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