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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. 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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