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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 42 of 133 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 22
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 43 of 133 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. 23
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