBS SA’s Taxpayer Identification 

Number. (Id. at 1.) The submission of this claim on Luxalpha’s behalf in New York is yet 

another UBS SA contact with the forum and further evidence the UBS SA has availed itself of 

the protections of U.S. law. 16 

2. UBSFSL Is Subject to the Court’s Jurisdiction Because it 

Administered Luxalpha and Groupement, Directing Investments to 

BLMIS in New York 

UBSFSL’s contention that its “jurisdictionally relevant business activities . . . had 

virtually no connection to the United States” (UBS Mot. at 29) rings hollow. UBSFSL served as 

administrator of Luxalpha and Groupement (see Boulat Decl. 9, 12 [Bankr. S.D.N.Y. ECF 

No. 111]) and took steps to direct these funds’ investments to BLMIS in New York, which 

actions subject UBSFSL to the specific jurisdiction of the Court. See Maxam, 460 B.R. at 117 

(jurisdiction found as a result of defendants’ “directing investments to the United States”); 

Cromer, 137 F. Supp. 2d at 476-77 (finding that foreign administrator of a fund was subject to 

jurisdiction given “the quality and nature of [its] relationship with the United States, arising out 

of [its] work for the Fund” and because it “received from the United States all of the information 

from which it prepared the statements it disseminated as Fund administrators”). 

16 The Trustee does not contend that UBS SA submitted itself to the jurisdiction of the Court by filing the claim on 

Luxalpha’s behalf, but rather that the preparation and submission of the claim by UBS SA constitutes yet another 

contact with the forum. 

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As administrator, UBSFSL processed subscriptions and redemptions on behalf of 

investors in Luxalpha and Groupement. UBSFSL received Luxalpha subscription requests from 

investors, and then communicated with UBS SA so UBS SA could receive investor money and 

transfer it into BLMIS in New York. (Pergament Decl. Exs. 28 at 11–12; 29 at 1.) And 

UBSFSL received Groupement subscription requests from investors, and then coordinated with 

UBS SA so that this money could be invested in BLMIS in New York through the Bank of 

Bermuda. (Pergament Decl. Exs. 18 at 8, 13–14; 37.) UBSFSL also worked to process 

Luxalpha and Groupement redemption requests in a similar manner, in coordination with UBS 

SA. (Pergament Decl. Exs. 28 at 11–12; 18 at 10.) 

UBSFSL also served additional roles that give rise to jurisdiction. Through contracts 

with Luxalpha and Groupement, it was charged with responsibility for keeping the funds’ 

accounting—including but not limited to calculating the NAV, preparing the annual accounts, 

reports, and financial statements, and maintaining the liaison with the auditor of the funds. 

(Pergament Decl. Exs. 38 at 3-4; 39 at LuxAlpha 00644-45; 40 at LuxAlpha 00471-75; 41 at 1- 

2.) UBSFSL used trade and account information provided by BLMIS in New York through UBS 

SA and Access’s London office, in order to calculate the NAV. (Pergament Decl. Exs. 28 at 7– 

8, 15–16; 18 at 15–16.) 

Further, with respect to Groupement, and with respect to Luxalpha after August 2006, 

UBSFSL also served as Registrar and Transfer Agent, responsible for issuing, redeeming, and 

transferring investors’ shares in the funds. (Pergament Decl. Exs. 39 at LuxAlpha 00645-47; 40 

at LuxAlpha 00472-74; 41 at 2-3.) UBSFSL also monitored the investment restrictions that 

Luxalpha purportedly placed on the types of securities that Madoff was to be trading, and was 

responsible for contacting Frank DiPascali at BLMIS if Luxalpha did not have sufficient cash on 

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hand to satisfy outstanding redemptions. (Pergament Decl. Ex. 28 at 12, 17; see also Pergament 

Decl. Ex. 10 at 17–22 (describing investment restrictions).) And UBSFSL regularly interacted 

with Access’s New York office in furtherance of its administrative and accounting roles. (See, 

e.g., Pergament Decl. Exs. 42-44.) 

Through its roles, UBSFSL earned substantial fees, further underscoring the contacts 

between UBSFSL and the forum that give rise to jurisdiction in a suit seeking recovery of these 

fees. Upon information and belief, UBSFSL earned a total of $2,624,871 with respect to 

Luxalpha (Am. Compl. 186; see Pergament Decl. Exs. 38 at 9; 39 at LuxAlpha 00659; 40 at 

LuxAlpha 00486,) and earned substantial fees from Groupement as well. (See Pergament Decl. 

Ex. 41 at 8.) Those fees, which the Trustee’s suit seeks to recover, were based on the funds’ 

assets under management with BLMIS and were paid to UBSFSL as a result of its direction of 

investment activity to the United States. 

UBSFSL acknowledges its role as administrator for Luxalpha and Groupement, but states 

that its employees “did not regularly contact any employee of BLMIS, or any agent acting on 

behalf of Mr. Madoff or BLMIS.” (Boulat Decl. 15 [Bankr. S.D.N.Y. ECF No. 111.]) This 

contention is belied by BLMIS records that demonstrate fax communications and telephone 

discussions between BLMIS and UBSFSL employees. (Pergament Decl. Ex. 45; see also n. 15, 

supra.) 

3. UBS SA and UBSFSL Are Subject to Jurisdiction Because Luxalpha 

Acted in New York as Their Agent 

UBS SA and UBSFSL are also subject to suit in the United States because Luxalpha 

acted in New York as their agent. Luxalpha submitted customer claims and held a customer 

account with BLMIS, and is unquestionably subject to the Court’s jurisdiction. (See Section 

III.A., supra.) Given the critical role UBS SA played in establishing Luxalpha, and UBS SA and 

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UBSFSL played in operating, managing, and servicing Luxalpha, the jurisdictional contacts of 

Luxalpha should be imputed to UBS SA and UBSFSL. Leonard v. Optimal Payments Ltd. (In re 

Nat’l Audit Def. Network), 332 B.R. 896, 905–06 (Bankr. D. Nev. 2005) (asserting agency 

jurisdiction over a foreign company which used another company as its agent in the United 

States, as “[a foreign party] may not avoid jurisdiction in the United States by conveniently 

interposing a subsidiary between its acts and the debtor”); see also Dorfman, 2002 WL 14363, at 

*3. 

As described above, UBS SA incorporated Luxalpha, opened its account at BLMIS, and 

officially served as Luxalpha’s co-sponsor, custodian, distributor, and from 2004 to 2006, its 

portfolio manager. (See Section III.B.1., supra.) Similarly, UBSFSL served as Luxalpha’s 

administrator for the entirety of its existence. (See Section III.B.2., supra.) But UBS SA and 

UBSFSL were not arms-length parties who contracted with Luxalpha to provide services. UBS 

SA and UBSFSL, along with Access, acted on behalf of Luxalpha to perform all or virtually all 

of the work of Luxalpha, which had no employees or office space of its own. Luxalpha’s board 

was comprised almost entirely of high-level UBS SA personnel at all times. (See Am. Compl. 

36–43.) These board members authorized the delegation of Luxalpha’s custodial and trading 

authority to BLMIS in New York, among other primary actions. (Pergament Decl. Ex. 8 at 3–4.) 

UBS SA also held Luxalpha’s money, moving it and out of sub-custodian BLMIS, and regularly 

interacted with BLMIS regarding issues arising from these transfers. (See Section III.B.1., 

supra.) It even was asked to pay for Luxalpha’s professional liability insurance—obtained from 

broker Frank Crystal in New York. (See Pergament Decl. Ex. 46.) 

Likewise, UBSFSL performed various fundamental tasks for Luxalpha, including 

processing redemptions and subscriptions, calculating the NAV, receiving all documents and 

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correspondence sent to Luxalpha, setting up the fund’s annual general meeting, and filing 

documents with the Luxembourg financial regulator. (See Section III.B.2., supra.; Pergament 

Decl. Exs. 38 at 2–4; 28 at 22–23.) The “Day-to-Day Managers” of Luxalpha, at least as of 

2006, were UBSFSL employees. (Pergament Decl. Exs. 47 at 2; 48 at 2; 49 at 2.) Luxalpha 

even used UBSFSL’s offices in Luxembourg as its address. (Pergament Decl. Exs. 50 at 2; 49 at 

2.) 

An agency relationship exists where entities are “engaged in a single business enterprise 

that relies on the joint efforts” of each of the entities, which are “coordinated and controlled” by 

the parent entity. Dorfman, 2002 WL 14363, at *11. Here, Luxalpha was little more than a fee- 

generating portal present in the United States, which could not have functioned but for UBS SA 

and UBSFSL, such that Luxalpha’s jurisdictional contacts should be imputed to UBS SA and 

UBSFSL. 

4. UBSTPM is Subject to Jurisdiction Through Its Role as Luxalpha’s 

Management Company, and Because UBS SA Acted as Its Agent 

The third UBS AG subsidiary in this action, UBSTPM, is also subject to jurisdiction 

because it maintained minimum contacts with the United States related to Luxalpha. UBSTPM 

outwardly served as Luxalpha’s management company from August 2006 to November 2008, 

taking over the portfolio management role from UBS SA. (Am. Compl. 19, 21; Hemmen Decl. 

9 [Bankr. S.D.N.Y. ECF No. 114.]) Luxalpha’s sales prospectus advised investors that 

UBSTPM was responsible for managing and administering the fund, as well as monitoring 

investment policies and restrictions. (Pergament Decl. Ex. 51 at 7, 17.) Pursuant to its contract 

with Luxalpha, UBSTPM was officially responsible for Luxalpha’s investment management 

decisions, among other roles. (Pergament Decl. Ex. 52 at LuxAlpha 00410.) Of course, 

UBSTPM did not disturb the investment decision to invest Luxalpha entirely with BLMIS, 

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profiting enormously as a result. 17 UBSTPM was entitled to receive management fees, as well as 

performance fees tied to the underlying performance of the Luxalpha fund as managed by 

BLMIS. (Pergament Decl. Exs. 51 at 6; 52 at LuxAlpha 00415.) Upon information and belief, 

UBSTPM received $27,167,048 in management fees, in addition to $15,482,220 in performance 

fees, from the period of August 2006 until November 2008. (Am. Compl. 190–91.) 

UBSTPM is subject to jurisdiction as a result of its direction of investment activity to New York, 

and its earning of substantial fees in connection with investments funneled to New York. See 

Maxam, 460 B.R. at 117; Chais, 440 B.R. at 274. 

In addition, UBSTPM is subject to jurisdiction because of its agency relationship with 

UBS SA. UBS SA served as Luxalpha’s initial official portfolio manager, as well as its official 

custodian and distributor. (Pergament Decl. Ex. 10 at 7.) UBS SA appears to have handed off 

management company responsibility for Luxalpha to UBSTPM in August 2006 as a result of 

regulatory pressure related to UBS SA impermissibly serving in too many service roles with 

respect to Luxalpha. (See Pergament Decl. Ex. 53.) The change in authority was entirely 

cosmetic, however, because UBS SA retained control over UBSTPM with respect to its new 

portfolio management role. 

Contemporaneous with the delegation of management responsibility to UBSTPM, 

UBSTPM and UBS SA contracted to establish an advisory committee for UBSTPM, consisting 

of UBS SA Managing Directors and Defendants Hondequin, Egger, and Roger Hartmann as well 

as Access principals and Defendants Littaye and Delandmeter. (Pergament Decl. Ex. 54 at 

LuxAlpha 00697, 00704.) The purpose of this committee was to advise UBSTPM “with 

17 As noted previously, asset management decisions for Luxalpha had been actually delegated to BLMIS in 2004 

pursuant to the Trading Authorization Limited to Purchases and Sales of Securities and Options. (Pergament Decl. 

Ex. 9 at 7 – 9.) 

37


Pg 58 of 133 

recommendations . . . in relation to the management and investment policy and strategy of the 

Fund”—the very responsibilities which were to have been shifted from UBS SA to UBSTPM. 

(Id. at LuxAlpha 00698–99.) The “recommendations” were more than just mere guidance. 

Rather, they were to be “act[ed] upon and implement[ed]” by UBSTPM. (Id. at LuxAlpha 

00699.) UBSTPM and UBS SA also executed an “Agreement of Understanding and 

Indemnification,” whereby UBS SA agreed to indemnify UBSTPM with respect to Luxalpha, 

and UBSTPM agreed to, upon request, delegate its marketing functions to UBS SA. (Pergament 

Decl. Ex. 55 at 2.) Pursuant to this contract with UBS SA, UBSTPM also agreed to delegate its 

administration functions to UBSFSL. (Id.) 

Management company responsibility for Luxalpha was formally shifted in 2006 from 

UBS SA to UBSTPM. However, UBS SA and its principals retained control over UBSTPM 

with respect to this role. UBS SA’s numerous connections with the forum should be imputed to 

UBSTPM for purposes of jurisdiction, as UBSTPM’s function with respect to Luxalpha appears 

to have been nothing more than a shell corporation controlled by UBS SA. Dorfman, 2002 WL 

14363, at *3 (agency jurisdiction found where the corporation present in New York “does all the 

business which [the foreign corporation] could do were it here by its own officials”); see also 

Palmieri, 793 F. Supp. at 1190. 

5. The Trustee’s Claims Against UBS SA, UBSFSL, and UBSTPM Arise 

out of Their Contacts with New York 

Specific jurisdiction exists over each of the Moving UBS Defendants because the 

Trustee’s Amended Complaint seeks to recover BLMIS funds subsequently transferred to these 

Defendants as fees from initial transferee Defendants Luxalpha and Groupement, among other 

claims, and therefore unquestionably “arises out of or relates to” the Moving UBS Defendants’ 

contacts with this forum. See Burger King, 471 U.S. at 472 (stating that nonresident defendant is 

38


Pg 59 of 133 

subject to jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of 

the forum . . . and the litigation results from alleged injuries that ‘arise out of or relate to’ those 

activities”); see also Sole Resort, 450 F.3d 100 at 103 (requiring “some articulable nexus 

between the business transacted and the cause of action sued upon” for jurisdiction under CPLR 

§ 302(a)(1)). 

The Moving UBS Defendants argue that they are not subject to specific jurisdiction 

because the Trustee’s claims seek BLMIS customer funds subsequently transferred from 

Luxalpha and Groupement to the Moving UBS Defendants, such that the Trustee’s claims do not 

arise out of the Moving UBS Defendants’ contacts with New York. (UBS Mot. at 29–30, 32– 

34.) This argument is meritless. The Moving UBS Defendants contracted, interacted, and dealt 

with BLMIS and Access in New York, as well as Groupement and Luxalpha themselves, to 

create the business relationship by which UBS could operate and administer Luxalpha and 

Groupement, which were fully invested in BLMIS in New York, and earn fees as a result. The 

Trustee now seeks to recover these fees through subsequent transferee claims that would not 

exist but for the Moving UBS Defendants’ contacts with the forum, and the Trustee’s claims 

therefore arise out of or relate to these contacts. See Chais, 440 B.R. at 279–80 (exercising 

jurisdiction where the defendant’s “contacts with the forum and the Trustee’s claims are 

inextricably related such that but for” the defendant’s contacts with the forum, “there could be no 

fraudulent transfer claims against Defendant”) 18 ; Maxam, 460 B.R. at 118 (finding that Trustee’s 

claims “arise out of or relate to” contacts with the United States, since without the subsequent 

18 The Court in Chais applied the “but for” test for determining whether the Trustee’s claims in that action were 

sufficiently related to the contacts with the forum, but noted that certain courts have utilized a “proximate cause” test 

or another relatedness test that is dependent on the “overall picture” of the defendant’s contacts. Chais, 440 B.R. 

280 at n.3. Given the Moving UBS Defendants’ critical role in establishing Luxalpha, and operating Luxalpha and 

Groupement, the Trustee’s causes of action are so closely related to the contacts at issue that jurisdiction is proper 

under either of these formulations of the relatedness test. 

39


Pg 60 of 133 

transferee “transferring assets to and from the United States, there could not be claims for 

subsequent transfers against it”); Newbro v. Freed, 337 F. Supp. 2d 428, 433 (S.D.N.Y. 2004) 

(finding “articulable nexus” between out-of-state defendants’ “New York contacts and the 

underlying claims in the litigation,” where claims arose out of a transfer which “arose from a 

chain of events” which included defendants’ New York contacts); MWL Brasil Rodas & Eixos 

Ltda v. K-IV Enters. LLC, 661 F. Supp. 2d 419, 424–25 (S.D.N.Y. 2009) (cause of action arose 

out of out-of-state defendant’s connections with New York where the contract that represented 

defendant’s business transactions in New York was not the same as the contract that was the 

subject of the cause of action, where “the two contracts are substantially related.”) 

6. UBS SA, UBSFSL, and UBSTPM Are Mere Departments of UBS AG 

and Therefore Subject to the Court’s General Jurisdiction 

UBS SA, UBSFSL, and UBSTPM are subject to jurisdiction because each is a mere 

department of its corporate parent UBS AG, which has not contested jurisdiction. 19 (See UBS 

Mot. at 35.) Courts in this jurisdiction have established the following four-part test to determine 

whether a corporate subsidiary or affiliate is a mere department of its corporate parent: (1) 

common ownership; (2) financial interdependence; (3) interference with personnel and disregard 

for corporate formalities; and (4) control over operational and marketing policies. Van Egeraat, 

2009 WL 1209020, at *2. Each prong of the mere department test is satisfied here such that the 

imputation of UBS AG’s jurisdictional contacts to the Moving UBS Defendants is not blind 

aggregation (see UBS Mot. at 34,) but rather the consequence of their mere department 

relationship. Van Egeraat, 2009 WL 1209020, at *2 (citing Beech Aircraft, 751 F.2d at 120). 

19 UBS AG conducts regular banking business through multiple offices in the United States, including those in New 

York, and is thus subject to the Court’s general jurisdiction. (See Pergament Decl. Ex. 56 at 48; Chloe, 616 F.3d at 

164.) In addition, UBS AG is subject to specific jurisdiction as a consequence of its contacts relating to Luxalpha. 

(See Am. Compl. 128-131.) 

40


Pg 61 of 133 

The first and threshold requirement, common ownership, is satisfied because of the 

undisputed fact that each of UBS SA, UBSFSL, and UBSTPM are wholly owned subsidiaries of 

UBS AG. 20 

The second requirement, financial interdependence, is apparent from UBS AG’s own 

Annual Reports, which note that UBS AG’s consolidated financial statements comprise “those of 

the parent company (UBS AG) and its subsidiaries . . . presented as a single economic entity.” 

(Pergament Decl. Ex. 56 at 297.) Further, the 2011 Annual Report notes that “UBS controls an 

entity when it has the power to govern the financial and operating policies of an entity. 

Generally this is indicated by a direct shareholding of more than one-half of the voting rights.” 

(Id.) This is exactly the case with UBS SA, UBSFSL, and UBSTPM, as they are wholly owned 

by UBS AG. 

The third factor, failure to observe corporate formalities, is satisfied because of the 

manner in which UBS AG manages its subsidiaries as part of a singular whole, and the 

substantial overlap in personnel between UBS AG, UBS SA, UBSFSL, and UBSTPM. UBS AG 

places its legally separate subsidiaries into larger business divisions that operate out of UBS AG. 

(Pergament Decl. Ex. 56 at 197, 394–95.) UBS SA is part of UBS AG’s Wealth Management 

and Swiss Bank business division, UBSFSL is part of UBS AG’s Global Asset Management 

business division, and UBSTPM’s parent entity UBS Fund Holding (Luxembourg) S.A. was also 

part of UBS AG’s Global Asset Management business division until its liquidation in 2009. 

(Pergament Decl. Exs. 56 at 394–95; 61 at 351.) Each of these business divisions is managed by 

20 UBS AG has continuously owned 100% of the equity of UBS SA and UBSFSL from the time Luxalpha and 

Groupement were incorporated through the present. (Pergament Decl. Exs. 57 at 159–60; 56 at 394–95.) Likewise, 

UBS AG has been the ultimate owner of UBSTPM for all times relevant to this action. From at least 2006, when 

UBSTPM became Luxalpha’s Portfolio Manager, UBSTPM was 99.9% owned by UBS Fund Holding 

(Luxembourg) S.A.—itself an entity entirely owned by UBS AG. (Pergament Decl. Exs. 58; 59 at 173.) In 

December 2009, UBS Fund Holding (Luxembourg) was liquidated, and its ownership stake in UBSTPM was 

transferred to UBS AG. (See Pergament Decl. Ex. 60 at 8, 9.) 

41


Pg 62 of 133 

a single Group Executive Board, whose members are approved by UBS AG’s Board of 

Directors. (Pergament Decl. Exs. 62; 56 at 204.) Both the Group Executive Board and UBS 

AG’s Board of Directors exercise supervisory responsibility for UBS Group, which includes 

both UBS AG and its subsidiaries. (Pergament Decl. Ex. 63 at R. 15.2, 5.3.) UBS AG executive 

Douglas Lindgren testified that the Group Executive Board “governs the whole company,” 

including “UBS AG and the subs.” (Pergament Decl. Ex. 64 at 85:14–22.) “In some fashion,” 

Lindgren testified, the Group Executive Board is “responsible for everything that happens[.]” 

