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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“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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