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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 58 of 133 recommendations . . . in relation to the management and investment policy and strategy of the Fund”—the very responsibilities which were to have been shifted from UBS SA to UBSTPM. (Id. at LuxAlpha 00698–99.) The “recommendations” were more than just mere guidance. Rather, they were to be “act[ed] upon and implement[ed]” by UBSTPM. (Id. at LuxAlpha 00699.) UBSTPM and UBS SA also executed an “Agreement of Understanding and Indemnification,” whereby UBS SA agreed to indemnify UBSTPM with respect to Luxalpha, and UBSTPM agreed to, upon request, delegate its marketing functions to UBS SA. (Pergament Decl. Ex. 55 at 2.) Pursuant to this contract with UBS SA, UBSTPM also agreed to delegate its administration functions to UBSFSL. (Id.) Management company responsibility for Luxalpha was formally shifted in 2006 from UBS SA to UBSTPM. However, UBS SA and its principals retained control over UBSTPM with respect to this role. UBS SA’s numerous connections with the forum should be imputed to UBSTPM for purposes of jurisdiction, as UBSTPM’s function with respect to Luxalpha appears to have been nothing more than a shell corporation controlled by UBS SA. Dorfman, 2002 WL 14363, at *3 (agency jurisdiction found where the corporation present in New York “does all the business which [the foreign corporation] could do were it here by its own officials”); see also Palmieri, 793 F. Supp. at 1190. 5. The Trustee’s Claims Against UBS SA, UBSFSL, and UBSTPM Arise out of Their Contacts with New York Specific jurisdiction exists over each of the Moving UBS Defendants because the Trustee’s Amended Complaint seeks to recover BLMIS funds subsequently transferred to these Defendants as fees from initial transferee Defendants Luxalpha and Groupement, among other claims, and therefore unquestionably “arises out of or relates to” the Moving UBS Defendants’ contacts with this forum. See Burger King, 471 U.S. at 472 (stating that nonresident defendant is 38
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 59 of 133 subject to jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of the forum . . . and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities”); see also Sole Resort, 450 F.3d 100 at 103 (requiring “some articulable nexus between the business transacted and the cause of action sued upon” for jurisdiction under CPLR § 302(a)(1)). The Moving UBS Defendants argue that they are not subject to specific jurisdiction because the Trustee’s claims seek BLMIS customer funds subsequently transferred from Luxalpha and Groupement to the Moving UBS Defendants, such that the Trustee’s claims do not arise out of the Moving UBS Defendants’ contacts with New York. (UBS Mot. at 29–30, 32– 34.) This argument is meritless. The Moving UBS Defendants contracted, interacted, and dealt with BLMIS and Access in New York, as well as Groupement and Luxalpha themselves, to create the business relationship by which UBS could operate and administer Luxalpha and Groupement, which were fully invested in BLMIS in New York, and earn fees as a result. The Trustee now seeks to recover these fees through subsequent transferee claims that would not exist but for the Moving UBS Defendants’ contacts with the forum, and the Trustee’s claims therefore arise out of or relate to these contacts. See Chais, 440 B.R. at 279–80 (exercising jurisdiction where the defendant’s “contacts with the forum and the Trustee’s claims are inextricably related such that but for” the defendant’s contacts with the forum, “there could be no fraudulent transfer claims against Defendant”) 18 ; Maxam, 460 B.R. at 118 (finding that Trustee’s claims “arise out of or relate to” contacts with the United States, since without the subsequent 18 The Court in Chais applied the “but for” test for determining whether the Trustee’s claims in that action were sufficiently related to the contacts with the forum, but noted that certain courts have utilized a “proximate cause” test or another relatedness test that is dependent on the “overall picture” of the defendant’s contacts. Chais, 440 B.R. 280 at n.3. Given the Moving UBS Defendants’ critical role in establishing Luxalpha, and operating Luxalpha and Groupement, the Trustee’s causes of action are so closely related to the contacts at issue that jurisdiction is proper under either of these formulations of the relatedness test. 39
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