(Id. at 86:23–87:7.) UBS’ marketing materials also present UBS’s global operations as one, 

unified whole. 21 The following chart demonstrates the corporate interconnections between UBS 

AG and the Moving UBS Defendants: 

21 See, e.g., About Us, UBS AG, http://www.ubs.com/1/e/about.html (last visited August 14, 2012) (“UBS is a 

global firm providing financial services to private, corporate and institutional clients.”); 

2006/2007 Print Ads, UBS AG, http://www.ubs.com/1/e/about/brand/ads/print_ads.html (last visited August 14, 

2012) (noting that in its print ads “UBS branding elements such as logo and tagline were enlarged, while the 

integrated UBS business descriptor was made more prominent.”); Pergament Decl. Ex. 61 at 12 (describing its 

business as “a client-focused financial services firm that offers a strong combination of wealth management, asset 

management and investment banking services on a global and regional basis”). 

42


Pg 63 of 133 

UBS AG and the Moving UBS Defendants: Ownership Structure 

Global Wealth Management and 

Swiss Bank Business Division 

UBS SA 

UBS AG 

Group 

Executive 

Board 

43 

Global Asset Management Business Division 

UBSFSL 

UBS Fund Holding 

(Luxembourg) S.A. 

UBSTPM 

Numerous UBS AG officers have served as directors or officers of UBS SA, UBSFSL, 

and UBSTPM, further underscoring the fact that these subsidiaries are mere departments at the 

control of their corporate parent. Since 2002, at least twenty UBS SA directors or officers have 

also served as corporate employees of UBS AG at some time. UBSFSL has had five directors 

with ties to UBS AG, and UBSTPM has had four such directors in this period. The following 

chart depicts these directors and officers of the Moving UBS Defendants and their employment 

relationship to UBS AG:


Pg 64 of 133 

44


Pg 65 of 133 

The fourth requirement of the mere department test, interference with operations, is 

satisfied because Luxalpha could not have been established and sustained—and UBS SA, 

UBSFSL, and UBSTPM could not have been permitted to service Luxalpha and Groupement and 

reap the fees that form the basis of this action—without UBS AG’s approval. 

UBS AG was anything but a rigidly separated parent company with respect to the 

Moving UBS Defendants. Rather, UBS AG’s approval was required before Luxalpha was 

opened and it then exercised significant and ongoing control over its Luxembourg subsidiaries’ 

ongoing operation of Luxalpha. See Kargo, Inc. v. Pegaso PCS, S.A. de C.V., No. 05 Civ. 10528 

(CSH) (DFE), 2008 WL 2930546, at *9 (S.D.N.Y. July 29, 2008) (finding a mere department 

relationship where the “facts suggest that [the parent’s employee] exercised a significant degree 

of managerial control over [the subsidiary]’s business dealings with [the plaintiff]”); Dorfman, 

2002 WL 14363, at *6 (finding a mere department relationship where control by parent 

“substantially exceeds the level of control inherent in the parent-subsidiary relationship”). 

Shortly after Littaye first proposed that UBS take over sponsorship of Luxalpha’s 

predecessor Oreades, 

(Pergament Decl. Ex. 4.) UBS AG admitted that “normally, we have 

to give a ‘NO’ answer in cases like Madoff,” because “the broker may under no circumstances 

also be a depository at the same time.” (Pergament Decl. Ex. 5 at 2.) Nevertheless, UBS AG 

permitted the delegation of custodial authority from UBS SA to BLMIS, 

Ex. 66.) 

45 

(Id. at 3; see also Pergament Decl. 

Then, in March 2004, before UBS SA signed the Luxalpha account opening documents 

with BLMIS, UBS SA principal DeAngelis assured UBS AG director Dieter Kiefer, “I still don’t


Pg 66 of 133 

feel right about this client; I will accept this client on a trial basis for 6 months, and if I see a risk 

for our bank, [I will] liquidate the fund.” (Pergament Decl. Ex. 67.) UBS AG’s approval was 

necessary to establish Luxalpha. Without that approval, UBS SA, UBSFSL, and UBSTPM 

could not have profited from the roles they assumed with respect to the fund. 

With its powerful name behind the feeder funds, UBS AG maintained a close watch on 

Luxalpha after the account was opened. In March 2007, UBS AG risk controllers performed an 

audit on Luxalpha. UBS AG shut down new investments in Luxalpha for nearly a year while the 

audit was underway and “UBS nearly gave up” on Luxalpha. (Pergament Decl. Ex. 68.) But 

lured by the massive fees that the UBS entities were receiving from BLMIS, UBS found a 

workaround by having an Access entity, Defendant AML, take over the portfolio management 

role from UBSTPM, and Luxalpha was opened to new subscriptions in January 2008. (See 

Pergament Decl. Ex. 3.) 

(Pergament Decl. Ex. 69.) 

(Id.) 

Finally, a mere department relationship also exists because UBS AG and the Moving 

UBS Defendants were engaged in a common business endeavor to operate and service Luxalpha. 

Dorfman, 2002 WL 14363, at *8 (“Courts have frequently drawn an interference of substantial 

control from the fact that a subsidiary is engaged in a common business endeavor with its parent 

46


Pg 67 of 133 

corporation.”). In addition to approving the establishment of Luxalpha and delegation of 

custodial authority to New York, UBS AG also served as Luxalpha’s co-sponsor, and provided 

the use of its correspondent bank account in the United States to UBS SA. The jurisdictional 

contacts between UBS AG and the forum should be ascribed to the Moving UBS Defendants as 

they are each mere departments of their parent. 22 

7. The Court Has Jurisdiction over Each of the Moving Luxalpha 

Director Defendants Because Each Directed Investment Activity to 

New York 

Specific jurisdiction exists over each of the Moving Luxalpha Director Defendants 

because each of them has the minimum contacts with the forum required for the Court to 

exercise personal jurisdiction. Each of the Moving Luxalpha Director Defendants was involved 

in the major decisions and investment activities that were purposely directed to BLMIS in New 

York. Even if “none of them has ever met or communicated with Madoff . . . in connection with 

any Luxalpha business” (UBS Mot. at 22–23,) these defendants authorized and supervised 

Luxalpha’s targeted direction of funds to BLMIS in New York, actively concealed Madoff’s role 

as custodian and asset manager from investors, and generated millions in fees for UBS SA, 

where each was a high-ranking principal. The Moving Luxalpha Director Defendant also served 

on Luxalpha’s board with Littaye, who had close ties with Madoff, and used this relationship and 

22 The Moving UBS Defendants rely heavily on Indem. Ins. Co. of N. Am. v. K-Line Am., Inc., No. 06 Civ. 0615 

(BSJ), 2007 WL 1732435 (S.D.N.Y. June 14, 2007) to argue that UBS AG’s jurisdictional contacts cannot be 

imputed to them. (UBS Mot. at 36.) In K-Line, the court declined to find a mere department relationship where the 

plaintiff failed to establish common ownership among the entities, there was no interference in the selection or 

assignment of personnel, and where it was not clear that the parent company was even present in New York. 2007 

WL 1732435, at *11. In contrast, each of these factors is satisfied here. The Moving UBS Defendants’ references 

to Greatship (India) Ltd. v. Marine Logistics Solutions (Marsol) LLC, No. 11 Civ. 420 (RJH), 2012 WL 204102 

(S.D.N.Y. Jan. 24, 2012) and Fagan v. Austria, No. 08 Civ. 6715 (LTS) (JCF), 2011 WL 1197677, at *20 (S.D.N.Y. 

Mar. 25, 2011) are similarly unavailing. (UBS Mot. at 36.) Greatship concerned a foreign plaintiff’s efforts to 

enforce a foreign judgment against a foreign defendant whose parent entity was not even a registered company in 

New York, and the claims in Fagan revolved around foreign defendants’ allegedly tortious conduct that had 

exclusively occurred in Austria. Further, in both Fagan and Greatship, the domestic parent company at issue was in 

no way connected with the actions that gave rise to the plaintiffs’ claims, nor was there any assertion of control by 

the parent over the subsidiary or any common employees between them. 

47


Pg 68 of 133 

their authority as board members to help Luxalpha achieve its stated purpose of directing 

investor money into this forum. (See Am. Compl. 37-40, 42, 85-89.) 

Each of the Moving Luxalpha Director Defendants made numerous acts and decisions to 

further the direction of investment activity to BLMIS in New York, as set forth below: 

� Alain Hondequin 

o Served as director of Luxalpha from inception in February 2004 through liquidation in 

April 2009 (Am. Compl. 39.) Was a high-level UBS SA employee during this time (See 

id. 39; Hondequin Decl. 4 [Bankr. S.D.N.Y. ECF No. 115.]) 

o Authorized Luxalpha’s opening of its customer account with BLMIS in New York 

(Pergament Decl. Ex. 8 at 3.) 

o Approved Luxalpha’s delegation of asset management authority to BLMIS through 

authorization of the “Trading Authorization Limited to Purchases of Sales and Securities 

and Options” between BLMIS and UBS SA (Id. at 4; see Pergament Decl. Ex. 9 at 7–9.) 

o Approved Luxalpha’s delegation of custodial authority to BLMIS through resolution 

authorizing that “the assets of the Fund be held by the Custodian for the fund either with 

itself and with a US registered broker-dealer” (Pergament Decl. Ex. 8 at 2; see Pergament 

Decl. Ex. 9 at 18.) 

o Authorized Luxalpha’s sales prospectuses that concealed BLMIS’s role as actual 

custodian and asset manager (Pergament Decl. Exs. 8 at 2; 12; see, e.g., Pergament Decl. 

Ex. 10.) 23 

o Authorized Luxalpha board resolution confirming that Luxalpha was in conformity with 

the determined investment policy and the investment restrictions mentioned in the 

prospectus (Pergament Decl. Ex. 14.) 

23 Federal courts routinely hold that a foreign party’s approval of a United States securities filing subjects the party 

to jurisdiction. See, e.g., Itoba, Ltd. v. LEP Grp. PLC, 930 F. Supp. 36, 41 (D. Conn. 1996) (director defendant 

subject to jurisdiction in the United States for approving the filing of a particular form required by the SEC that later 

was found to be fraudulent); Kelley v. Cinar Corp. (In re CINAR Corp. Sec. Litig.), 186 F. Supp. 2d 279, 306 

(E.D.N.Y. 2002) (“signing the Registration Statement was enough to put the defendant on notice of potential suit in 

the United States and shows purposeful availment”); In re Royal Ahold N.V. Sec. & ERISA Litig., 351 F. Supp. 2d 

334, 351-52 (D. Md. 2004) (noting that “United States courts frequently have asserted personal jurisdiction over 

individual defendants who sign or, as control persons, approve the filing or disseminating of, particular forms 

required by the SEC which they knew or should have known would be relied on by U.S. investors”). Although 

Luxalpha was not registered with the SEC as a fund marketed to overseas investors, it nonetheless was entirely 

invested—and marketed itself as a fund that mainly invested—in the United States. (See Pergament Decl. Ex. 10 at 

3, 5.) 

48


Pg 69 of 133 

o Authorized Luxalpha’s financial statements, despite knowing they did not disclose 

BLMIS’s role as actual custodian and asset manager (Pergament Decl. Exs. 70-72; see, 

e.g., Pergament Decl. Ex. 48.) 

o Authorized quarterly resolutions stating that monitoring of Luxalpha was performed and 

no “significant irregularities” were found (Pergament Decl. Exs. 73-81.) 

o Authorized payments on behalf of Luxalpha, including fees to UBS entities for official 

portfolio management services provided to the fund (Pergament Decl. Ex. 16.) 

o Served on “Advisory Committee” for UBSTPM that was charged with UBSTPM’s 

portfolio management duties for Luxalpha (Pergament Decl. Ex. 54 at LuxAlpha 00699, 

00704.) Hondequin’s employer UBS SA responsible for “any remuneration” received in 

connection with this role (Id. at LuxAlpha 00702.) 

o Participated in post-BLMIS collapse board meetings and decisions regarding Luxalpha 

(Pergament Decl. Exs. 82-86.) 

o Signed two customer claims on behalf of Luxalpha (Pergament Decl. Exs. 20 at 4; 21 at 

4.) 

� Hermann Kranz 

o Served as director of Luxalpha from inception in February 2004 through liquidation in 

April 2009 (Am. Compl. 40.) Was a high-level UBS SA employee during this time 

(See id. 40; Kranz Decl. 4 [Bankr. S.D.N.Y. ECF No. 113.]) 

o Authorized Luxalpha’s opening of its customer account with BLMIS in New York 


o Approved Luxalpha’s delegation of asset management authority to BLMIS through 

authorization of the “Trading Authorization Limited to Purchases of Sales and Securities 

and Options” between BLMIS and UBS SA (Id. at 4; see Pergament Decl. Ex. 9 at 7–9.) 

o Facilitated UBS SA’s banking interface with BLMIS, asking UBS SA’s helpdesk to 

“Please open [the Madoff account] immediately!” (Pergament Decl. Ex. 87 at 2.) 

o Approved Luxalpha’s delegation of custodial authority to BLMIS through resolution 

authorizing that “the assets of the Fund be held by the Custodian for the fund either with 

itself and with a US registered broker-dealer” (Pergament Decl. Ex. 8; see Pergament 

Decl. Ex. 6; see also Pergament Decl. Ex. 9 at 18.) 


custodian and asset manager (Pergament Decl. Exs. 8, 12; see, e.g., Pergament Decl. Ex. 

10.) 

49


Pg 70 of 133 





BLMIS’s role as actual custodian and asset manager (Pergament Decl. Exs. 70-72; see, 



no “significant irregularities” were found (Pergament Decl. Exs. 73-81.) 

o Authorized payments on behalf of Luxalpha, including fees to UBS entities for official 

portfolio management services provided to the fund (Pergament Decl. Ex. 16.) 


(Pergament Decl. Exs. 84, 85.) 

� Rene Egger 

o Served as director of Luxalpha from December 2005 through liquidation in April 2009 

(Am. Compl. 38.) Served as the Head of Products and Services of UBS SA during this 

time. (Egger Decl. 4. [Bankr. S.D.N.Y. ECF No. 109.]) 

o Authorized transfer of portfolio management responsibility over Luxalpha from 

UBSTPM to AML subsequent to audit on Luxalpha performed by UBS (Pergament Decl. 

Ex. 13 at 3; see also Pergament Decl. Ex. 3 at 1.) 


custodian and asset manager (Pergament Decl. Exs. 13 at 3; 11.) 





BLMIS’s role as actual custodian and asset manager (Pergament Decl. Exs. 71, 72; see, 



no “significant irregularities” were found (Pergament Decl. Exs. 79, 80.) 

o Served on “Advisory Committee” for UBSTPM that was charged with UBSTPM’s 

portfolio management duties for Luxalpha (Pergament Decl. Ex. 54 at LuxAlpha 00699, 

00704.) Pursuant to agreement, Egger’s employer UBS SA responsible for “any 

remuneration” received in connection with this role (Id. at LuxAlpha 00702.) 



50


Pg 71 of 133 

� Ralf Schroeter 

o Served as director of Luxalpha from January 2008 through liquidation in April 2009 

(Am. Compl. 37.) Served as the Chief Operating Officer of UBS SA during this time 

(Schroeter Decl. 4 [Bankr. S.D.N.Y. ECF No. 110.]) 

o Authorized transfer of portfolio management responsibility over Luxalpha from 

UBSTPM to AML subsequent to audit on Luxalpha performed by UBS (Pergament Decl. 

Ex. 13 at 3; see also Pergament Decl. Ex. 3.) 


custodian and asset manager (Pergament Decl. Exs. 13 at 3; 11.) 






o Signed two customer claims on behalf of Luxalpha (Pergament Decl. Exs. 20 at 4; 21 at 

4.) 

Each of the Moving Luxalpha Director Defendants took repeated, purposeful action 

directed towards New York such that he could reasonably anticipate being haled into court here. 

The Trustee’s causes of action, which seek the recovery of fees transferred to these defendants in 

connection with their service on Luxalpha’s board, arise out of or relate to these contacts, such 

that jurisdiction over these individual directors is proper. See Bickerton v. Bozel S.A. (In re Bozel 

S.A.), 434 B.R. 86, 99 (Bankr. S.D.N.Y. 2010) (citing Calder, 465 U.S. at 790). 

The Moving Luxalpha Director Defendants’ contention that they “had no direct 

involvement in the day-to-day management and operations of Luxalpha” is unavailing. (UBS 

Mot. at 22.) Even if this were true (which it is not, as demonstrated by the facts set forth above), 

there is no requirement that a director must be in charge of day-to-day operations in order to be 

subject to personal jurisdiction. “Even a single purposeful contact may be sufficient to meet the 

minimum contacts standard when the underlying proceeding is directly related to that contact,” 

51


Pg 72 of 133 

especially when such single contact “represent[s] a deliberate affiliation with the forum that 

renders foreseeable the possibility of being haled into court in the United States at least as to 

those specific contacts.” In re Application to Enforce Admin. Subpoenas Duces Tecum of SEC v. 

Knowles, 87 F.3d 413, 419 (10th Cir.1996) (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220, 

223 (1957)); see also Burger King, 471 U.S. at 475 n.18. 

These Defendants were high-level employees of UBS SA, the organization that created 

Luxalpha, a feeder fund which was wholly and exclusively invested with New York-based 

BLMIS, and served as the fund’s board directors. See Cohmad, 418 B.R. at 81 (finding 

minimum contacts where foreign defendant’s “purposeful and profitable activities contributed to 

the massive losses suffered by victims of the BLMIS Ponzi scheme in the U.S.”); Maxam, 460 

B.R. at 118 (finding specific jurisdiction where foreign defendant “engaged in a series of 

repeated transactions that intentionally channeled investor money into the BLMIS Ponzi scheme 

in New York”). Physical presence in New York is not necessary, when, as here, the defendants’ 

actions purposefully and directly touched the forum. See Heritage House Rests., Inc. v. Cont’l 

Funding Grp., Inc., 906 F.2d 276, 283 (7th Cir.1990) (finding jurisdiction and stating “[w]e have 

never held that the lack of presence in the forum state is determinative of the lack of 

jurisdiction”). It would be unfair to allow the Luxalpha Director Defendants to benefit from a 

profitable relationship between BLMIS and Luxalpha but then escape other consequences of that 

relationship. See Burger King, 471 U.S. at 474. 

The Moving Luxalpha Director Defendants’ claim that they did not receive “any 

compensation for their service to Luxalpha” is not grounds for their dismissal. (UBS Mot. at 23) 

The Trustee has alleged that each of the Moving Luxalpha Director Defendants benefited from 

Luxalpha’s New York activity in the form of fees subsequently transferred to them. (Am. 

52


Pg 73 of 133 

Compl. 270, 332–37). Indeed, the Moving Luxalpha Director Defendants do not deny that 

they received substantial compensation from their employer, UBS SA, during the time they 

served on Luxalpha’s board; nor do they deny that UBS SA received substantial fees from 

Luxalpha. On a motion to dismiss, it is enough that the Trustee has alleged that payments to the 

Moving Luxalpha Director Defendants originated with BLMIS in New York. Silverman v. 

K.E.R.U. Realty Corp. (In re Allou Distribs., Inc.), 379 B.R. 5, 30 (Bankr. E.D.N.Y. 2007) 

(“plaintiff must allege sufficient facts to show, if proved, that the funds at issue originated with 

the debtor . . . dollar-for-dollar accounting is not required . . . at the pleading stage”). Further, it 

is quite possible that the Moving Luxalpha Director Defendants received other benefits from 

UBS SA for serving on Luxalpha’s board—such as career advancement at UBS SA, undisclosed 

bonuses, or other consideration, which must be considered in the jurisdictional analysis. See 

Retail Software, 854 F.2d at 23 (presuming that “officers, directors, and shareholders . . . stood to 

benefit from [their corporation’s] entry into the New York market”); see also Moneygram 

Payment Sys., Inc. v. Consorcio Oriental, S.A., No. 05 Civ. 10773 (RMB), 2007 WL 1489806, at 

*5 (S.D.N.Y. May 21, 2007) (finding jurisdiction over corporate officer where he benefitted 

from corporation’s New York transactions). 

Finally, the Moving Luxalpha Director Defendants cannot escape this Court’s reach 

simply because they undertook these actions in their roles as corporate officers. (UBS Mot. at 

20.) Although a corporate officer is not automatically subject to personal jurisdiction in any 

forum where the company is subject to jurisdiction, “the Supreme Court has recognized that a 

defendant’s status as an employee or corporate officer ‘does not somehow insulate [him] from 

jurisdiction’” arising from his business-related contacts with the United States. In re Bozel S.A., 

434 B.R. at 99 (quoting Calder, 465 U.S. at 790). Rather, the Bankruptcy Court may assert 

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specific jurisdiction over a corporate officer where the “Adversary Proceeding arises out of [the 

officer’s] duties as a corporate officer and his corresponding contacts with the United States.” 

