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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
Pg 117 of 133
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
97