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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 52 of 133 h. UBS SA Submitted a Customer Claim to the Trustee on Behalf of Luxalpha On March 2, 2009, UBS SA filed a customer claim in the BLMIS liquidation, Claim No. 005025, on behalf of Luxalpha, which was signed by UBS SA employees Marcel Bruhwiler and Ueli Schlaepfer. (Pergament Decl. Ex. 22 at 4.) This claim lists “UBS (Luxembourg) S.A. on behalf of LUXALPHA Sicav” as the Customer, and provides UBS SA’s Taxpayer Identification Number. (Id. at 1.) The submission of this claim on Luxalpha’s behalf in New York is yet another UBS SA contact with the forum and further evidence the UBS SA has availed itself of the protections of U.S. law. 16 2. UBSFSL Is Subject to the Court’s Jurisdiction Because it Administered Luxalpha and Groupement, Directing Investments to BLMIS in New York UBSFSL’s contention that its “jurisdictionally relevant business activities . . . had virtually no connection to the United States” (UBS Mot. at 29) rings hollow. UBSFSL served as administrator of Luxalpha and Groupement (see Boulat Decl. 9, 12 [Bankr. S.D.N.Y. ECF No. 111]) and took steps to direct these funds’ investments to BLMIS in New York, which actions subject UBSFSL to the specific jurisdiction of the Court. See Maxam, 460 B.R. at 117 (jurisdiction found as a result of defendants’ “directing investments to the United States”); Cromer, 137 F. Supp. 2d at 476-77 (finding that foreign administrator of a fund was subject to jurisdiction given “the quality and nature of [its] relationship with the United States, arising out of [its] work for the Fund” and because it “received from the United States all of the information from which it prepared the statements it disseminated as Fund administrators”). 16 The Trustee does not contend that UBS SA submitted itself to the jurisdiction of the Court by filing the claim on Luxalpha’s behalf, but rather that the preparation and submission of the claim by UBS SA constitutes yet another contact with the forum. 32
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 53 of 133 As administrator, UBSFSL processed subscriptions and redemptions on behalf of investors in Luxalpha and Groupement. UBSFSL received Luxalpha subscription requests from investors, and then communicated with UBS SA so UBS SA could receive investor money and transfer it into BLMIS in New York. (Pergament Decl. Exs. 28 at 11–12; 29 at 1.) And UBSFSL received Groupement subscription requests from investors, and then coordinated with UBS SA so that this money could be invested in BLMIS in New York through the Bank of Bermuda. (Pergament Decl. Exs. 18 at 8, 13–14; 37.) UBSFSL also worked to process Luxalpha and Groupement redemption requests in a similar manner, in coordination with UBS SA. (Pergament Decl. Exs. 28 at 11–12; 18 at 10.) UBSFSL also served additional roles that give rise to jurisdiction. Through contracts with Luxalpha and Groupement, it was charged with responsibility for keeping the funds’ accounting—including but not limited to calculating the NAV, preparing the annual accounts, reports, and financial statements, and maintaining the liaison with the auditor of the funds. (Pergament Decl. Exs. 38 at 3-4; 39 at LuxAlpha 00644-45; 40 at LuxAlpha 00471-75; 41 at 1- 2.) UBSFSL used trade and account information provided by BLMIS in New York through UBS SA and Access’s London office, in order to calculate the NAV. (Pergament Decl. Exs. 28 at 7– 8, 15–16; 18 at 15–16.) Further, with respect to Groupement, and with respect to Luxalpha after August 2006, UBSFSL also served as Registrar and Transfer Agent, responsible for issuing, redeeming, and transferring investors’ shares in the funds. (Pergament Decl. Exs. 39 at LuxAlpha 00645-47; 40 at LuxAlpha 00472-74; 41 at 2-3.) UBSFSL also monitored the investment restrictions that Luxalpha purportedly placed on the types of securities that Madoff was to be trading, and was responsible for contacting Frank DiPascali at BLMIS if Luxalpha did not have sufficient cash on 33
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