Id.; see also In re Royal Ahold, 351 F. Supp. 2d at 351 (“an individual defendant’s actions 

directed at the forum, even if those acts were done in that defendant’s corporate capacity” are 

relevant to jurisdiction); Torco Oil Co. v. Innovative Thermal Corp., 730 F. Supp. 126, 134 n.18 

(N.D. Ill. 1989) (jurisdiction permissible over foreign corporate officers where “defendants are 

‘primary participants in an alleged wrongdoing intentionally directed at’ a resident of the forum 

state”) (quoting Calder, 465 U.S. at 790). As demonstrated above, each of the Moving Luxalpha 

Director Defendants did in fact direct his actions at the United States, through his dominion and 

control of an investment fund entirely invested in New York. 

8. Each of the Moving Luxalpha Director Defendants Is Subject to 

Jurisdiction Because Luxalpha Transacted Business in New York as 

His Agent 

Additionally, each of the Moving Luxalpha Director Defendants is subject to jurisdiction 

under CPLR 302(a)(1) because Luxalpha transacted business in New York as his agent. The 

requisite agency test is easily satisfied because Luxalpha transacted business in New York for the 

benefit of, and with the knowledge and consent of, the Moving Luxalpha Director Defendants, 

who clearly exercised more than “some control” over the fund. See Kreutter, 522 N.E.2d at 44; 

see also Retail Software, 854 F.2d at 21-22 (asserting jurisdiction under CPLR 302(a)(1) over 

two foreign individuals who operated company that sold franchises in New York); In re 

Sumitomo Copper Litig., 120 F. Supp. 2d at 337 (asserting jurisdiction under CPLR 302(a)(1) 

over two Monaco residents who operated company that traded copper in New York). 

First, Luxalpha held a customer account with BLMIS in New York, and moved more 

than a billion dollars into BLMIS in New York, thus transacting business and engaging in 

“purposeful activities” in this forum. (Am. Compl. 262 & Exs. A & B.) Next, each of the 

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Moving Luxalpha Director Defendants knew of and consented to Luxalpha’s New York 

activities, as they each authorized Luxalpha’s ongoing investment with BLMIS. A plaintiff is 

not required to show that an officer expressly requested or consented to the corporation’s actions, 

as activities of an agent will be attributed to the principal if they authorized the agent to act in the 

state. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. BP Amoco P.L.C., 319 F. Supp. 2d 352, 

360 (S.D.N.Y. 2004). A party “cannot deputize another to take certain actions on its behalf and 

then disclaim knowledge or interest when those actions give rise to a legal dispute.” Id. 

Additionally, and notwithstanding the Moving Luxalpha Director Defendants’ 

protestations that they received no compensation as a result of their service on Luxalpha’s Board 

(Hondequin Decl. 16 [Bankr. S.D.N.Y. ECF No. 115]; Kranz Decl. 15 [Bankr. S.D.N.Y. ECF 

No. 113]; Egger Decl. 16 [Bankr. S.D.N.Y. ECF No. 109]; Schroeter Decl. 16 [Bankr. 

S.D.N.Y. ECF No. 110,]) they each did benefit from their Board service. The Moving Luxalpha 

Director Defendants undoubtedly received substantial compensation from their employer, UBS 

SA, during the time they served on Luxalpha’s board, and it is possible they received other 

benefits as well—such as career advancement at UBS SA, undisclosed bonuses, or other 

consideration. See Retail Software, 854 F.2d at 23. 

Finally, each of the Moving Luxalpha Director Defendants certainly exercised “some 

control” over Luxalpha’s investment activity. “The required control need not rise to the level of 

absolute control over the acts or decisions of the putative agent; rather, it may involve the ability 

of the principal to influence such acts or decisions by virtue of the parties’ respective roles.” 

Scholastic, Inc. v. Stouffer, No. 99 Civ. 11480 (AGS), 2000 WL 1154252, at *5 (S.D.N.Y. Aug. 

14, 2000) (citing CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 366 (2d Cir. 1986)). As 

described above, and among other actions, Hondequin and Egger authorized the opening of 

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Luxalpha’s account with BLMIS and the delegation of custodial and asset management 

authority. Each of Hondequin, Egger, Kranz, and Schroeter then executed resolutions purporting 

to monitor the investment restrictions applied to BLMIS, and approved sales prospectuses for 

Luxalpha that made no mention of Madoff, despite knowing that Luxalpha was entirely invested 

in BLMIS and had delegated custodial and trading authority for Luxalpha to BLMIS. Each 

Moving Luxalpha Director Defendant also participated in Luxalpha’s response to the collapse of 

BLMIS, and Hondequin and Schroeter even signed two customer claims on the fund’s behalf. 

The Moving Luxalpha Director Defendants exercised more than “some control” with respect to 

Luxalpha—indeed, they were “primary actors” who exercised authority, direction, and control 

over the fund’s investment into New York. See Retail Software, 854 F.2d at 22 (finding 

jurisdiction over “primary actor[s] in the transaction in New York” who were not “some 

corporate employee[s] . . . who played no part in” it) (quoting Kreutter, 522 N.E.2d at 45) 

(alterations in original). Luxalpha’s contacts with the forum should be imputed to each of them 

because of this agency relationship. 24 

24 The Moving Luxalpha Director Defendants rely on cases where courts have dismissed individual defendants 

where plaintiffs have pled only conclusory allegations, or have not pled facts demonstrating meaningful control or 

action with respect to the events giving rise to jurisdiction. (UBS Mot. at 20–23 (citing In re Terrorist Attacks on 

Sept. 11, 2001, 718 F. Supp. 2d 456, 484 (S.D.N.Y. 2010) (dismissing individuals from complaint naming hundreds 

of foreign parties where claims were “too attenuated”); Duravest, Inc v. Viscardi, A.G., 581 F. Supp. 2d 628, 634–35 

(S.D.N.Y. 2008) (dismissing individual where only contact with forum was one letter sent to investors); In re 

AstraZeneca Sec. Litig., 559 F. Supp. 2d 453, 467 (S.D.N.Y. 2008) (dismissal of individual directors where plaintiff 

only alleged via a complaint “merely conclusory statements” that directors had knowingly distributed misleading 

reports); Alki Partners v. Vatas Holding GMBH, 769 F. Supp. 2d 478, 489–90 (S.D.N.Y. 2011) (dismissing three 

individual defendants where plaintiff had put forward only conclusory statements of fraud, but exercising 

jurisdiction over additional individual and his bank employer where they provided “affirmative advice” to plaintiffs 

relating to the fraud); Time, Inc. v. Simpson, No. 02 Civ 4917 (MBM), 2003 WL 23018890 at *5–7 (S.D.N.Y. Dec. 

22, 2003) (dismissing claim against individual where “no evidence” that individual “exercised control over... or had 

any personal involvement in any decisions made by or action taken by” corporation); Sedona Corp. v. Ladenburg 

Thalmann & Co., No. 03 Civ. 3120 (LTS) (THK), 2006 WL 2034663, at *8–9 (S.D.N.Y. July 19, 2006) 

(jurisdiction does not exist where plaintiff has put forward “generalized allegations” of conspiracy by foreign 

defendants backed only by SEC filings showing control relationships between defendants).) In contrast to the 

situations presented by these cases, the Trustee has presented evidence that each of the Moving Luxalpha Director 

Defendants took numerous actions to operate and control a feeder fund invested entirely in New York, a showing 

that, if need be, can be bolstered by jurisdictional discovery. 

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C. The Court has Jurisdiction Over the Moving Access Defendants and 

Delandmeter 

The Moving Access Defendants and Delandmeter are subject to this Court’s jurisdiction 

because of their purposeful and systematic direction of investment activity into BLMIS through 

the Luxalpha and Groupement, and their servicing of this activity. Both Luxalpha and 

Groupement were funds created, operated and serviced by Access and its co-founders Littaye 

and Villehuchet, in partnership with UBS. Littaye regularly traveled to New York, at least once 

a quarter, to meet with Madoff at BLMIS’s offices. (Pergament Decl. Exs. 88 at 23:21–25; 89 at 

40:7–41:13.) In addition, Littaye occasionally brought Access’s foreign clients and investors to 

New York to meet with Madoff. (Pergament Decl. Ex. 89 at 41:18–22.) These quarterly 

meetings at BLMIS’s New York office were essential to Littaye and Madoff’s continued 

business relationship and to Access’s continued servicing and marketing of its BLMIS-related 

funds. Littaye and Villehuchet worked in conjunction with Delandmeter, who played numerous 

roles for Access, including establishing the articles of incorporation for Luxalpha, and serving as 

Luxalpha’s director and legal advisor. (Pergament Decl. Ex. 7 at 1; Am. Compl. 31.) 

1. Littaye and Villehuchet Operated Access’s International Operations 

as a Single Business Enterprise out of Access’s New York Office 

Although each of the Moving Access Defendants were legally separate entities, in reality 

they operated in conjunction with Access’s New York headquarters as a single business 

enterprise owned and controlled by Littaye and Villehuchet to funnel money into BLMIS. New 

York-based AIA Inc. was founded in 1995 as a marketer and distributor of other entities’ hedge 

fund products. (Am. Compl. 82; Ex. 1 at 8.) 25 It later evolved into a manager for its own 

hedge funds and investment products. (Am. Compl. 82–83.) While Access offered some 

25 AIA Inc. was dissolved in 2010. (See Pergament Decl. Ex. 90.) 

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non-Madoff funds to its investors, the majority of Access’s assets under management (which at 

their peak exceeded $3 billion) were handed over to Madoff. (Id. 88.) As of 2005, fifty-two 

percent of assets placed through Access were invested at BLMIS, accounting for sixty-one 

percent of Access’s total net revenue. (Id.) Access’s relationship with Madoff was vital to its 

very existence. (Id.) 

As Access’s portfolio of Madoff-related investment funds grew, Littaye and Villehuchet 

created a complex web of subsidiaries and affiliates in New York, the Bahamas, London, 

Luxembourg, and Switzerland. In 1998, Littaye and Villehuchet created Moving Access 

Defendant AIA Ltd. (originally incorporated as Alternative Advisors Limited) in the Bahamas. 

(Am. Compl. 24; Pergament Decl. Ex. 91.) In 2000, Littaye and Villehuchet founded Moving 

Access Defendant AIA Europe in London. (Am. Compl. 23; Pergament Decl. Ex. 92.) By the 

end of 2001, AIA Inc. created a wholly owned subsidiary, Defendant AIA LLC, which was 

incorporated under the laws of Delaware but had its only office at 509 Madison Avenue in New 

York. (See Pergament Decl. Ex. 93; Am. Compl. 22.) AIA LLC and AIA Inc. shared this 

office. In 2003, AIA Inc. and AIA Europe jointly created an entity in Luxembourg, Moving 

Access Defendant AIA (Lux), which was renamed AML in August 2008. (Pergament Decl. Exs. 

94 at 1; 95 at 1–2.) In 2007, Littaye and Villehuchet created the Access-affiliated entities and 

Moving Access Defendants AP (Lux) in Luxembourg and AP (Suisse) in Switzerland. (Am. 

Compl. 25–26; Pergament Decl. Exs. 96 at 1; 97 at 1.) Each of the Moving Access 

Defendants, as well as AIA LLC, purported to play a critical role in Luxalpha and Groupement. 

(See Am. Compl. 22–27.) 

Littaye and Villehuchet were the founding partners, chairmen, and chief executive 

officers of Access and “the overseers of the [Access] empire.” (Pergament Decl. Exs. 88 at 

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37:11–12; 98 at 7.) Access’s coordinated activity was directed by Littaye and Villehuchet out of 

the New York office. Marketing materials prepared by Access’s New York office refer to 

Access as a single company that was “[b]ased in New York City, with additional European 

offices in Paris, London and Luxembourg.” (Pergament Decl. Ex. 99 at 3.) Nearly all Access 

personnel, including Littaye and Villehuchet, attended Quarterly Strategic Meetings in New 

York, where they discussed changes relating to the structure and management of Access. 

(Pergament Decl. Exs. 89 at 41:23–43:12; 100-102.) These meetings, which were often attended 

by potential or current Access clients and investors, featured substantive discussions and 

presentations regarding Access’s business, including discussions of Access’s involvement with 

BLMIS-related funds and the duties of the various Access affiliates with regard to these funds. 

(Id.) The Quarterly Strategic Meetings also included a special “executive session,” during which 

Littaye, Villehuchet, and other Access managers discussed Access’s operational policies, 

including budgets for the upcoming year, salaries, and hiring decisions. (Pergament Decl. Ex. 89 

at 110:20–111:13.) Access’s New York office purported to perform all of the due diligence, 

monitoring, strategy formation, and risk assessment duties for the Madoff-related investments. 

(Pergament Decl. Exs. 89 at 30:3–31:25, 39:16–21, 47:4–49:8, 57:9–58:16, 74:20–76:10, 81:21– 

82:6; 88 at 22:23–23:10.) 

2. Access Ignored Corporate Formalities with Regard to Its 

International Affiliates and Treated Its Business as One Entity 

Littaye, Villehuchet, and other Access personnel ignored the corporate separateness of 

the various Access entities and, in internal and external documents, held themselves out as one 

New York-based entity with multiple offices, variously referred to as Access Group, Access 

International Advisor Group, Access International Advisors, or simply Access. For example, 

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Access maintained a website with the URL www.AIAGroup.com. 26 (Pergament Decl. Ex. 98 at 

1.) A marketing document from July 2007 states, “Access has a staff of 20 employees located in 

the U.S.A. and Europe.” (Id. at 5.) And a 2008 report stated, “The company currently employs 

23 people who are divided into 4 offices between Europe (Paris, London, and Luxemburg) [sic] 

and the US (New York City.) Luxembourg is only a legal entity.” (Pergament Decl. Ex. 105 at 

13.) 

Marketing materials prepared by Access did not list employees as working for a specific 

entity; rather, they were grouped by function and responsibility. (Pergament Decl. Ex. 98 at 8.) 

As of 2008, its 25 employees were divided between an investor relations department, risk and 

portfolio management department, and administration, with none of these employees located in 

the Bahamas, Luxembourg or Switzerland—where Defendants AIA Ltd., AML and AP (Lux), 

and AP (Suisse), respectively, were incorporated. (See Pergament Decl. Ex. 106 at 8.) Access 

employees worked for, or were affiliated with, several entities at the same time. Access principal 

and Defendant Theodore Dumbauld stated that he “theoretically worked for multiple Access 

entities;” although he was paid by the New York-based AIA LLC, he also “had contracts . . . 

with maybe three different entities,” including “a London-based entity and then maybe a Paris or 

French-based entity.” (Pergament Decl. Ex. 88 at 29:6-17.) Also, several employees had email 

addresses for more than one Access entity. For instance, John Baker, who worked for AIA 

Europe in London, had the email addresses “jbaker@aiallc.us” (Pergament Decl. Ex. 107,) 

26 This website stated, “ACCESS INTERNATIONAL ADVISORS INC. together with its affiliates and subsidiaries 

(the ACCESS Group) is an investment advisory firm specializing in alternative investments.” (Aiagroup.com as of 

March 28, 2003, http://web.archive.org/web/20030219100423/http://www.aiagroup.com/ (accessed under 

aiagroup.com in the Internet Archive index). A general access email account under the name “AccessGroup” with 

the address “accessgroup@mailaiagroup.com” was used at least by Littaye and AIA Europe employee John Baker. 

(See, e.g., Pergament Decl. Exs. 103, 104.) 

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“jbaker@accessmanlux.com” (Pergament Decl. Ex. 108,) and “jbaker@aiagroup.com.” 


Various Access entities also performed work for one another, without regard for 

corporate separateness. For example, a fee sharing schedule was drafted on Bahamas-based AIA 

Ltd. letterhead, but refers to “A.I.A.,” “Access,” and the “A.I.A. Group” throughout, including in 

the section referencing the fees received in connection with Groupement and Luxalpha. 

(Pergament Decl. Ex. 110.) The various Access entities also worked as a cohesive unit on 

coordinated initiatives, as typified by a December 3, 2008 email with the subject line 

“Coordination Mailing – December 03” that was sent to employees across numerous Access 

offices. (Pergament Decl. Ex. 111.) 27 

Access’s interconnected and undifferentiated nature demonstrates that none of its 

constituent components had any independent business and none could have operated separately 

from Access’s collective business enterprise. In fact, without the direction and operational 

control of the New York office, there would be no reason for any of the Moving Access 

Defendants to exist. Littaye and Villehuchet dominated and controlled each and every Access 

entity, establishing and operating them for the purpose of benefiting from BLMIS’s New York- 

based operations; to put money into, and take it out of, New York. Therefore, and as 

demonstrated below, in addition to the direct ties between each Moving Access Defendant and 

the forum, jurisdiction is also predicated on each Moving Access Defendant’s status as a mere 

27 New York-based AIA Inc. and AIA LLC, along with Moving Access Defendants AIA Ltd., AIA Europe, AP 

(Suisse), and AP (Lux) also maintained professional liability insurance through a single insurance policy, rather than 

on separate policies, provided by Executive Risk Indemnity Inc., a United States-based insurer. (Pergament Decl. 

Ex. 112.) 

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department of Access’s New York office. 28 Additionally, jurisdiction over each Moving Access 

Defendant is proper because Access’s New York office acted as its agent in New York. 

3. The Five Moving Access Defendants are Subject to Jurisdiction 

Because They Directed Investments into BLMIS in New York 

The Court may exercise specific jurisdiction over the each of the Moving Access 

Defendants—AIA Europe, AIA Ltd., AML/AIA (Lux), AP (Lux), and AP (Suisse)—as a result 

of their direct and systematic contacts with New York. These entities played vital roles that 

made it possible for Luxalpha and Groupement to function and invest in New York. Each 

collected fees or other compensation as a result of services they purported to provide for 

Luxalpha and/or Groupement. These fees originated from funds transferred to and from BLMIS, 

the recovery of which is one purpose of the Trustee’s lawsuit. Their roles in the management 

and administration of the feeder funds demonstrate that these entities purposefully and 

systematically directed investments into New York, and are thus subject to this Court’s specific 

jurisdiction in a lawsuit directly bearing upon that activity. See Maxam 460 B.R. at 117–18; 

Chais, 440 B.R. at 278–80; Cohmad, 418 B.R. at 80–81; Cromer, 137 F. Supp. 2d at 476–77. 

The functions of each Moving Access Defendant that demonstrate its direction of 

investment activity into BLMIS through Luxalpha and/or Groupement, and evidence of fees or 

other compensation each Moving Access Defendant was entitled to receive as a result of this 

activity, are described below: 

� AIA Europe 

o Served as official administrative agent of Groupement and related fund Groupement 

Levered until 2005 (Am. Compl. 23; Pergament Decl. Exs. 113; 114 at 3.) Also 

28 The entities that comprised Access’s New York office, Defendant AIA LLC (which has not contested jurisdiction) 

and now-defunct AIA Inc. operated out of Access’s office in New York on an ongoing and continuous basis, 

subjecting Access’s New York operations to the Court’s general jurisdiction. (See Am. Compl. 22; Pergament 

Decl. Exs. 1 at 8 – 10; 98 at 7 – 8; Chloe, 616 F.3d at 164). In addition, among other contacts, AIA LLC is subject 

to the Court’s specific jurisdiction through its role as Luxalpha’s portfolio advisor. (Am. Compl. 22.) 

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performed “back office” functions to support Groupement’s investments in BLMIS until 

the collapse of BLMIS in December 2008 (See, e.g., Pergament Decl. Ex. 115.) 

� Tracked Groupement’s NAV, created technical analysis reports about Groupement, 

and corresponded with Access’s New York office about these topics (Id; Pergament 

Decl. Ex. 116.) 

� Corresponded with Access’s New York office regarding processing of redemptions 

from Groupement (Pergament Decl. Ex. 117.) 

� Sent redemption requests for Groupement directly to BLMIS in New York 


� Spoke with BLMIS employees in New York directly about monies coming in from 

Groupement and to track BLMIS’s movements in the market (Pergament Decl. Ex. 

119.) 

o Performed “back office” functions to support Luxalpha’s investments in BLMIS from its 

London office until the collapse of BLMIS in December 2008 (Am. Compl. 23.) 

� Tracked Luxalpha’s performance and cash calculations, and corresponded with 

Access’s New York office about these topics (Pergament Decl. Exs. 120-122.) 

� Received monthly account statements from BLMIS in New York, and directed 

Luxalpha investor money into the custody of BLMIS (Pergament Decl. Exs. 123, 

124.) 

o Received compensation for its “costs and expenses” from other Access entities, including 

New York-based AIA Inc., with respect to services provided to Luxalpha and 

Groupement (See Pergament Decl. Ex. 125 at 1.) 

� AIA Ltd. 

o Served as official investment manager for Groupement and Groupement Levered until 

July 2007 (Am. Compl. 24; Pergament Decl. Exs. 114 at 2; 18 at 6.) 

� Required to “arrange for the asset management of the Fund . . . in accordance with the 

investment objectives and policies of the Fund,” and perform “surveillance and 

constant review” of Groupement’s assets (Pergament Decl. Ex. 126 at 3-4.) 

� Entitled to receive an annual management fee and a performance fee from 

Groupement, both of which were based on Groupement’s NAV (Id. at 4 & App’x 1.) 

o Also served as official “client introducer” for Luxalpha (Pergament Decl. Ex. 127.) 

� Had responsibility to 

(Id. at 1.) 

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� Entitled to receive fees 

(Id. at 4; Pergament Decl. Ex. 128.) 

o Considered by Access to be its “money box” (Pergament Decl. Ex. 129 at 2.) 

� AML (and predecessor AIA (Lux)) 

o AIA (Lux) served as Luxalpha’s official portfolio advisor from February 4, 2004 until 

August 1, 2004 (Am. Compl. 26.) 

� Advised UBS SA in connection with UBS SA’s official role as portfolio manager of 

Luxalpha (Pergament Decl. Ex. 130.) Tasked with compliance with the “investment 

restrictions” applicable to Luxalpha and “surveillance and constant review” of 

Luxalpha’s assets (Id. at 3-4.) 

� Entitled to receive fees in connection with this role (See id. at 4.) 

o AIA (Lux) also served as official investment advisor for Groupement, until function 

replaced by AP (Lux) in 2007 (Pergament Decl. Exs. 131; 135 at 2.) 

� Required to advise Groupement on matters relating to its portfolio, its investment 

objectives, and to liaise with Groupement’s principal banker and administration agent 

(Pergament Decl. Ex. 131 at 2-3.) 

� Entitled to receive both an advisory fee and a performance fee from Defendant AIA 

Ltd, each of which was tied to Groupement’s NAV (Id. at App’x 1-2.) 

o AML served as Luxalpha’s official portfolio manager from November 17, 2008 through 

the fund’s liquidation (Am. Compl. 26.) 

� AP (Lux) 

� Had responsibility to “distribute, market and promote the Fund,” to “solicit and 

transmit subscription orders,” to “receive and transmit redemption and conversion 

orders,” to “receive from investors payment . . . for their subscription,” and . . . 

“where applicable allocate to Investors, . . . the Shares to be issued to them” 


� Entitled to receive from Luxalpha a quarterly fixed fee based on the fund’s trading 

assets, and a quarterly performance fee based on the performance of the fund’s 

trading assets (Id. at 22.) 

o Served as Luxalpha’s official investment advisor from February 13, 2007 through the 

fund’s liquidation (Am. Compl. 27.) 

� Had responsibility to advise Luxapha’s portfolio managers UBSTPM and AML with 

regard to investment recommendations (Am. Compl. 27; Pergament Decl. Exs. 133 

at 7, 17; 11 at 7, 16.) 

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� Entitled to receive from Luxalpha’s portfolio manager “remuneration . . . consisting 

of a fixed fee and a performance fee” (Pergament Decl. Ex. 134 at 3.) 

o Also served as official investment advisor to Groupement from 2007 through the collapse 

of BLMIS (Pergament Decl. Exs. 135 at 2.) 

� Entitled to receive part of the management fees and performance fees received by 

Groupement’s investment manager (Id. at 3.) 

� AP (Suisse) 

o Served as official investment manager of Groupement beginning in August 2007, taking 

over this role from AIA Ltd. (Am. Compl. 25; Pergament Decl. Exs. 135 at 2.) 

� Entitled to receive a performance fee and a management fee from Groupement in 

connection with this role (Pergament Decl. Exs. 135 at 2.) 

4. AIA Europe Is Further Subject to Jurisdiction Because of Its Mere 

Department and Agency Relationships with Access’s New York Office 

This Court also has jurisdiction over AIA Europe because it was as a mere department of 

the Access’s New York office and because of its agency relationship with that office. 

The threshold issue for mere department analysis, common ownership, is satisfied 

because AIA Europe and Access’s New York-based entities, AIA LLC and AIA Inc., were 

ultimately owned by the same parties: Littaye and Villehuchet. See Van Egeraat, 2009 WL 

1209020, at *2. 29 

29 AIA LLC was a wholly owned subsidiary of AIA Inc. (Corporate Ownership Statement [S.D.N.Y. ECF No. 5 at 

3.]) AIA Inc. itself was ultimately owned by Littaye and Villehuchet; together, they were the ultimate exclusive or 

near-exclusive shareholders of AIA Inc. until it dissolved in July 2010. (Pergament Decl. Exs. 136, 137.) 

Villehuchet directly owned his shares of AIA Inc. (See Pergament Decl. Ex. 138.) Littaye owned his shares through 

intermediaries—first through EarthStreet Ltd. (“EarthStreet”) and later through Dalestrong Ltd. (“Dalestrong”)— 

both entities which he controlled. (Pergament Decl. Exs. 136; 137; 139 at 2.) Although Access principal Theodore 

Dumbauld appears to have possessed a 4% stake in AIA Inc. for a period of time (see Pergament Decl. Ex. 137,) this 

does not change the mere department finding. See e.g., ESI, Inc., 61 F. Supp. 2d at 52 (90% common ownership 

sufficient); Jayne v. Royal Jordanian Airlines Corp., 502 F. Supp. 848, 852, 859 (S.D.N.Y. 1980) (88% common 

ownership sufficient). Separately, Access’s own documents state that AIA Europe’s ownership was “identical” to 

that of AIA Inc. (Pergament Decl. Ex. 140.) This is confirmed by public documents, which disclose that AIA 

Europe was owned 50% by Villehuchet and 50% by Littaye through Dalestrong. (Pergament Decl. Ex. 141.) 

Further, several of AIA Europe’s annual reports refer to Littaye and Villhuchet as “the ultimate controlling party.” 

(Pergament Decl. Exs. 142 at 13; 143 at 12.) 

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The relationship between AIA Europe and Access’s New York office also meets all of 

the other criteria that courts consider when determining whether an entity is the mere department 

of a related entity, namely, financial interdependence, interference with personnel and disregard 

for corporate formalities, and control over operational and marketing policies. Van Egeraat, 

2009 WL 1209020, at *2. First, AIA Europe’s London office served as Access’s “back office” 

with respect to Luxalpha and Groupement, and served in a support role to Access’s New York 

office. (Am. Compl. 23.) Its duties included calculating the NAV, maintaining shareholder 

registries, and instructing banks to transfer and hold monies. (Pergament Decl. Ex. 125.) AIA 

Europe would not have had any purpose without the activities of Access’s New York office, and 

those of its co-founders Littaye and Villehuchet, who marketed Luxalpha, Groupement, and 

other BLMIS feeder funds to investors and directed such activity to BLMIS in New York. AIA 

Europe was thus financially and operationally dependent on its New York affiliate. 

Second, Littaye, Villehuchet, and Access failed to observe corporate formalities with 

regard to AIA Europe, including interference with personnel. For example, Access principal and 

Defendant Theodore Dumbauld stated he “theoretically worked for multiple Access entities,” 

and although he was paid by AIA LLC, he also “had contracts” with several Access entities, 

including “a London-based entity,” which is AIA Europe. (Pergament Decl. Ex. 88 at 29:6–16.) 

Similarly John Baker, an AIA Europe employee based in London, had email addresses that 

indicated that he worked for AIA LLC, AML, and generally for the Access Group. (Pergament 

Decl. Exs. 107-109.) Notes from the December 2004 Quarterly Strategic Meeting show that 

Dumbauld was seeking to hire a new staff member in New York because the AIA Europe office 

in London was not caught up on its back office work, and Bill Rapavy, a New York employee, 

was also overworked. (Pergament Decl. Ex. 144 at 2.) Notes from the July 2005 Quarterly 

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Strategic Meeting state that Bill Rapavy was still overworked, and that AIA Europe employee 

John Baker needed to travel from London to help the New York office. (Pergament Decl. Ex. 

145 at 3.) The marketing materials prepared by Access’s New York office refer to AIA Europe 

simply as Access’s London office, stating that Access was a single company that was “[b]ased in 

New York City, with additional European offices in Paris, London and Luxembourg.” 

(Pergament Decl. Ex. 99 at 3.) Finally, AIA Europe’s marketing and operational policies, along 

with those of every other Access entity, were controlled by Littaye and Villehuchet on an 

Access-wide basis. Each of the factors of the mere department test is thus satisfied, establishing 

AIA Europe as a mere department of Access’s New York office for purposes of jurisdiction. See 

Van Egeraat, 2009 WL 1209020, at *3–4 (finding mere department relationship where “entities 

function together as a single firm” and “corporate formalities were not infrequently disregarded 

and operational policies were set from the top down”); Dorfman, 2002 WL 14363, at *11 

(holding that mere department relationship is satisfied where domestic parent exercises 

“sufficient control over the operations of [foreign subsidiary], despite the maintenance of 

corporate formalities”). 

Jurisdiction over AIA Europe is also proper because Access’s New York office acted as 

AIA Europe’s agent in New York. Because AIA Europe was part of Access’s single business 

enterprise, and because AIA Europe operated to support the New York office and could not have 

functioned without it, the jurisdictional contacts of Access’s New York office should be imputed 

to AIA Europe. See id. at *11 (finding jurisdiction over foreign subsidiary of domestic parent 

under agency theory where subsidiary functioned as a “component of a worldwide business” and 

“could not function without the management and coordination carried out by [parent]”); Bialek v. 

Racal-Milgo, Inc., 545 F. Supp. 25, 32–33 (S.D.N.Y. 1982) (sustaining jurisdiction over foreign 

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affiliate of domestic corporation where both were “components of a tightly-knit commercial 

organization of common-owned entities”). 

5. AIA Ltd. Is Further Subject to Jurisdiction Because of Its Agency and 

Mere Department Relationships with Access’s New York Office 

Although officially designated as Groupement’s investment manager and Luxalpha’s 

client introducer, AIA Ltd. had no employees, no real office space, and was not licensed 

anywhere in the world to act as an investment manager, as it purported to do for Groupement. 

According to a New York employee, the entity was incorporated offshore in the Bahamas 

because “Bernie Madoff wants to only deal with offshore entities related to our accounts.” 

(Pergament Decl. Ex. 113.) In short, AIA Ltd. was a shell entity established to collect fees on 

behalf of Access. 

Access regarded AIA Ltd. as a “money box,” with its “prime purpose” being “the receipt 

of fees on behalf of the group.” (Pergament Decl. Ex. 129 at 2.) As of September 2004, 

although AIA Ltd. had “a significant level of financial activity” with year 2004 budgeted 

expenses of $577,000, it had “limited physical evidence of being an actual company.” 

(Pergament Decl. Ex. 146.) 30 As of 2007, AIA Ltd. was not licensed in any jurisdiction to act as 

an investment manager anywhere and it was acknowledged within Access that AIA Ltd. did not 

actually perform the duties of investment manager for Groupement. (Pergament Decl. Ex. 129.) 

AIA Ltd. relied on Access personnel in New York to perform its work for Luxalpha and 

Groupement. Access personnel in New York compiled reports on Luxalpha and Groupement’s 

activities, which included information regarding visits by New York employees to BLMIS, 

30 AIA Ltd. did not have an office anywhere until at least January 15, 2005. (See Pergament Decl. Ex. 147 at 2.) 

Though two 2008 AIA contact lists show an address for AIA Ltd. at 50 Shirley Street, 2nd Floor, Nassau, Bahamas, 

there are no Access employees listed as having phone numbers in the Bahamas or email addresses associated with 

AIA Ltd. (Pergament Decl. Exs. 148, 109.) 

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Luxalpha and Groupement’s performance for the period, and BLMIS’s purported entrances and 

exits from the stock market. (See, e.g., Pergament Decl. Exs. 149-151.) If there was any doubt 

that the work of AIA Ltd. was performed in New York, these reports themselves explicitly state 

that they were “[p]repared by [New York-based] Access International Advisors, Inc. for Access 

International Advisors Limited.” (Pergament Decl. Exs. 149 at 2; 150 at 2, 10-13; 151 at 2, 14– 

19.) 

If Access’s New York office had not performed these analyses and generated reports on 

BLMIS’s activities for AIA Ltd., AIA Ltd. would have had to perform those activities itself. But 

with no employees, it is obvious that AIA Ltd. could not have done so. Nor could it meet its 

obligations to introduce prospective clients to Luxalpha, or meet its investment manager 

obligations to Groupement itself. These and other duties were performed by Littaye and 

Villehuchet, who each were present in New York for purposes of jurisdiction, and other Access 

principals. As such, Access’s New York office acted as the agent of AIA Ltd., and AIA Ltd. is 

therefore subject to the jurisdiction of the Court. See Van Egeraat, 2009 WL 1209020, at *2–4 

(finding personal jurisdiction based on the presence and activities of an affiliated entity where 

the New York entity “renders services on behalf of the foreign corporation that . . . are 

sufficiently important to the foreign entity that the corporation itself would perform equivalent 

services if no agent were available” (internal quotations omitted)); see also Bulova, 508 F. Supp. 

at 1334 (courts “look to realities rather than to formal relationships” when determining 

jurisdiction based on parent-subsidiary relationships). 

Additionally, AIA Ltd. is also subject to jurisdiction because it is a mere department of 

Access’s New York office. AIA Ltd. was owned completely (or nearly completely) by Littaye 

and Villehuchet, who were also the owners of the AIA LLC and AIA Inc. entities that comprised 

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Access’s New York office. 31 Each of the other factors of the mere department test is also 

satisfied as to AIA Ltd., because of its lack of independent operations as well as its domination 

by Access’s New York office, without which AIA Ltd. would not have survived. See Van 

Egeraat, 2009 WL 1209020, at *2–4; Motown Record Co., L.P. v. iMesh.com, Inc., No. 03 Civ. 

7339 (PKC), 2004 WL 503720, at *5 (S.D.N.Y. Mar. 12, 2004) (“Factually, the last three 

elements meld together in this case because the entities do not treat themselves as separate. The 

blur between [the parent and subsidiary] is pervasive.”). By serving as a financially dependent 

“money box,” and having no employees of its own to perform any of its purported duties, which 

were performed by other Access employees, AIA Ltd. was in fact a mere department of Access’s 

New York office. 

6. AML Is Further Subject to Jurisdiction Because of Its Agency and 


AML is also subject to this Court’s jurisdiction because Access’s New York office acted 

as AML’s agent, and because of AML’s mere department relationship with Access’s New York 

office. Like AIA Ltd., AML had no employees of its own to conduct the activities it purported 

to perform on behalf of Luxalpha and Groupement. AML appears to have been a shell entity 

established in Luxembourg and subject to the control of majority owners Littaye and Villehuchet 

for the purpose of facilitating the administration of Luxalpha and Groupement. 32 To the extent 

31 In May 2003, AIA Ltd. was 51% owned by EarthStreet (which was ultimately owned by Littaye) and 49% by 

AIA Inc. (which was ultimately owned by Littaye and Villehuchet). (Pergament Decl. Exs. 136; 139 at 2.) By 

2005, AIA Ltd. was 45% owned by AIA Inc., 24% owned by Villehuchet, 24% owned by Pause Group (which was 

ultimately owned by Littaye through Dalestrong), and 7% owned by Access principal Philippe Junot. (Pergament 

Decl. Exs. 137; 139 at 2.) And according to Access’s July 2011 Corporate Ownership Statement filed in this 

proceeding, AIA Inc., Littaye-controlled entity Dalestrong, and Ms. Villehuchet each own a 33% interest in AIA 

Ltd. [S.D.N.Y. ECF No. 5.] Thus, at all relevant times, AIA Ltd. appears to have been at least 93% ultimately 

owned by Littaye and Villehuchet, satisfying the threshold common ownership prong of the mere department test. 

See, e.g., ESI, Inc., 61 F.Supp.2d at 52 (90% common ownership sufficient). 

32 A September 2004 questionnaire states that AIA (Lux) has “no regular employees” and that the directors and/or 

officers carry out its responsibilities. (Pergament Decl. Ex. 152 at 7–8.) The areas of trading, research and 

development, IT/Programming, administration, marketing and business development are all “outsourced,” with only 

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AML had any actual corporate duties or responsibilities, these were carried out by Access’s New 

York office (or AIA Europe’s London office at the direction of the New York office), such that 

the jurisdictional contacts of Access in New York should be imputed to AML. See Van Egeraat, 

2009 WL 1209020, at *2–4; see also In re Nat’l Audit Def. Network, 332 B.R. at 905–06 (Bankr. 

D. Nev. 2005) (“[A foreign party] may not avoid jurisdiction in the United States by 

conveniently interposing a subsidiary between its acts and the debtor.”). 

AML is also subject to jurisdiction because it is a mere department of Access’s New 

York office. The threshold inquiry of common ownership is satisfied because AML was 

majority owned by Littaye and Villehuchet and, therefore, was owned by the same parties as 

Access’s New York office. 33 The other factors of the mere department test are similarly satisfied 

because AML was as an entity with no employees that nonetheless earned substantial fees from 

Luxalpha and Groupement in connection with investment services purportedly provided by AML 

to these funds. AML was able to earn such fees because it was dominated and controlled by, and 

financially dependent on, Access’s New York headquarters which operated AML and the other 

“reporting, performance analysis” performed by Litttaye and compliance performed by Delandmeter. (Id.) 

Likewise, another Access document notes that Access had offices and employees in New York, London, and Paris, 

but that “Luxembourg is only a legal entity.” (Pergament Decl. Ex. 105 at 13.) A 2008 contact list for various 

Access entities, including AML, shows only Littaye with a phone number associated with AML, and lists only 

Littaye and Delandmeter (who are both subject to the Court’s jurisdiction) with any Luxembourg contact 

information. (Pergament Decl. Ex. 109.) And numerous organizational charts prepared by Access reveal that the 

risk management functions that AML purported to perform were actually conducted by employees and directors of 

Access’s New York office. (See Pergament Decl. Exs. 153; 98 at 8; 154.) 

33 From its inception as AIA (Lux) in 2003 through its renaming as “AML” in 2008, AML was ultimately majorityowned 

by Littaye and Villehuchet. When AIA (Lux) was formed in 2003, AIA Inc. owned 50% while AIA Europe 

owned 30%--each of which was ultimately owned by Littaye and Villehuchet. (Pergament Decl. Exs. 94 at 6; 136.) 

The remaining 20% was owned by Banque Degroof Luxembourg S.A. (“Banque Degroof”). (Pergament Decl. Ex. 

94 at 6.) In February 2007, Littaye, Villehuchet, and Banque Degroof created the Luxembourg-based Access entity 

AP (Lux). (Pergament Decl. Ex. 96 at 1.) Littaye and Villehuchet each owned 40% of AP (Lux), and Banque 

Degroof owned the remaining 20%. (Id. at 7.) In March 2008, AP (Lux) purchased all of AIA Inc. and AIA 

Europe’s shares of AIA (Lux), thereby becoming the owner of 80% of AIA (Lux). (Pergament Decl. Ex. 155 at 1.) 

AP (Lux) maintained its eighty percent ownership of the company after AIA Lux changed its name to AML in 

August 2008. (Pergament Decl. Ex. 95 at 3.) And according to Access’s July 2011 Corporate Ownership Statement, 

AML is owned 40% by Littaye-controlled entity Dalestrong, 40% by Ms. Villehuchet, and 20% by Banque Degroof. 

[S.D.N.Y. ECF No. 5 at 3.] 

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foreign Access subsidiaries as a single business enterprise managed out of New York, without 

which AML could not have survived. See Van Egeraat, 2009 WL 1209020, at *2–4; Dorfman, 

2002 WL 14363, at *11. 

7. AP (Lux) Is Further Subject to Jurisdiction Because of Its Agency and 


AP (Lux) is also subject to this Court’s jurisdiction because of its agency and mere 

department relationships with Access’s New York office. As with the other Luxembourg-based 

Moving Access Defendant AML, AP (Lux) was “only a legal entity,” with no employees of its 

own. (Pergament Decl. Ex. 105 at 13.) 34 Although analyses on AP (Lux) letterhead were 

distributed for both Groupement (Pergament Decl. Exs 156, 157,) and Luxalpha (Pergament 

Decl. Ex. 158, 159,) these analyses could only have been performed by Access employees 

working at the direction of Littaye and Villehuchet, such that the jurisdictional contacts of 

Access’s New York office should be imputed to AP (Lux) as a result of this agency relationship. 

See Van Egeraat, 2009 WL 1209020, at *2–4. 

Jurisdiction over AP (Lux) is also proper because it operated as a mere department of 

Access’s New York office. AP (Lux) was commonly owned by the owners of Access’s New 

York office, Littaye and Villehuchet, who held at least 80% of the shares of AP (Lux). 35 As with 

AML, the other factors of the mere department test are satisfied because AP (Lux) was an entity 

with no employees that nonetheless earned substantial fees from Luxalpha and Groupement in 

34 A 2008 contact list for various entities, including AP (Lux), shows an address and a phone number for the office, 

but not a single Access employee is associated with this phone number, and only two Access principals, Littaye and 

Delandmeter (who are both subject to the Court’s jurisdiction), have any Luxembourg contact information. 


35 Upon its creation in March 2007, AP (Lux) was owned 40% by Littaye, 40% by Villehuchet, and 20% by Banque 

Degroof. (Pergament Decl. Ex. 96.) However, Banque Degroof appears to no longer own a stake in AP (Lux)— 

according to Access’s July 2011 Corporate Ownership Statement, Littaye-controlled Dalestrong and Ms. 

Villehuchet each own 50% of the entity. [S.D.N.Y. ECF No. 5 at 3.] 

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connection with investment services purportedly provided by AP (Lux) to these funds. AML 

earned these fees as a result of it being dominated and controlled by, and financially dependent 

on, Access’s New York headquarters, which operated AP (Lux) and the other overseas Access 

subsidiaries as a single business enterprise managed out of New York, and without which AP 

(Lux) could not have existed. See Van Egeraat, 2009 WL 1209020, at *2–4; Dorfman, 2002 WL 

14363, at *11. 

8. AP (Suisse) Is Further Subject to Jurisdiction Because of Its Agency 

and Mere Department Relationships with Access’s New York Office 

As with AIA Ltd., AP (Suisse) also appears to have been a shell entity created merely to 

accept fees on behalf of Access while nominally serving as Groupement’s investment manager. 

A note from Littaye to Villehuchet suggests AP (Suisse) was created in Switzerland to replace 

Bahamas-incorporated AIA Ltd. as the investment manager for Groupement and Groupement 

Levered due to pressure from the AMF, the French financial regulator, to have the funds’ 

investment manager subject to the supervision of a financial regulatory authority. (Pergament 

Decl. Ex. 160.) However, an Access contact list from 2008 does not show any office in 

Switzerland or any Swiss based employees. (Pergament Decl. Ex. 109.) Additionally while, risk 

analysis reports for Groupement and Groupement Levered appear on AP (Suisse) letterhead, as 

AP (Suisse) had no employees these reports must have been prepared by Access’s New York 

office, which was responsible for risk management functions, or by AIA Europe employees in 

London working at the direction of the New York office. 36 (See, e.g., Pergament Decl. Exs. 162, 

163.) AP (Suisse) appears to have been a shell entity created at the direction of Access as a 

36 It is not clear whether AP (Suisse) ever became a functioning office by the time of BLMIS’s collapse. Indeed, 

Access meeting minutes from December 2008 note that AP (Suisse) was not operational, with the investment 

management agreement between Groupement and AP (Suisse) yet to be formally executed. (Pergament Decl. Ex. 

161 at 4.) These minutes also indicate that investment manager fees from Groupement and Groupement Levered 

continued to be invoiced to previous manager AIA Ltd. through the end of the third quarter of 2008. (Id. at 3.) 

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result of regulatory pressure, which held itself out as Groupement’s investment manager—but in 

reality was operated and managed by Access personnel directed by the New York office. The 

jurisdictional contacts of the New York office should thus be ascribed to AP (Suisse) as a result 

of their agency relationship. Van Egeraat, 2009 WL 1209020, at *2–4. 

Jurisdiction is also appropriate over AP (Suisse) as a mere department of Access’s New 

York office. As to the threshold requirement of common ownership, Littaye and Villehuchet, 

who controlled and owned Access’s New York office, also possessed an ownership stake in AP 

(Suisse). 37 Further, the remaining factors of mere department analysis are satisfied because AP 

(Suisse) was an entity with no employees, and was dominated and controlled by, and financially 

interdependent with, Access’s New York headquarters, which operated AP (Suisse) and the other 

overseas Access subsidiaries as a single business enterprise managed out of New York. See Van 

Egeraat, 2009 WL 1209020, at *2–4; Dorfman, 2002 WL 14363, at *11. 

9. Delandmeter Is Subject to Jurisdiction Because He Undertook 

Numerous Actions Directed at New York 

This Court has specific personal jurisdiction over Delandmeter because he purposefully 

availed himself of the privilege of transacting business in New York and undertook numerous 

actions in the state that were directed at maintaining and enhancing Access’s relationship with 

BLMIS. Delandmeter was among the incorporators of Luxalpha. He also served as Luxalpha’s 

legal advisor, and served on its board as well as the boards of several Access entities. He 

37 Littaye and Villehuchet were among the initial incorporators of AP (Suisse) in May 2007, along with Colin Vidal 

of Aforge Capital Management (“Aforge”). (Pergament Decl. Ex. 164.) Littaye and Villehuchet received equity 

shares in AP (Suisse). (See Pergament Decl. Ex. 165.) However, according to Access’s July 2011 Corporate 

Ownership Statement, an entity called “Access Participation (Luxembourg)” now owns a 100% interest in AP 

(Suisse). [S.D.N.Y. ECF No. 5 at 3.] The Trustee can find no record of a corporation by this name, but a 

corporation named Access Participations S.A. was formed in Luxembourg in 2008. (Pergament Decl. Ex. 166.) At 

incorporation, over 99% of the shares of Access Participations S.A. were assigned to Littaye, with the remaining 

share assigned to Delandmeter. (Id.) Access Participations S.A. was put into liquidation in 2010, with Delandmeter 

serving as the liquidator. (Pergament Decl. Ex. 167.) Given the complexity and changing nature of the ownership 

interests and roles performed by the Moving Access Defendants, if the Court finds that the Trustee has not made a 

prima facie showing of jurisdiction, targeted jurisdictional discovery would help clarify the relevant facts. 

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frequently attended Access’s business meetings and engaged in other BLMIS-related activities in 

New York, including meeting with Madoff in New York. See, e.g., Miller v. Calotychos, 303 F. 

Supp. 2d 420, 425–27 (S.D.N.Y. 2004) (finding jurisdiction over U.K. defendants based in 

substantial part on two lengthy meetings with plaintiff in New York during which the parties 

promoted their joint venture and discussed details regarding ownership and management of 

same); Zainal v. Am.-Europe-Asia Int’l Trade and Mgmt. Consultants, Ltd., 670 N.Y.S.2d 76, 

76-77 (1st Dep’t 1998) (holding that defendant’s meeting in New York to negotiate and enter 

into an agreement “was a purposeful availment of the privilege of conducting business in this 

jurisdiction rather than an insignificant and fortuitous transitory presence”). Delandmeter’s 

participation in meetings in New York to conduct Access’s and Luxalpha’s business was not 

“isolated” but rather was continuous and essential to the success of Access and Luxalpha. This 

proceeding arises directly out of Delandmeter’s contacts with the forum. 

Further, although Delandmeter is not automatically subject to personal jurisdiction in the 

United States because of his role as a corporate officer, his status as a director “does not 

somehow insulate [him] from jurisdiction” arising from his business-related contacts with the 

United States. See In re Bozel S.A., 434 B.R. at 99–100 (internal quotations omitted) (“The fact 

that [defendant]’s contacts with the United States arise from his corporate capacity does not 

shield him from personal jurisdiction. Further, it is unreasonable for [defendant] to believe that 

he could regularly conduct business in the United States and seek the protection of its laws and 

courts, and at the same time believe he could escape the jurisdictional reach of the United States’ 

courts.” (internal citations omitted)). Rather, the Bankruptcy Court may assert specific 

jurisdiction over a corporate officer where the “Adversary Proceeding arises out of [the officer’s] 

duties as a corporate officer and his corresponding contacts with the United States.” Id. at 100. 

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a. Delandmeter Directed His Actions at New York in Furtherance 

of Access’s BLMIS-Related Business 

Delandmeter undertook numerous actions in New York that were purposefully directed at 

maintaining and enhancing Access’s relationship with BLMIS. Delandmeter was a director of 

AIA Inc., a New York-based company, as early as June 2003, as well as a director of other 

Access entities. 38 (Pergament Decl. Ex. 169.) In these roles, Delandmeter came to New York at 

least once or twice a year between 2004 and 2008 to make presentations about Access’s funds at 

Access’s Quarterly Strategic Meetings. (Pergament Decl. Exs. 89 at 41:23–43:12; 100 at 5; 101 

at 5; 102 at 3–4.) 39 Access’s clients sometimes attended these meetings, thereby providing 

Delandmeter and the other Access executives the opportunity to promote their Madoff-related 

funds and further build the Access business. (Pergament Decl. Ex. 89 at 41:23–43:12.) 

Delandmeter also came to New York at least once to accompany Littaye on his quarterly meeting 

with Madoff. (Id. at 41:20–22.) He also signed contracts with BLMIS for at least one fund for 

which he and Littaye served as directors, Benouville Finances Ltd., and he also signed a 

customer claim for that fund in the BLMIS liquidation. (See Pergament Decl. Exs. 170; 171 at 4.) 

b. Delandmeter Directed His Actions at New York in Furtherance 

of Luxalpha’s BLMIS-Related Business 

Delandmeter also took numerous actions aimed at New York in furtherance of 

Luxalpha’s business relationship with BLMIS. Delandmeter served as a director of Luxalpha 

and its legal advisor from 2003 until November of 2008. (Pergament Decl. Exs. 10 at 7; 11 at 7.) 

Delandmeter’s role was more than that of an outside lawyer or legal consultant. Indeed, 

38 In addition, Delandmeter served as a director for several other Access entities, including AIA (Lux), AML, and 

AP (Lux), and as Access’s Luxembourg counsel. (Pergament Decl. Exs. 94 at 7; 168; 96 at 7-8; 89 at 41:20–22.) 

39 Delandmeter argues that he would be “greatly burdened having to defend himself thousands of miles from home, 

where he has no presence.” (Delandmeter Mot. at 18.) Yet Delandmeter had no issue with traveling to and from 

New York on a regular basis to attend meetings and give presentations when he was employed by Access. 

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Delandmeter was involved in nearly every major decision regarding Luxalpha from the fund’s 

inception through its collapse. 

On February 5, 2004, Delandmeter along with UBS SA established Luxalpha’s articles of 

incorporation. (Pergament Decl. Ex. 7 at 1.) That same day, Delandmeter executed a resolution 

that authorized Luxalpha’s relationship with Madoff in New York and the delegation of asset 

management and custodial authority to BLMIS. (Pergament Decl. Ex. 8 at 2–4; see Pergament 

Decl. Ex. 9 at 7–9, 18–21.) He and the Moving Luxalpha Director Defendants then executed 

resolutions that approved and amended sales prospectuses which concealed Madoff’s role as 

actual custodian and asset manager. (Pergament Decl. Exs. 8 at 2; 12; see, e.g., Pergament Decl. 

Ex. 10.) Similarly, Delandmeter approved Luxalpha’s financial statements despite knowing that 

these documents did not disclose Madoff’s role as custodian and asset manager. (See Pergament 

Decl. Ex. 71; see, e.g., Pergament Decl. Ex. 47.) 

Delandmeter also routinely executed board resolutions that protected and preserved the 

Luxalpha-BLMIS relationship. For example, Delandmeter signed a June 20, 2006 report 

confirming that Luxalpha was “in conformity with the determined investment policy” and “the 

investment restrictions as mentioned in the prospectus.” (Pergament Decl. Ex. 14.) On 

numerous occasions, Delandmeter also executed quarterly board resolutions stating that 

Luxalpha’s Board “noted that the monitoring of the management of the various risks to which 

the SICAV is exposed has been performed and has not signaled significant irregularities over the 

period.” (Pergament Decl. Exs. 73-81.) 

Delandmeter also executed agreements on behalf of Luxalpha with UBS and Access 

entities that authorized Luxalpha to pay the management and administrative fees to these 

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entities. 40 Through this lawsuit, the Trustee is seeking the return of these very fees. 

Delandmeter’s actions enabled the subsequent transfer of Luxalpha’s assets—which he knew 

included hundreds of millions of dollars withdrawn from BLMIS—and demonstrate his 

minimum contacts with the forum. 

Through his role on the “Advisory Committee” for UBSTPM, Delandmeter was also 

involved in “determining the investment policy of [Luxalpha],” the “purchase and sale of 

investments in accordance with [Luxalpha’s] investment policy,” and “any matters in relation to 

which the Prospectus provides for the Management Company, or its delegates, to take a 

decision,” to name just a few duties. (Pergament Decl. Ex. 54 at LuxAlpha 00699.) His 

prominent role directing Luxalpha’s response to Madoff’s arrest and the collapse of BLMIS also 

illustrates his high level of involvement with Luxalpha. A few days after Madoff’s arrest, 

Delandmeter notified the key Luxalpha players of the suspension of Luxalpha and the necessity 

to notify the Luxembourg financial regulator. (Pergament Decl. Ex. 82.) Delandmeter 

participated in three days of post-collapse board meetings with the Moving Luxalpha Director 

Defendants that addressed notification of the Luxembourg financial regulator, treatment of 

redemptions, and potential legal action and exposure. (Pergament Decl. Exs. 83-85.) During the 

course of these meetings, Delandmeter and the Moving Luxalpha Director Defendants discussed 

a “partial payment request” of 5 million Euros (over $6 million U.S. dollars) Delandmeter 

submitted on behalf of the “Delandmeter Law Firm” to Luxalpha—demonstrating the significant 

40 For example, he signed the February 2004 Portfolio Management Agreement between Luxalpha and UBS SA, the 

September 2006 Management Company Services Agreement between Luxalpha and UBSTPM, and the November 

2008 Management Company Services Agreement between Luxalpha and AML, pursuant to which UBS SA, 

UBSTPM, and then AML were entitled to receive fees as Luxalpha’s official portfolio management companies. 

(Pergament Decl. Exs. 23 at 6; 52 at LuxAlpha 00424; 132 at 21.) 

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amounts of transfers he appears to have received from the fund. 41 (See Pergament Decl. Ex. 85 

at 3.) 

Notwithstanding Delandmeter’s multiple contacts with the forum, he argues that he is not 

subject to this Court’s jurisdiction because “according to Luxembourg law, a legal advisor such 

as Delandmeter often sits on the board of directors, but he is legally precluded from engaging in 

the day to day business of the enterprise.” (Delandmeter Mot. at 4.) Regardless of Luxembourg 

law on legal advisors, it is clear from the evidence that Delandmeter did in fact engage in the 

day-to-day business of Luxalpha, as well as the Access entities on whose boards he served. 

Likewise, Delandmeter’s consistent participation in the Quarterly Strategic Meetings in New 

York and his meeting with Madoff in New York were not isolated, casual encounters. 

Delandmeter had a vested interest in Luxalpha’s and Access’s successes given his role as a 

director of Luxalpha, AIA Inc., and several of the other Access entities. These contacts, which 

were essential to the continuance of Access and Luxalpha’s business relationship with BLMIS, 

demonstrate Delandmeter’s purposeful direction of investment activity to New York and subject 

Delandmeter to the Court’s jurisdiction. 

10. The Moving Access Defendants and Delandmeter’s Arguments to the 

Contrary Mischaracterize the Appropriate Legal Standards and 

Misstate the Facts 

In an effort to avoid the Court’s jurisdiction, the Moving Access Defendants and 

Delandmeter argue that they cannot be haled into court in the United States as a result of their 

41 Jurisdiction over Delandmeter is also proper under CPLR § 302(a)(1), because Luxalpha transacted business in 

New York as his agent. Jurisdiction through agency is properly found if the corporate entity “engaged in purposeful 

activities with this State in relation to [the] transaction for the benefit of and with the knowledge and consent of the 

[individual] and…[the individual] exercised some control over [the corporate entity] in the matter.” Kreutter, 522 

N.E.2d at 44; see also In re Sumitomo Copper Litig., 120 F. Supp. 2d at 337. Luxalpha transacted business in New 

York with the knowledge and consent, and for the benefit of Delandmeter, who was undoubtedly well compensated 

for his role as Luxalpha’s director and legal advisor. (See Pergament Decl. Ex. 85 at 3.) Further, Delandmeter 

clearly exercised more than “some control” over Luxalpha—indeed, he was a primary actor with respect to 

Luxalpha and its contacts with BLMIS. See Retail Software, 854 F.2d at 22. 

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receipt of subsequent transfers of BLMIS Customer Property. (Delandmeter Mot. at 17; Access 

Mot. at 19.) But the cases on which the Moving Access Defendants and Delandmeter rely, 

which stand for the proposition that “passive receipt of allegedly stolen funds . . . is an 

inadequate basis for” the exercise of jurisdiction, are inapposite. (See Access Mot. at 19–20.) 

(citing Devinsky v. Kingsford, No. 05 Civ. 2064 (PAC), 2008 WL 857525, at *5 (S.D.N.Y. Mar. 

31, 2008); Langenberg v. Sofair, No. 03 CV 8339 (KMK), 2006 WL 2628348, at *4 (S.D.N.Y. 

Sept. 11, 2006)). 42 The Moving Access Defendants and Delandmeter were not third parties who 

passively received subsequent transfers, but rather purposefully contracted for and earned those 

substantial fees for directing investment activity to BLMIS in New York through Luxalpha and 

Groupement, during the course of which they closed their eyes to numerous “red flags” relating 

to Madoff and BLMIS. (See Am. Compl. 201, 220–51.) The Moving Access Defendants and 

Delandmeter are subject to the Court’s jurisdiction in a case seeking the recovery of such 

transfers, where these transfers arose out of their contacts with New York. Chais, 440 B.R. at 

278 (“. . . foreign defendants who profited by their maintenance of BLMIS accounts and receipt 

of transfers subjected themselves to personal jurisdiction of this Court with regard to the 

Trustee’s claims arising from such transfers.”) (citing Cohmad, 418 B.R. at 75); see also Sole 

Resort, 450 F.3d at 103 (requiring “some articulable nexus between the business transacted and 

the cause of action sued upon” for jurisdiction under CPLR § 302(a)(1)). 

Separately, although the Moving Access Defendants generally recognize the existence of 

the mere department standard for purposes of jurisdiction, they argue that the Trustee can 

42 The Moving Access Defendants and Delandmeter reveal the weakness of their position by selectively quoting 

dicta in Mullins v. TestAmerica, Inc., 564 F.3d 386 (5th Cir. 2009). (Access Mot. at 20; Delandmeter Mot. at 17.) 

Mullins stands for the proposition that the appropriate inquiry in the jurisdictional analysis—even for a transferee— 

is whether the defendant had minimum contacts constituting purposeful availment with the forum state. Mullins, 

564 F.3d at 400. 

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demonstrate only that the entities had common ownership. (Access Mot. at 23-24.) To the 

contrary, and as detailed above, each element of the mere department test is satisfied with regard 

to the relationship between Access’s New York office and each of the Moving Access 

Defendants. The Moving Access Defendants also fail to recognize that the jurisdictional 

contacts of Access’s New York office can be imputed to them on an agency theory. Instead, 

they insist the Trustee must establish that the Moving Access Defendants were alter egos of the 

New York office. (See Access Mot. 21–23.) But the Trustee’s position is that the Moving 

Access Defendants are subject to jurisdiction based upon their direct contacts with the forum, as 

well as their agency and mere department relationships with Access’s New York office. 

11. AML and Delandmeter Are Subject to Jurisdiction for the Additional 

Reason that They Have Filed Suit Against the Trustee in Luxembourg 

This Court has jurisdiction over AML and Delandmeter for the additional reason that 

they filed an action in the District Court of Luxembourg (the “Luxalpha Third Party Writ”) 

against the Trustee as the representative of BLMIS and have sought recovery from the BLMIS 

estate related to Luxalpha’s investments in BLMIS. Bankruptcy courts have exercised 

jurisdiction over foreign defendants solely on the basis that an action they have taken abroad has 

“a substantial, direct and foreseeable effect on the administration of [the bankruptcy] estate that 

11 U.S.C. § 362(a) was designed to prevent.” LaMonica v. North of England Protecting and 

Indem. Assoc. Ltd., (In re Probulk Inc.), 407 B.R. 56, 63–64 (S.D.N.Y. 2009). The filing of a 

foreign action against a debtor or a debtor’s property that is subject to a United States bankruptcy 

proceeding subjects that plaintiff to this Court’s jurisdiction because it affects “the very ability of 

the bankruptcy court to govern such a liquidation and to fairly distribute same and is tampering 

with the exclusive jurisdiction over all such property afforded by 28 U.S.C. § 1334(e).” Id. 

(citations omitted); see also Fox v. Picard (In re Bernard L. Madoff Inv. Secs. LLC), No. 10 Civ. 

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4652 (JGK), 2012 WL 99089, at *7 (S.D.N.Y. Mar. 26, 2012) (acknowledging the importance of 

“prevent[ing] dissipation of the debtor’s assets before orderly distribution to creditors can be 

effected”) (internal quotation omitted). 

In December 2009, Luxalpha’s liquidators filed an action in Luxembourg against, inter 

alia, AML, Delandmeter, Littaye, the Moving UBS Defendants and UBS AG (the “Luxembourg 

Action”) for damage caused to Luxalpha as a result of the fraud perpetrated by Madoff and 

enabled and/or facilitated by each of the named defendants. (Pergament Decl. Ex. 172.) On or 

around May 12, 2010, AML, Delandmeter, and Littaye filed the Luxalpha Third Party Writ 

which named the Trustee, on behalf of the BLMIS estate, as a third party defendant through an 

impleader in the Luxembourg Action. (Pergament Decl. Ex. 173.) The Luxalpha Third Party 

Writ alleges that the BLMIS estate is responsible for any judgment rendered against the Third 

Party Plaintiffs in the Luxembourg Action. 43 (Id. at Conclusion Section.) The Luxalpha Third 

Party Writ is expressly aimed at the BLMIS estate and specifically targets this Court and 

therefore this forum, and unquestionably affects the administration of the estate. Moreover, by 

impleading the Trustee as representative of the BLMIS estate and seeking to recover assets from 

the BLMIS estate, AML, Delandmeter, and Littaye have expressly aimed their conduct at the 

United States and must therefore reasonably anticipate being haled into this Court. See Calder, 

465 U.S. at 789–90. The motions to dismiss on personal jurisdiction grounds filed by AML and 

Delandmeter must be rejected for this additional reason. 

43 The Trustee has filed an action before this Court seeking to enforce the automatic stay and enjoin AML, 

Delandmeter, and Littaye from litigating the Luxalpha Third Party Writ against the Trustee as a representative of the 

BLMIS estate. See Memorandum of Law in Support of Trustee’s Application for Enforcement of Automatic Stay 

and Injunction Against Patrick Littaye, Pierre Delandmeter, and Access Management Luxembourg S.A., Picard v. 

Access Management Luxembourg S.A., No. 12-01563 (BRL) (Bankr. S.D.N.Y. Apr. 19, 2012) [ECF No. 1.] AML, 

Delandmeter, and Littaye have moved to withdraw the reference. [ECF No. 14.] Meanwhile, briefing on the 

Trustee’s motion to enforce the automatic stay and enjoin AML, Delandmeter, and Littaye from proceeding with the 

Third Party Writ will proceed. [ECF No. 13.] 

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IV. ALL MOVING DEFENDANTS WAIVED PERSONAL JURISDICTION 

DEFENSES BY PARTICIPATING IN THE INSTANT AND RELATED 

PROCEEDINGS 

Participatory factors support finding the Moving Defendants’ waiver of any objection to 

personal jurisdiction in this adversary proceeding. See Cohmad, 418 B.R. at 81 (citing In re 

Deak & Co., Inc., 63 B.R. 422, 431 (Bankr. S.D.N.Y. 1986)). In Cohmad, this Court found that 

the defendants “effectively consented to personal jurisdiction by purposefully availing 

themselves of the protections afforded by United States bankruptcy law.” Id. 

The Moving UBS Defendants, Moving Access Defendants, Delandmeter, and Luxalpha 

waived any objection to personal jurisdiction by seeking affirmative relief in the District Court 

by moving to withdraw the reference in June and July 2011. [S.D.N.Y. ECF No. 1, 6, 8.] See 

Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d. Cir. 1999) (defendant forfeited challenge to 

personal jurisdiction where he “joined with other defendants” in seeking transfer of case to 

another district court); Deak, 63 B.R. at 431–32 (defendant waived personal jurisdiction “when 

he filed his notice of appearance”); Herbst Gaming, Inc. v. Insurcorp. (In re Zante, Inc.), No. 10 

cv 00231 (RCJ) (RAM), 2010 WL 5477768, at *7 (D. Nev. Dec. 29, 2010) (noting that 

Defendants submitted to jurisdiction by filing a motion to withdraw the reference and motion for 

summary judgment, “which act constituted a general appearance”). The Moving UBS 

Defendants, Moving Luxalpha Director Defendants, Moving Access Defendants, and 

Delandmeter then sought and received affirmative relief in the District Court to dismiss the 

common law claims for lack of standing. [S.D.N.Y. ECF No. 17, 20, 36.] The District Court’s 

November 1, 2011 decision in favor of each of the Moving Defendants’ interests is now on 

appeal before the Second Circuit, where it has been opposed by counsel for the Moving 

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Defendants and is awaiting oral argument. 44 See Picard v. UBS AG (In re Bernard L. Madoff Inv. 

Sec.), No. 11-5051 (2d Cir.) [2d Cir. ECF No. 98, 99, 100.] 

After having first moved to withdraw the reference to the District Court in June and July 

2011, having moved dispositively before the District Court in August 2011, and/or having 

opposed the Trustee’s appeal in the Second Circuit in April 2012, the Moving Defendants now 

invoke Rule 12(b)(2) to contest this Court’s ability to adjudicate this dispute based on lack of 

personal jurisdiction. It is improper for the Moving Defendants to avail themselves of 

affirmative relief before the District Court and the Second Circuit, and then subsequently argue 

that this Court does not have the power to bind them in this proceeding. See Andros Compania 

Maritima, S.A. v. Intertanker Ltd., 718 F.Supp. 1215, 1217 (S.D.N.Y. 1989) (“It is a fundamental 

tenet of jurisdictional law that a party may waive a challenge to the Court’s in personam 

jurisdiction, . . . and appearing and seeking affirmative relief from the Court is the paradigm of 

such a waiver.”). 

Rule 12(h)(1) of the Federal Rules of Civil Procedure provides that a party waives the 

defense of lack of personal jurisdiction when it fails to raise that defense in either its first Rule 12 

motion or in its responsive pleading. Fed. R. Civ. P. 12(h)(1)(B). “The message conveyed by . . 

. Rule 12(h)(1) seems quite clear. It advises a litigant to exercise great diligence in challenging 

personal jurisdiction . . . If that party wishes to raise [the defense of lack of personal 

jurisdiction], that must be done at the time the first significant defensive move[] is made— 

44 Luxalpha did not file a motion to dismiss the common law claims. However, on August 17, 2011, the Trustee 

filed an Amended Complaint, which included a common law contribution claim against all defendants, including 

Luxalpha. [S.D.N.Y. ECF No. 23.] On September 7, 2011, the District Court entered an order deeming the motions 

to dismiss the common law claims filed by other defendants to be directed to the Amended Complaint. [S.D.N.Y. 

ECF No. 28.] On November 1, 2011, the District Court entered the order granting the motions to dismiss the 

common law claims as to all Defendants. [S.D.N.Y. ECF No. 36 at 33.] Luxalpha then participated in the Second 

Circuit proceedings by filing an Acknowledgement and Notice of Appearance and a brief opposing the Trustee’s 

appeal. [2d Cir. ECF No. 37, 99.]. 

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whether it be by way of a Rule 12 motion or a responsive pleading.” JP Morgan Chase Bank, 

N.A. v. Law Office of Robert Jay Gumenick, P.C., No. 08 Civ. 2154 (VM), 2011 WL 1796298, at 

*2 (S.D.N.Y. Apr. 22, 2011) (quoting 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 5C 

FEDERAL PRACTICE & PROCEDURE § 1391 (3d ed. 2010)). 

While the District Court on July 12, 2011 ordered the Moving UBS Defendants, Moving 

Luxalpha Director Defendants, Moving Access Defendants, and Delandmeter to brief the 

threshold issues of standing and SLUSA preemption [S.D.N.Y. ECF No. 10], this was not an 

invitation to play fast and loose with the rules. They had the opportunity to bring to the District 

Court’s attention their anticipated defense of lack of personal jurisdiction in their letters to the 

Court at that time regarding their forthcoming motions to dismiss—but did not. [See, e.g., 

S.D.N.Y. ECF No. 10.] Instead, they simply asserted that they intended to “preserve” the 

defense in their August 1, 2011 moving papers in support of their motion to dismiss for lack of 

standing and SLUSA preemption. (See [S.D.N.Y. ECF No. 18] at 1 n.1; [S.D.N.Y. ECF No. 20] 

at 4.) The District Court’s briefing order did not exempt them from compliance with Rule 

12(h)(1). Rather, it merely relieved them from briefing anything other than their standing and 

SLUSA arguments at that juncture. They could have, and should have, identified all of their 

Rule 12(b) objections in their motion before the District Court, even if briefing on some of those 

objections was temporarily held in abeyance. 

The Moving UBS Defendants, Moving Luxalpha Director Defendants, Moving Access 

Defendants, and Delandmeter’s attempt to “preserve” the defense of lack of personal jurisdiction 

by simply announcing their intent to contest the Court’s jurisdiction at a later point in time is 

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inadequate. 45 (See [S.D.N.Y. ECF No. 18 at 1 n.1]; [S.D.N.Y. ECF No. 20 at 4.]) This approach 

is procedurally improper and has been rejected in the Southern District of New York. See, e.g., 

Bryant Park Capital v. Jelco Ventures, No. 05 Civ. 8702 (GEL), 2005 WL 3466013, at *1 

(S.D.N.Y. Dec. 16, 2005) (“Defendants are mistaken in contending that they ‘do not waive’ any 

of the listed objections [by “assert[ing], in passing, that . . . they ‘do not waive’ any future 

objection” to personal jurisdiction]; the failure to properly raise a Rule 12(b)(2) motion for lack 

of personal jurisdiction at this juncture is preclusive.”). The Court should find that the Moving 

Defendants have waived their opportunity to challenge personal jurisdiction. 

V. ALL MOVING DEFENDANTS FAIL TO SHOW THAT THE EXERCISE OF 

PERSONAL JURISDICTION WOULD BE UNREASONABLE 

In addition to “minimum contacts,” which are met here for each Moving Defendant, due 

process considerations also require that the exercise of jurisdiction be “reasonable.” Int’l Shoe 

Co., 326 U.S. at 317; see also Maxam, 460 B.R. at 117. The Supreme Court has identified five 

factors in determining the “reasonableness” of the exercise of personal jurisdiction: (1) “the 

burden on the defendant;” (2) “the forum State’s interest in adjudicating the dispute;” (3) “the 

plaintiff’s interest in obtaining convenient and effective relief;”(4) “the interstate judicial 

system’s interest in obtaining the most efficient resolution of controversies;” and (5) “the shared 

interest of the several States in furthering fundamental substantive social policies.” Burger King, 

471 U.S. at 476–77 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 

(1980)). 

Once the Trustee has made a prima facie showing that defendants have the requisite 

minimum contacts, the exercise of jurisdiction may be defeated only “where the defendant 

45 Notably, Luxalpha failed to even purport to preserve any jurisdictional defenses until filing an April 15, 2012 

brief in the Second Circuit opposing the Trustee’s appeal of the District Court’s November 1, 2011 decision [2d Cir. 

ECF No. 99.] 

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presents ‘a compelling case that the presence of some other considerations would render 

jurisdiction unreasonable.’” Chloe, Inc., 616 F.3d at 165 (quoting Burger King, 471 U.S. at 

477); see also Cohmad, 418 B.R. at 81. The reasonableness inquiry focuses on whether “[the 

court’s] exercise of jurisdiction will not offend ‘traditional notions of fair play and substantial 

justice.’” Chais, 440 at 278 (quoting Asahi Metal Indus. Co., Ltd. v. Super. Ct. Cal., 480 U.S. 

102, 113 (1987)). 

This Court has previously held that the application of the reasonableness factors favors 

the exercise of jurisdiction over foreign defendants in connection with the Trustee’s efforts to 

recover BLMIS-related transfers. See Chais, 440 B.R. at 281–282 (“On the basis of 

[defendant’s] purposeful and profitable financial transactions in the United States, this Court 

certainly has jurisdiction to determine whether such transactions contributed to the massive 

losses suffered by victims of the BLMIS Ponzi scheme in the United States.” (internal citation 

omitted)). In so holding, this Court has determined that the significant interests implicated by 

the Trustee’s actions will justify even serious burdens placed on a foreign defendant. Cohmad, 

418 B.R. at 81; Chais, 440 B.R. at 281; Maxam, 460 B.R. at 119–20; see also Apollo Techs. 

Corp. v. Centrosphere Indus. Corp., 805 F. Supp. 1157, 1187 (D.N.J. 1992) (“Jurisdiction cannot 

be defeated simply because the non-resident defendant is a foreign entity.) In any case, there is 

no serious burden “where [the defendant’s] counsel is in New York and there is a U.S. nexus to 

its economic activities, and given that ‘the conveniences of modern communication and 

transportation’ also militate against finding hardship based on lack of proximity.” Maxam, 460 

B.R. at 119 (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 

129 (2d Cir. 2002)). 

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The Second Circuit has found the exercise of personal jurisdiction to be reasonable when 

a defendant causes consequences in the forum state. SEC v. Unifund SAL, 910 F.2d 1028, 1033 

(2d Cir. 1990); see also SEC v. Gonzalez de Castilla, No. 01 Civ. 3999, 2001 WL 940560, at *4 

(S.D.N.Y. Aug. 20, 2001); Chais, 440 B.R. at 281. By funneling money into and withdrawing 

money from BLMIS, playing supporting roles in facilitating the investments with BLMIS, and 

benefitting from the relationship with BLMIS by collecting enormous fees, each of the Moving 

Defendants are inextricably linked to Madoff’s scheme and the losses suffered by thousands of 

investors in the United States. 

Because the liquidation of BLMIS concerns a failed, federally regulated New York 

broker-dealer and is proceeding in New York, both New York and the United States have a 

strong interest in exercising personal jurisdiction over the Moving Defendants. The Trustee is 

overseeing hundreds of lawsuits before this Court. His actions involve billions of dollars in 

claims similar to, and related to, the claims brought here against the Moving Defendants. This 

Court has already held that “the most efficient resolution of the controversy would be in the 

United States, where the inextricably-related BLMIS litigation is ongoing.” Maxam, 460 B.R. at 

119; also Nordberg v. Granfinanciera, S.A. (In re Chase & Sanborn Corp.), 835 F.2d 1341, 1347 

(11th Cir. 1988) (finding personal jurisdiction reasonable where the bankruptcy trustee already 

had several other related actions pending in the forum), rev’d on other grounds, 492 U.S. 33 

(1989). In light of the multitude of “inextricably-related” proceedings arising from Madoff’s 

Ponzi scheme, the Court’s interests in maintaining a cohesive litigation structure far outweigh the 

minimal inconvenience imposed on the Moving Defendants by being forced to litigate here. 

Finally, the United States has a significant interest in adjudicating claims that arise under 

the United States Bankruptcy Code. Maxam, 460 B.R. at 119 (“[T]he United States has a strong 

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interest in applying the fraudulent transfer and preference provisions of its Bankruptcy Code 

since the Trustee’s claims arise under it, and Defendants’ transfers have allegedly deprived 

United States’ creditors of distributions to which they are entitled in the BLMIS liquidation.” 

(citing U.S. Lines, Inc. v. GAC Marine Fuels Ltd. (In re McLean Indus. Inc.), 68 B.R. 690, 699 

(Bankr. S.D.N.Y. 1986))); Cohmad, 418 B.R. at 81–82. Here, the Trustee’s surviving claims 

arise under the Bankruptcy Code, thereby bolstering this Court’s interest in retaining jurisdiction 

over the Moving Defendants. Balancing all relevant interests, the exercise of personal 

jurisdiction over the Moving UBS Defendants and the Moving Luxalpha Director Defendants 

comports with the “reasonableness” embodied in “traditional notions of fair play and substantial 

justice.” See Chais, 440 at 278 (quoting Asahi, 480 U.S. at 113). 

The Moving Defendants’ conclusory arguments and “evidence” fall far short of the 

“direct, highly specific, testimonial evidence” necessary to rebut the Trustee’s allegations 

establishing the reasonableness of jurisdiction. See Schenker, 2002 WL 1560788, at *3. 

Furthermore, the allegations set forth in the Amended Complaint —as bolstered by the specific 

evidence presented in this consolidated opposition and accompanying declaration—demonstrate 

that each of the Moving Defendants maintained minimum contacts with the forum that subject 

them to jurisdiction, notwithstanding their generalized declarations to the contrary. The Moving 

Defendants are unable to show that the balance of interests would weigh against the exercise of 

personal jurisdiction by this Court. 

VI. JURISDICTIONAL DISCOVERY SHOULD BE PERMITTED IN THE 

ALTERNATIVE 

In the event that this Court does not find that the Trustee has successfully alleged 

personal jurisdiction over any of the Moving Defendants, discovery should be permitted on this 

limited issue. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (noting that “a court should 

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take care to give the plaintiff ample opportunity to secure and present evidence relevant to the 

existence of jurisdiction” (internal quotations omitted)). Courts, including this Court, have 

permitted jurisdictional discovery where a plaintiff has made a “sufficient start” towards a prima 

facie case, a standard that is more than met here. See Uebler v. Boss Media, AB, 363 F. Supp. 2d 

499, 506 (E.D.N.Y. 2005); Stratagem Dev. Corp. v. Heron Int’l N.V., 153 F.R.D. 535, 547–48 

(S.D.N.Y. 1994); Texas Int’l Magnetics, Inc. v. BASF Aktiengesellschaft, 31 Fed. App’x 738, 

739–40 (2d Cir. 2002) (permitting jurisdictional discovery to develop factual record on personal 

jurisdiction issue); Picard v. Magnify Inc. (In re Bernard L. Madoff Inv. Secs. LLC), 10-05279 

(BRL), 2012 WL 2254995, at *7-9 (Bankr. S.D.N.Y. June 15, 2012) (permitting jurisdictional 

discovery to determine relevant jurisdictional facts surrounding moving defendant). 

The Trustee has made far more than “a threshold showing that there is some basis for the 

assertion of jurisdiction, facts that would support a colorable claim of jurisdiction.” See Ayyash 

v. Bank Al-Madina, No. 04 Civ. 9201 (GEL), 2006 WL 587342, at *5 (S.D.N.Y. Mar. 9, 2006) 

(internal quotations omitted). The Trustee has met this burden despite key documents bearing on 

this Court’s jurisdiction residing within the Moving Defendants’ exclusive possession. See 

Winston & Strawn v. Dong Won Sec. Co., No. 02 Civ. 0183 (RWS), 2002 WL 31444625, at *5 

(S.D.N.Y. Nov. 1, 2002) (permitting discovery “where the facts necessary to establish personal 

jurisdiction . . . lie exclusively within the defendant’s knowledge.” (citing Wells Fargo & Co.v. 

Wells Fargo Express Co., 556 F.2d 406, 430 n.4 (2d Cir. 1977)); Uebler, 363 F. Supp. 2d at 506 

(“To permit discovery in this case is bolstered by the fact that the facts necessary to establish 

personal jurisdiction lie within [defendant]’s exclusive knowledge.). Further, where 

jurisdictional theories are fact intensive, such as those alleged here, jurisdictional discovery is 

warranted. See Winston & Strawn, 2002 WL 31444625, at *5 (ordering jurisdictional discovery 

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to “gauge the extent of [parent’s] control over [subsidiary] and whether such control would 

provide a basis for jurisdiction . . . .”); see also Amsellem v. Host Marriot Corp., 280 A.D.2d 

357, 359 (N.Y. App. Div. 2001) (finding jurisdictional discovery appropriate “especially since 

the corporate relationships are complex and the relevant facts are exclusively within the control 

of the party seeking dismissal” (internal citation omitted)). 

A. Jurisdictional Discovery Is Warranted to Fully Reveal the Nature of the 

Moving UBS Defendants’ Contacts with This Forum 

Jurisdictional discovery would permit the Trustee to fully develop the facts and confirm 

his understandings regarding each of the Moving UBS Defendants’ contacts with the forum. 

This is especially the case because relevant documents have been withheld by the Moving UBS 

Defendants who, along with UBS AG, produced only minimal documents (many of which were 

so heavily redacted that that they were of no value) after months of delay and stalling in response 

to the Trustee’s Rule 2004 subpoena. 46 

First, UBSFSL has declared that its employees “did not regularly contact any employee 

of BLMIS, or any agent acting on behalf of Mr. Madoff or BLMIS.” (Boulat Decl. 15 [Bankr. 

S.D.N.Y. ECF No. 111.]) However, the Trustee’s review of BLMIS’s files and phone records 

indicates that UBSFSL employees did communicate with BLMIS in New York. Likewise, 

documents received from Access (but that were not included in UBS’s limited document 

production) show UBSFSL communicated and worked with Access employees in New York. 

46 The Trustee served six Rule 2004 document subpoenas on UBS AG and UBS SA in 2009, which contained a total 

of 122 distinct requests for documents. In an effort to obtain relevant documents located abroad without burdening 

the Court with motion practice, the Trustee’s counsel then attempted to meaningfully meet and confer with UBS on 

these document requests. Although some documents were received by the Trustee in 2009 and early 2010, it was 

not until September 2010 (after the Trustee provided UBS with a draft motion to compel) that UBS began to 

meaningfully comply with its document production obligations. Subsequent productions were made on November 

10, 2010 and November 15, 2010, over 18 months after the Trustee first served a Rule 2004 subpoena on UBS and a 

mere eight days before the Trustee filed his initial complaint on November 23, 2010, at which point the Trustee 

could no longer seek documents under Rule 2004. In addition, many of the documents produced by UBS are 

heavily redacted and of questionable relevance, and it is clear that UBS’s production is not complete and that 

numerous relevant documents have been withheld from the Trustee. 

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The Trustee is entitled to additional documents from UBS to explore the full nature of the 

relationship between UBSFSL and BLMIS and Access’s New York office, and the services 

provided and fees received with respect to Luxalpha and Groupement. 

Second, jurisdictional discovery would also allow the Trustee to confirm his 

understanding of UBSTPM’s organizational structure, personnel, duties and fees received with 

respect to Luxalpha. 

Third, jurisdictional discovery would enable the Trustee to confirm his assertions 

regarding UBS SA’s numerous contacts with the United States. UBS SA’s documents and 

correspondence about Luxalpha, Groupement, BLMIS, and Access, and the fees received by 

UBS SA, would further reveal that UBS SA has minimum contacts with the United States 

relating to the claims asserted. 

B. Jurisdictional Discovery Is Warranted to Explore the Contacts that the 

Moving Luxalpha Director Defendants Have with This Forum 

The Moving Luxalpha Director Defendants assert they “had no direct involvement in the 

day-to-day management and operations of Luxalpha” and “that the directors never received any 

compensation for their service to Luxalpha.” (UBS Mot. at 22, 23.) However, documents 

produced to the Trustee by UBS demonstrate that the Moving Luxalpha Director Defendants 

authorized the establishment of Luxalpha and its exclusive business relationship with and 

delegation of authority to BLMIS, approved Luxalpha’s prospectuses and financial statements, 

outwardly supervised the investment restrictions applied to BLMIS, and managed the post- 

collapse operations of Luxalpha, among other activities. Jurisdictional discovery from the 

Moving Luxalpha Director Defendants (including their depositions), and from the Moving UBS 

Defendants and UBS AG as concerning the Moving Luxalpha Director Defendants, would help 

the Trustee establish each director’s responsibilities and actions with respect to Luxalpha, and 

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the compensation and benefits that the directors undoubtedly received while they served on 

Luxalpha’s board. 47 See, e.g., Briese Lichttechnik Vertriebs GmbH v. Langton, No. 09 Civ. 9790 

(LTS) (MHD), 2010 WL 4615958, at *3 (S.D.N.Y. Nov. 9, 2010) (jurisdictional discovery 

revealed that individual who was director of corporation was “primary actor” in corporation’s 

New York activities); Time Inc. v. Simpson, No. 02CIV4917, 2002 WL 31844914, at *4 

(S.D.N.Y. Dec. 18, 2002) (jurisdictional discovery appropriate to discern whether corporation 

conducted business in New York while acting as corporate officer’s agent). 

C. Jurisdictional Discovery Is Warranted to Explore the Interconnected 

Contacts Between the Moving Access Defendants, the Other Access Entities, 

and This Forum 

Although the Trustee has received documents from the New York affiliates of the 

Moving Access Defendants during the Rule 2004 process, targeted jurisdictional discovery 

would permit the Trustee to develop facts relating to the Moving Access Defendants’ 

relationship with Access’s New York office, including the degree to which the New York office 

controlled the Moving Access Defendants’ relationships with Luxalpha, Groupement and 

BLMIS. Jurisdictional discovery, including through narrowly focused document requests and 

interrogatories, would allow the Trustee to confirm whether the Moving Access Defendants: (1) 

were ultimately owned at all relevant times by Littaye and Villehuchet; (2) were financially 

dependent on Access’s New York office; (3) had no employees or actual physical office space; 

and (4) relied on employees in Access’s New York office to perform duties to Luxalpha and 

Groupement. Jurisdictional discovery would also enable the Trustee to learn the details about 

47 Trustee has received very few emails involving the Moving Luxalpha Director Defendants. In addition to such 

emails and other relevant documents, depositions of the Moving Luxalpha Director Defendants are warranted in 

order to explore contacts with the forum not memorialized to writing—including as concerning the decisions to 

establish Luxalpha and delegate custodial and asset management authority to BLMIS, the approval of prospectuses 

and financial statements that omitted reference to Madoff, and interactions with Access’s New York office and its 

principals Littaye and Villehuchet relating to Luxalpha, BLMIS, and Madoff. 

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the transfers of BLMIS Customer Property that the Moving Access Defendants received from 

Luxalpha and Groupement (either directly or through intermediaries such as the Moving UBS 

Defendants), out of which the Trustee’s subsequent transfer causes of action arise, and which 

form the basis for jurisdiction over them. 

D. Jurisdictional Discovery Is Warranted to Confirm the Numerous Contacts 

That Delandmeter Had with This Forum 

Jurisdictional discovery would also permit the Trustee to confirm Delandmeter’s 

relationship with Access’s New York office, the actions Delandmeter took on behalf of Luxalpha 

directed at New York, and his contacts with BLMIS and Madoff himself. Although Delandmeter 

asserts that “by operation of Luxembourg law, as an attorney, [he] could not engage in the day- 

to-day operations of an enterprise,” (Delandmeter Mot. at 15,) it is clear that he played an active 

role in the business operations of Access and its facilitation of investment activity to New York, 

as well as the operation and management of Luxalpha. Jurisdictional discovery, including a 

deposition, could help the Trustee further understand the facts surrounding (1) Delandmeter’s 

travels to New York on BLMIS-related business; (2) contacts with Madoff himself; (3) 

involvement with Access’s business and marketing activities; (4) responsibilities and actions 

taken relating to his service on Luxalpha’s board; and (5) compensation he received from 

Luxalpha and Access. See, e.g., Langton, 2010 WL 4615958, at *3; Time, Inc., 2002 WL 

31844914, at *4. 48 

48 If the Court is not convinced that the Trustee has established a prima facie showing of jurisdiction over Luxalpha, 

the Trustee requests jurisdictional discovery, including with respect to: (1) the customer claims submitted by 

Luxalpha, (2) Luxalpha’s account at BLMIS in New York, and (3) Luxalpha’s substantial transfers of funds to and 

from BLMIS in New York. 

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VII. THE COURT SHOULD NOT DISMISS THIS ADVERSARY PROCEEDING FOR 

FORUM NON CONVENIENS 

Ignoring the numerous connections that this adversary proceeding and the SIPA 

liquidation have to the United States, Luxalpha moves to dismiss the entire case against all 

Defendants on the grounds that Luxembourg would be a more convenient forum for this 

litigation. Notably, no other Defendant joins in this argument or consents to jurisdiction in 

Luxembourg. See Concesionaria DHM, S.A. v. Int’l Fin. Corp., 307 F. Supp. 2d 553, 563 

(S.D.N.Y. 2004) (explaining that “to grant motion to dismiss for forum non conveniens, court 

must find ‘that the litigation may be conducted elsewhere against all defendants.’”) (emphasis 

added) (quoting PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998)). 

Luxalpha’s argument is untenable. 

“Forum non conveniens is a discretionary device permitting a court in rare instances to 

dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim.” 

Wiwa, 226 F.3d at 100 (internal quotation omitted) (emphasis added). “[I]t is generally 

understood that, ‘unless the balance is strongly in favor of the defendant, the plaintiff’s choice of 

forum should rarely be disturbed.’” Norex Petrol. Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 

(2d Cir. 2005) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). 

The Second Circuit has outlined a three-step analysis for a district court to employ when 

considering whether to dismiss an action on the grounds of forum non conveniens. Id. at 153 

(citing Iragorri v. United Tech. Corp., 274 F.3d 65, 73 (2d Cir. 2001)). First, “a court 

determines the degree of deference properly accorded the plaintiff’s choice of forum.” Id. 

(internal citation omitted). Second, a court must determine “whether the alternative forum 

proposed by the defendants is adequate to adjudicate the parties’ dispute.” Id. (internal citation 

omitted). Third, “a court balances the private and public interests implicated in the choice of 

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forum.” Id. (internal citation omitted). “The defendant bears the burden of proof on all elements 

of the motion.” Levey v. Hamilton (In re Teknek, LLC), 354 B.R. 181, 206 (Bankr. N.D. Ill. 

2006) (quoting Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 

F.3d 241, 246 (2d Cir. 2001)). 

Luxembourg. 

Each of these factors weighs strongly against litigating this adversary proceeding in 

A. The Trustee’s Choice of a United States Forum Deserves Significant 

Deference 

“Any review of a forum non conveniens motion starts with ‘a strong presumption in favor 

of the plaintiff’s choice of forum.’” Norex, 416 F.3d at 154 (quoting Piper Aircraft Co. v. 

Reyno, 454 U.S. 235, 255 (1981)). Although “the degree of deference given to a plaintiff’s 

forum choice varies with the circumstances,” that forum choice “is generally entitled to great 

deference when the plaintiff has sued in the plaintiff’s home forum.” Iragorri, 274 F.3d at 71 

(internal citations omitted); see also Eclaire Advisor Ltd. as Trustee to Daewoo Int’l (America) 

Corp. Creditor Trust v. Daewoo Eng’g & Constr., 375 F. Supp. 2d 257, 265 (S.D.N.Y. 2005) 

(“In a case involving international parties, plaintiff’s choice of forum is generally given great 

deference when plaintiff has brought suit in its home country.”). The relevant forum, moreover, 

is the United States as a whole and not any particular state. Constellation Energy Commodities 

Grp. Inc. v. Transfield ER Cape Ltd., 801 F. Supp. 2d 211, 218–19 (S.D.N.Y. 2011) (“When an 

American citizen residing in the United States sues foreign defendants, the entire United States— 

rather than the particular state in which the plaintiff resides—is considered the home forum for 

the purposes of a forum non conveniens analysis.” (citing Guidi v. Inter–Cont’l Hotels Corp., 

224 F.3d 142, 146 n.4 (2d Cir. 2000) (additional citations omitted)). 

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When determining the appropriate level of deference to accord the choice of a U.S. 

forum, courts should consider whether the forum was chosen for bona fide reasons of 

convenience or for forum-shopping reasons. Norex at 154–55 (quoting Iragorri, 274 F.3d at 71– 

72). The Second Circuit has provided the following factors to help courts determine the 

motivations behind a forum choice: 

[1] the convenience of the plaintiff’s residence in relation to the chosen forum, [2] 

the availability of witnesses or evidence to the forum district, [3] the defendant’s 

amenability to suit in the forum district, [4] the availability of appropriate legal 

assistance, and [5] other reasons relating to convenience or expense. 

Circumstances generally indicative of forum shopping, that is, plaintiff’s pursuit 

not simply of justice but of justice blended with some harassment, include [1] 

attempts to win a tactical advantage resulting from local laws that favor the 

plaintiff’s case, [2] the habitual generosity of juries in the United States or in the 

forum district, [3] the plaintiff’s popularity or the defendant’s unpopularity in the 

region, or [4] the inconvenience and expense to the defendant resulting from 

litigation in that forum. 

Id. at 155 (internal quotations omitted). 

Under these factors, the Trustee’s choice to litigate in the United States deserves the 

highest degree of deference. The Trustee is based in New York. All evidence of BLMIS’s 

insolvency is in New York. The SIPA liquidation and claims administration process are pending 

before this Court in New York. With the assistance of his U.S.-based counsel, consultants, and 

experts, the Trustee has initiated and is actively litigating hundreds of related adversary 

proceedings in New York. Any recovery from this proceeding—or from any other of the 

Trustee’s numerous adversary proceedings—constitutes Customer Property that must be 

redistributed through the claims administration process pending before this Court. These 

connections confirm that the Trustee initiated this adversary proceeding in the United States— 

and not in Luxembourg—for legitimate reasons. 

Luxalpha offers no authority in support of its proposition that a U.S. plaintiff’s choice of 

his home forum deserves less deference when some of the defendants are foreign. See Luxalpha 

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Mot. at 15–16. Indeed, courts in the Second Circuit frequently accord substantial deference to 

U.S. plaintiffs suing foreign defendants. See, e.g., Pandeosingh v. Am. Med. Response, Inc., No. 

09-CV-5143, 2012 WL 511815, at *2 (E.D.N.Y. Feb. 15, 2012); Nelly de Vuyst, USA, Inc. v. 

Europe Cosmetiques, Inc., No. 11 CV 1491, 2012 WL 246673, at *3 (S.D.N.Y. Jan. 6, 2012); 

Airflow Catalyst Sys., Inc. v. Huss Techs. GmbH, No. 11-CV-6012, 2011 WL 5326535, at *4–5 

(W.D.N.Y. Nov. 3, 2011); Schmerzler v. Intercont’l Hotels Grp. Res., Inc., No. 3:11-cv-120, 

2011 WL 3652174, at *3 (D. Conn. Aug. 18, 2011); Constellation Energy, 801 F. Supp. 2d 218– 

19. Accordingly, the Trustee’s forum choice deserves the utmost deference, and Luxalpha can 

obtain dismissal only if it shows that the remaining factors weigh heavily in its favor. See 

Iragorri, 274 F.3d at 74 (“[T]he greater the degree of deference to which the plaintiff’s choice of 

forum is entitled, the stronger a showing of inconvenience the defendant must make to prevail in 

securing forum non conveniens dismissal.”). As described below, Luxalpha cannot meet that 

burden. 

B. Luxalpha Has Not Met Its Burden to Show that Luxembourg Is an Adequate 

Alternative Forum 

“An alternative forum is adequate if the defendants are amenable to service of process 

there, and if it permits litigation of the subject matter of the dispute.” Norex, 416 F.3d at 157 

(quoting Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir. 2003)). 

Luxalpha’s burden is to show that Luxembourg is a presently available adequate alternative 

forum for litigation of the Trustee’s bankruptcy causes of action. See Astropower Liquidating 

Trust v. Xantrax Tech., Inc. (In re AstroPower Liquidating Trust), 335 B.R. 309, 329 (Bankr. D. 

Del. 2005) (“[I]t was incumbent upon [the defendants] to explain why the courts of [the 

alternative forum] are an adequate alternate forum to adjudicate disputes involving core 

bankruptcy matters. The Court cannot simply assume that this is so.”). 

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Luxalpha has not met its burden of establishing that a court in Luxembourg could hear 

and resolve the subject matter of this litigation, which is the recovery of initial transfers to 

Luxalpha and Groupement and subsequent transfers to other Defendants. If Luxembourg law 

applies, as Luxalpha contends is a possibility in its brief and supporting affidavit (see Luxalpha 

Mot. at 17,) Luxalpha has not addressed which of the various Luxembourg statutes it cites would 

apply to this case. Critically, Luxalpha has failed to address the fact that there is no Luxembourg 

clawback statute that allows a trustee to recover from subsequent transferees. (See Declaration 

of Franz Schiltz, dated July 25, 2012 (the “Schiltz Decl.”) at 7–8.) Luxalpha, therefore, has 

not met its burden in demonstrating that the subject matter of this adversary proceeding—the 

movement of money from BLMIS to Luxalpha and Groupement as initial transferees and to the 

other Defendants as subsequent transferees prior to BLMIS’s liquidation—is capable of litigation 

under Luxembourg law. 49 

If U.S. law were to apply to this matter in Luxembourg, it is unclear at best whether this 

case could be litigated in Luxembourg. As a threshold matter, Luxembourg courts consider 

foreign law to be an issue of fact that must be litigated by the parties and determined by a panel 

of judges. (Schiltz Decl. 9.) This process involves each party offering what it believes is the 

relevant, controlling law for the case and can take one to two years depending on the complexity 

of the matter. (Id.) Given the evolving nature of bankruptcy law in the Second Circuit and the 

New York courts as it applies to avoidance actions, it is an insurmountable task at this stage for 

Luxalpha to meet its burden to demonstrate whether Luxembourg courts could properly 

determine U.S. bankruptcy law in order to “permit litigation of the subject matter of this 

49 It is immaterial that Luxalpha is an initial and not a subsequent transferee, as the entire case, including the 

subsequent transferee causes of action, would be dismissed under forum non conveniens. Luxalpha must meet the 

standard as to all causes of action against all defendants. See Concesionaria, 307 F. Supp. 2d at 563. 

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dispute.” Regardless of which nation’s law would apply, Luxalpha has not met its burden of 

demonstrating that Luxembourg is an adequate alternative forum. Its motion to dismiss for 

forum non conveniens thus fails, irrespective of the remaining factors. See Beana v. Woori Bank, 

No. 05 Civ. 7018, 2006 WL 2935752, at *5 (S.D.N.Y. Oct. 11, 2006) (“While all factors are 

important in the analysis, the requirement of an alternative forum is dispositive.” (citing Norex, 

416 F.3d at 157)). 

C. Luxalpha Has Not Met Its Burden to Show that the Private and Public 

Interest Factors Weigh Heavily in Favor of Dismissal 

Courts in the Second Circuit consider five private interest factors: “(1) ease of access to 

evidence; (2) the availability of compulsory process for the attendance of unwilling witnesses; 

(3) the cost of willing witnesses’ attendance; (4) if relevant, the possibility of a view of premises; 

and (5) all other factors that might make the trial quicker or less expensive.” DiRienzo v. Philip 

Servs. Corp., 294 F.3d 21, 29–30 (2d Cir. 2002) (internal citations omitted). Courts also 

consider four public interest factors: “(1) administrative difficulties associated with court 

congestion; (2) the unfairness of imposing jury duty on a community with no relation to the 

litigation; 50 (3) the local interest in having localized controversies decided at home; and (4) 

avoiding difficult problems in conflict of laws and the application of foreign law.” Id. at 31 

(internal citations and quotations omitted). “[T]he defendant bears the burden to establish clearly 

each factor . . . and to demonstrate that the balance tilts strongly in favor of the purported 

alternative forum.” Beana, 2006 WL 2935752, at *5 (quoting PT United Can Co., Ltd., 138 F.3d 

at 74. “District courts should . . . arm themselves with an appropriate degree of skepticism in 

50 While the Trustee demanded a jury in his Amended Complaint and it is an open question as to whether a jury 

might hear this matter, in Luxembourg there are no juries. (See Schiltz Decl. 17.) Instead, the case would be 

heard by a three-judge panel. Id. 

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assessing whether the defendant has demonstrated genuine inconvenience and a clear 

preferability of the foreign forum.” Iragorri, 274 F.3d at 75. 

1. Luxalpha Has Not Shown that the Private Interest Factors Favor 

Litigation in Luxembourg 

The sine qua non of Luxalpha’s argument with respect to the private interest factors is the 

assertion that “[t]he majority of the witnesses are likely located in Europe.” (Luxalpha Mot. at 

21 (emphasis added).) Having failed to identify even one of these potential witnesses, Luxalpha 

has not met its burden to show that the private interest factors favor litigation of the Trustee’s 

claims in Luxembourg. See Nelly de Vuyst, 2012 WL 246673, at *3 (“Defendants do not cite to 

any factual evidence in support of their arguments. They do not name any witnesses who would 

be inconvenienced by travel to New York or documents which would have to be transported to 

the courthouse”); Haywin Textile Prods., Inc. v. Int’l Fin. Inv. & Commerce Bank, Ltd., 137 F. 

Supp. 2d 431, 436 (S.D.N.Y. 2001) (“[Defendant] has failed to identify with specificity the 

witnesses who will be necessary to litigate this action but whose presence in a New York court 

will be difficult to secure. Such identification is generally required for a forum non conveniens 

dismissal.” (internal citation omitted)). Luxalpha, moreover, could not meet its burden even if it 

did identify specific witnesses located in Luxembourg. See Zim Integrated Shipping Servs., Ltd. 

v. Belco Res., Inc., No. 07 Civ. 5861, 2008 WL 1959041, at *4 (S.D.N.Y. May 2, 2008) (holding 

that dismissal is not warranted if “[w]herever the trial takes place, witnesses will be forced to 

travel to provide testimony” (internal quotations omitted)); see also Eclaire, 375 F. Supp. 2d at 

265 (“In this day and age of rapid transportation and instant communications, the convenience of 

immediate physical proximity to documents, testimony, and other proof has become of less 

consequence to a forum non conveniens analysis, especially when, as here, two large and 

sophisticated parties are involved.”); Calavo Growers of Cal. v. Generali Belgium, 632 F.2d 963, 

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969 (2d Cir. 1980) (Newman, J., concurring) (“It will often be quicker and less expensive to 

transfer a witness or a document than to transfer a lawsuit.”). As set forth below, the private 

interest factors weigh heavily against litigation in Luxembourg. 

a. Litigation in the United States Will Involve Greater Access to 

Evidence and Lower Costs 

(1) Witnesses 

The relevant evidence relates to the circumstances surrounding any transfers made from 

BLMIS to the Defendants in the six years prior to December 11, 2008. The key witnesses in the 

case will be, generally, the Trustee’s expert witnesses and the Defendants. The Trustee 

anticipates that most if not all of its experts will be located in New York and the United States , 

and it obviously will be less burdensome and costly for them to testify in New York. If this 

action were in Luxembourg, however, the court would not allow depositions or cross 

examination of these experts or any other witnesses. (Schiltz Decl. 12.) Rather, the judge(s) 

would conduct interrogations, posing direct questions to the witnesses. (Id.) 

As for the Defendants’ testimony, Luxembourg law prohibits defendants from testifying 

under any circumstances. (Id. 11.) Consequently, if the litigation proceeded in Luxembourg, 

the Trustee would be unable to obtain testimony from any individual Defendant or from any 

director, officer, or employee acting on behalf of Defendant entities. (Id.) This Court, however, 

has the power to compel testimony from the defendants and/or individuals within the 

Defendants’ control. See, e.g., Doe v. Hyland Therapeutics Div., 807 F. Supp. 1117, 1125 

(S.D.N.Y. 1992) (“[M]uch of the evidence, in the form of documents and witnesses . . . is apt to 

be within defendants’ control, rather than that of third parties. Such evidence consequently will 

be subject to the compulsory process of whatever court hears this controversy.” (internal citation 

omitted)). Further, it would not be unduly burdensome for the defendants—who willingly 

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maintained significant contacts with the United States when they were investing in Madoff’s 

fraud—to travel or send representatives to New York for this litigation. See Cromer, 158 F. 

Supp. 2d at 360 (S.D.N.Y. 2001) (citing Calavo Growers of California, 632 F.2d at 969 (“A 

forum is not necessarily inconvenient because of its distance from pertinent parties or places if it 

is readily accessible in a few hours of air travel.) (Newman, J., concurring)). 

With respect to any unwilling non-party witnesses, U.S. courts may compel testimony 

from any individual or entity within the United States, as well as from any U.S. national or 

resident located abroad. See Fed. R. Civ. P. 45(b); Fed. R. Bankr. P. 9016. Furthermore, this 

court can compel the testimony of foreign non-party witnesses through the use of letters 

rogatory. Ingram Micro, Inc. v. Airoute Cargo Express, Inc., No. 99 Civ. 12480, 2001 WL 

282696, at *4 (S.D.N.Y. Mar. 22, 2001). Thus, while Luxalpha trumpets the ability of 

Luxembourg courts to compel testimony, (see Luxalpha Mot. at 21,) this argument is inapposite 

because such testimony is similarly accessible in U.S. proceedings. In any case, although 

Luxembourg courts have the nominal authority to require unwilling non-party witnesses to 

testify, there is no practical mechanism for exercising that authority. (See Schiltz Decl. 13.) 

The factors relating to the cost of willing witnesses’ attendance and the availability of 

compulsory process for unwilling witnesses, therefore, weigh against dismissal. 

(2) Documents 

BLMIS’s internal records of the transfers at issue are located in New York. 51 See In re 

Teknek, LLC, 354 B.R. at 209 (considering, in a forum non conveniens analysis, the location of a 

51 BLMIS’s records include over 11,700 boxes of paper documents and 19,000 media sources containing 

electronically stored information, including various computer systems and storage media. As part of the many 

adversary proceedings pending before this Court, the Trustee has created a virtual data room containing over four 

million documents necessary to prove that BLMIS was a fraudulent enterprise and that BLMIS was insolvent. 

These documents include millions of pages of BLMIS customer account records, correspondence, trading records, 

and records of internal BLMIS communications and procedures relating to BLMIS’s investment advisory business. 

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“debtor’s computer data, business documents, customers’ correspondence, and bank-account 

records relating to money and assets transferred by either movement or documents of title”). The 

Trustee, through discovery under the Federal Rules of Civil Procedure and the Federal Rules of 

Bankruptcy Procedure, can obtain any relevant documents or information possessed by Luxalpha 

or any other Defendants. To the extent these documents are located in Luxembourg, these 

documents can be shipped or obtained digitally. See Bodner v. Banque Paribas, 114 F. Supp. 2d 

117, 132-33 (E.D.N.Y. 2000). Further, to the extent third-parties possess pertinent information, 

the Trustee can compel disclosure pursuant to Rule 45, as made applicable through Bankruptcy 

Rule 9016, or through the Hague Evidence Convention. See Fed. R. Civ. P. 45; Fed. R. Bankr. 

P. 9016; In re: Assicurazioni Generali S.p.A. Holocaust Ins. Litig., 228 F. Supp. 2d 348, 362 

(S.D.N.Y. 2002) (“Numerous courts have held that the use of international letters rogatory is a 

viable alternative to forum non conveniens dismissal.” (internal quotations omitted)). 

If this proceeding were in Luxembourg, however, the Defendants would not be required 

to produce any documents that are harmful to their case or to preserve any documents. (Schiltz 

Decl. 14.) The Defendants, as well as any non-parties from whom the Trustee had requested 

documents, would only be “required” to produce a document that the Trustee can identify with 

specificity, such as the date, name, and recipients of the document. (Id. 15.) Even then, if the 

party or non-party in question failed to produce the document, the Luxembourg court may be 

unable to compel production of the document. (Id. 16-17.) Moreover, because there are no 

significant sanctions for the failure to comply with discovery requests or orders beyond a fine, 

parties frequently decline to make productions that will be adverse to their legal positions. (Id.) 

Accordingly, the factor relating to ease of access to evidence also weighs against dismissal. 

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b. Litigation in Luxembourg Would Cause Inefficiency and 

Unnecessary Delay 

Having this case heard by a Luxembourg court would thwart the expeditious resolution of 

the Trustee’s claims and delay the recovery and distribution of money to victims of Madoff’s 

scam. Bankruptcy courts have consistently acknowledged the adverse effect that a dismissal 

would have on the administration of the estate. See, e.g., Sherwood Inv. Ltd., Inc. v. Royal Bank 

of Scotland N.V. (In re Sherwood Invs. Overseas Ltd., Inc.), 442 B.R. 834, 837 (Bankr. M.D. Fla. 

2010) (“The Court also cannot ignore the ongoing bankruptcy proceedings and the presumption 

that this adversary proceeding should be kept tied to those proceedings for ease of administration 

for the estate.”); I.E. Liquidation, Inc. v. Litostroj Hydro, Inc. (In re I.E. Liquidation, Inc.), 

Bankr. No. 06-62179, 2009 WL 1586706, at *14 (Bankr. N.D. Ohio 2009) (“The litigants in this 

proceeding are not the only parties in interest . . . . The bulk of the estate’s assets sit in a 

liquidating trust awaiting distribution to multitudinous other creditors. It is in the best interests 

of the estate that this litigation be concluded within a reasonable time.”); Estate of Sapper v. 

Seatrain Lines, Inc. (In re Seatrain Lines, Inc.), 32 B.R. 669, 672 (Bankr. S.D.N.Y. 1983) (“As 

far as the other practical problems that makes trial of a case easy, expeditious and inexpensive, 

this court is persuaded that to try this counterclaim in Guatemala when all other proceedings 

involving this debtor are taking place in this court would engender inordinate and unwarranted 

complexity, time and cost.” (internal quotations omitted)). Luxalpha ignores this proceeding’s 

connection to numerous other actions in this district, the need for ease of administration of the 

estate, and the delay in collecting fictitious profits and paying claims that would occur if this 

case were litigated in Luxembourg. Luxalpha has failed to show that “all other factors that might 

make the trial quicker or less expensive” favor dismissal. 

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2. Luxalpha Has Not Shown that the Public Interest Factors Favor 

Litigation in Luxembourg 

Focusing on only two of the public interest factors, Luxalpha unconvincingly asserts that 

Luxembourg’s interest in this litigation is significant and that this Court will face difficult issues 

of foreign law. 52 (Luxalpha Mot. at 22–23.) As explained below, neither argument is sufficient 

to overcome the significant deference accorded the Trustee’s choice to litigate in his home 

forum. 

a. The United States Has Enormous Interest in Having This 

Controversy Decided Domestically 

Without addressing the United States’ interest in unraveling the greatest financial fraud in 

its history, which had and still has New York as its epicenter, Luxalpha argues that the public 

interest factors weigh in favor of dismissal because of Luxembourg’s “significant interest in 

regulating the actions of its financial institutions and investment funds.” (Luxalpha Mot. at 23.) 

The degree of Luxembourg’s interest—no matter how extensive—cannot outweigh the United 

States’ interest in remedying Madoff’s fraud and redistributing Customer Property to Madoff’s 

victims. 

“[T]he United States has a strong interest in applying the fraudulent transfer and 

preference provisions of its Bankruptcy Code,” particularly where the “[d]efendants’ transfers 

have allegedly deprived United States’ creditors of the distribution to which they are entitled in 

the BLMIS liquidation.” Cohmad., 418 B.R. at 81 (internal citations omitted). Bankruptcy 

courts have held similarly in the forum non conveniens context. See In re Teknek, 354 B.R. at 

208 (denying dismissal for forum non conveniens, in part, because “the United States has an 

52 Luxalpha correctly ignores the two factors regarding court congestion and the imposition of jury duty, as neither 

factor weighs in favor of dismissal. With respect to court congestion, “it is well-accepted that the Southern District 

of New York has the resources to adjudicate complex litigation.” Rahl v. Bande, 328 B.R. 387, 408 (S.D.N.Y. 

2005) (internal citations omitted) (collecting cases). And there would be no unfairness in imposing jury duty on the 

New York community to resolve a dispute arising from a massive financial fraud that was executed in New York. 

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interest in liquidating insolvent U.S. debtors consistent with the policies in the U.S. Bankruptcy 

Code”); Eclaire, 375 F. Supp. 2d at 265 (denying dismissal for forum non conveniens because, 

“[a]mong other things, the United States clearly has an interest in this dispute as it involves a 

U.S. trustee acting on behalf of a U.S. creditor trust created by a U.S. court seeking to recover 

unpaid U.S. loans”). The U.S. interest in the Trustee’s recovery and redistribution efforts is 

paramount and outweighs Luxembourg’s interest in regulating Luxalpha’s activities. This factor, 

therefore, weighs heavily against litigating this adversary proceeding in Luxembourg. 

b. There Are No Difficult Problems in Conflict of Laws or the 

Application of Foreign Law 

The Trustee has neither asserted claims under foreign law nor raised any other issues of 

foreign law to be determined by this Court. Conflict of laws is simply a non-issue, and Luxalpha 

cannot overcome this reality with its vague assertion that “questions regarding duties owed by 

the various parties involved and their roles with the funds will surely require an interpretation of 

foreign laws and regulations.” (See Luxalpha Mot. at 22.) 

Luxalpha’s assertion regarding foreign “anti-discovery laws and bank secrecy statutes” is 

similarly unavailing. (See id.) First, courts in this district are well-versed with issues of foreign 

blocking and secrecy statutes. See, e.g., Reino De Espana v. Am. Bureau of Shipping, No. 03 Civ 

3573, 2005 WL 1813017 (S.D.N.Y. Aug. 1, 2005); British Int’l Ins. Co. Ltd. v. Seguros La 

Republica, S.A., No. 90 Civ. 2370, 2000 WL 713057 (S.D.N.Y. Jun. 2, 2000); Gucci Am., Inc. v. 

Curveal Fashion, No. 09 Civ. 8458, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010); Ssangyong 

Corp. v. Vida Shoes Int’l, Inc., No. 03 Civ. 5014, 2004 WL 1125659 (S.D.N.Y. May 20, 2004). 

Such statutes, even if applicable, would not pose difficult problems for this Court. 

Second, Luxalpha has not identified any specific foreign statute that may affect this 

litigation. Nor has Luxalpha identified any relevant information or documents that would be 

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shielded from production by foreign blocking or secrecy statutes. Accordingly, it is unclear how 

discovery in this action will implicate any foreign statutes. 

Third, it is equally unclear whether foreign blocking and secrecy statutes pose any 

relevance to a forum non conveniens analysis. It is well settled that discovery may proceed 

under the Federal Rules despite possible inconsistencies with foreign law. See Linde v. Arab 

Bank, PLC, 463 F. Supp. 2d 310, 314 (E.D.N.Y. 2006) (“[I]t is beyond dispute that the Federal 

Rules of Civil Procedure provide the court with authority to issue discovery orders requiring the 

disclosure of information protected by foreign bank secrecy laws.” (citing Société Internationale 

Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204–06 

(1958)) (additional citation omitted)). Foreign blocking and secrecy statutes have minimal 

application to U.S. discovery and should carry little or no weight in the forum non conveniens 

inquiry. Indeed, Luxalpha fails to cite even a single case in which the court mentions foreign 

blocking or secrecy statutes in the forum non conveniens context. 

Luxalpha has not shown that this factor—or any other relevant factor—weighs in favor of 

dismissal. Consequently, Luxalpha has not met its significant burden to overcome the 

substantial deference owed to the Trustee’s choice of a U.S. forum. Given the numerous 

procedural and substantive disadvantages that litigation in Luxembourg would pose for the 

Trustee, there is a more compelling argument that Luxalpha, and not the Trustee, has engaged in 

forum shopping. See Iragorri, 274 F.3d at 75 (“Courts should be mindful that, just as plaintiffs 

sometimes choose a forum for forum-shopping reasons, defendants also may move for dismissal 

under the doctrine of forum non conveniens not because of genuine concern with convenience 

but because of similar forum-shopping reasons.) 

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D. Luxalpha’s Arguments Relating to the Pending Action in Luxembourg Are 

Erroneous 

1. The “First Filed” Rule Is Inapplicable in the Context of International 

Parallel Proceedings 

Arguing that this Court should defer to Luxalpha’s pending action in Luxembourg (as 

defined in Section III.C.11., infra., the “Luxembourg Action”), Luxalpha mischaracterizes the 

relevant facts and appropriate legal standards. Luxalpha erroneously relies on the “first filed” 

rule (see Luxalpha Mot. at 18,) ignoring that this rule applies only when both actions are 

proceeding in domestic district courts. See Glaxosmithkline Consumer Healthcare, L.P. v. Merix 

Pharm. Corp., No. Civ.A. 05-898, 2005 WL 1116318, at *9 (D.N.J. May 10, 2005) (“The first- 

filed rule essentially provides that in all cases of federal concurrent jurisdiction, the court which 

first has possession of the subject must decide it. Obvious concerns arise when actions involving 

the same parties and similar subject matter are pending in different federal district courts . . . .” 

(internal quotations omitted)); Howard v. Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 

664–65 (S.D.N.Y. 1997) (applying “first-filed” rule to two actions before the same federal 

district court); First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79–80 (2d Cir. 1989) 

(same). 

The Second Circuit applies a separate test with respect to international parallel 

proceedings. Royal & Sun Alliance Ins. Co. of Canada v. Century Int’l Arms, Inc., 466 F.3d 88, 

92–95 (2d Cir. 2006). As a threshold requirement, the court must first determine whether the 

U.S. and foreign proceedings are “parallel,” meaning “the parties in the actions . . . must be 

substantially the same, litigating substantially the same issues in both actions.” Id. at 94–95. If 

the two actions are parallel, a court may dismiss the domestic action only if “exceptional 

circumstances exist that justify the surrender of [the court’s] jurisdiction.” Id. at 93 (“The 

exceptional circumstances that would support such a surrender must, of course, raise 

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considerations which are not generally present as a result of parallel litigation . . . .”). Luxalpha 

has shown neither that the Luxembourg Action is parallel to this action nor that exceptional 

circumstances warrant a dismissal. 53 Thus, Luxalpha’s “first filed” argument is inapposite. 

2. Luxalpha Misrepresents the Principle of Deferring to Foreign 

Liquidations and Fails to Acknowledge Dispositive Distinctions 

Luxalpha’s reliance on the international comity accorded foreign bankruptcy proceedings 

is misplaced. (See Luxalpha Mot. at 19–20.) U.S. courts defer to foreign bankruptcies when a 

creditor seeks to bypass that bankruptcy by initiating an action in the United States against that 

foreign debtor or its property. JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. De C.V., 

412 F.3d 418, 424 (2d Cir. 2005) (“We have repeatedly held that U.S. courts should ordinarily 

decline to adjudicate creditor claims that are the subject of a foreign bankruptcy proceeding.” 

(emphasis added)). Indeed, each case cited by Luxalpha involved that distinct situation. See id. 

(affirming dismissal of action initiated by creditor to collect funds from debtor in foreign 

bankruptcy proceedings); Finanz AG Zurich v. Banco Economico S.A., 192 F.3d 240 (2d Cir. 

1999) (same); In re Int’l Banking Corp. B.S.C., 439 B.R. 614 (Bankr. S.D.N.Y. 2010) (declining 

foreign debtor’s motion in Chapter 15 proceedings for creditor to turn over foreign debtor’s 

property which creditor had previously attached in the United States). This action involves the 

Trustee of a U.S. debtor in a U.S. bankruptcy. Luxalpha, which filed claims in that bankruptcy, 

is a purported creditor of the U.S. debtor. This Court has a substantial interest in enforcing U.S. 

53 The actions are not parallel. Luxalpha’s claims against the defendants in the Luxembourg Action are not 

substantially the same as the Trustee’s bankruptcy claims against Luxalpha and the other defendants in this action. 

Nor will resolution of the Luxembourg Action dispose of all claims in this action. See AAR Int’l, Inc. v. Nimelias 

Enter, S.A., 250 F.3d 510, 518 (7th Cir. 2001) (“The question is not whether the suits are formally symmetrical, but 

whether there is a substantial likelihood that the foreign litigation will dispose of all claims presented in the federal 

case.” (internal quotations omitted)). Nevertheless, dismissal is unwarranted even if the actions are parallel because 

it is not “exceptional” for Luxalpha to litigate in two fora simultaneously. See, e.g., Kitaru Innovations Inc. v. 

Chandaria, 698 F. Supp. 2d 386, 391 (S.D.N.Y. 2010) (“No exceptional circumstances exist here. Indeed, the 

circumstances Defendants cite-for example, the similarity of the parties and issues presented and the burden of 

litigating in two forums simultaneously-are commonly present when a parallel foreign proceeding is ongoing. 

(internal citation omitted)). 

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bankruptcy law, exercising its exclusive jurisdiction over BLMIS’s estate, and maximizing the 

recovery and redistribution of Customer Property. It need not subjugate those interests by 

dismissing the Trustee’s adversary proceeding against multiple Defendants in deference to 

Luxalpha’s foreign liquidation. The authority relied upon by Luxalpha does not suggest 

otherwise. 

3. The Trustee Has Sought an Injunction Preventing His Impleader into 

the Luxembourg Action 

The Trustee’s inclusion in the Luxembourg Action is a violation of the automatic stay, 

various stay orders of the District Court, SIPA, and the Barton doctrine, which precludes actions 

against trustees. The Third Party Writ further threatens the Trustee’s recovery of estate property, 

and impairs this Court’s exclusive jurisdiction over the debtor’s estate. See Memorandum of 

Law in Support of Trustee’s Application for Enforcement of Automatic Stay and Injunction 

Against Patrick Littaye, Pierre Delandmeter, and Access Management Luxembourg S.A., Picard 

v. Access Management Luxembourg S.A., No. 12-01563 (BRL) (Bankr. S.D.N.Y. Apr. 19, 2012) 

[ECF No. 1.]; see also Maxam, 460 B.R. at 116, aff’d, No. 11 Civ. 8629 (JPO), 2012 WL 

1570859 (S.D.N.Y. 2012). The Trustee, therefore, has sought to enforce the automatic stay and 

enjoin AML, Delandmeter, and Littaye from their attempt to implead the Trustee as a third-party 

defendant in the Luxembourg Action. Id. Accordingly, Luxalpha’s forum non conveniens and 

comity arguments—which presuppose that the Trustee will participate in the Luxembourg 

Action—are unpersuasive. The Luxembourg Action does not render Luxembourg a more 

convenient forum for this dispute. Nor does it warrant comity or deference from this Court. See 

JP Morgan Chase Bank, 412 F.3d at 418 (“[D]eference to the foreign court is appropriate so long 

as the foreign proceedings . . . do not contravene the laws or public policy of the United States.” 

(internal citation omitted)). 

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Thus, Luxalpha has failed to provide a single legitimate reason for this Court to dismiss 

this adversary proceeding. Luxalpha’s motion should be denied in its entirety. 

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CONCLUSION 

The Trustee respectfully requests that the Court deny the motions to dismiss in their 

entirety, or, in the alternative, permit limited discovery to allow the Trustee to develop the 

factual record regarding personal jurisdiction over the Moving Defendants. 

Dated: New York, New York Respectfully Submitted, 

August 17, 2012 

BAKER & HOSTETLER LLP 

By: /s/ Karin Scholz Jenson 

Baker & Hostetler LLP 

45 Rockefeller Plaza 

New York, NY 10111 

Telephone: (212) 589-4200 

Facsimile: (212) 589-4201 

David J. Sheehan 

Email: dsheehan@bakerlaw.com 

Karin Scholz Jenson 

Email: kjenson@bakerlaw.com 

Benjamin D. Pergament 

Email: bpergament@bakerlaw.com 

Gonzalo S. Zeballos 

Email: gzeballos@bakerlaw.com 

Samir K. Ranade 

Email: sranade@bakerlaw.com 

Sarah Jane T.C. Truong 

Email: struong@bakerlaw.com 

Sammantha E. Clegg 

Email: sclegg@bakerlaw.com 

Matthew J. Moody 

Email: mmoody@bakerlaw.com 

Constantine P. Economides 

Email: ceconomides@bakerlaw.com 

David Choi 

Email: dchoi@bakerlaw.com 

Attorneys for Irving H. Picard, Trustee 

for the Substantively Consolidated SIPA 

Liquidation of Bernard L. Madoff Investment 

Securities LLC and Estate of Bernard L. Madoff 

113

BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, New ...

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