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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their authority as board members to help Luxalpha achieve its stated purpose of directing
investor money into this forum. (See Am. Compl. 37-40, 42, 85-89.)
Each of the Moving Luxalpha Director Defendants made numerous acts and decisions to
further the direction of investment activity to BLMIS in New York, as set forth below:
� Alain Hondequin
o Served as director of Luxalpha from inception in February 2004 through liquidation in
April 2009 (Am. Compl. 39.) Was a high-level UBS SA employee during this time (See
id. 39; Hondequin Decl. 4 [Bankr. S.D.N.Y. ECF No. 115.])
o Authorized Luxalpha’s opening of its customer account with BLMIS in New York
(Pergament Decl. Ex. 8 at 3.)
o Approved Luxalpha’s delegation of asset management authority to BLMIS through
authorization of the “Trading Authorization Limited to Purchases of Sales and Securities
and Options” between BLMIS and UBS SA (Id. at 4; see Pergament Decl. Ex. 9 at 7–9.)
o Approved Luxalpha’s delegation of custodial authority to BLMIS through resolution
authorizing that “the assets of the Fund be held by the Custodian for the fund either with
itself and with a US registered broker-dealer” (Pergament Decl. Ex. 8 at 2; see Pergament
Decl. Ex. 9 at 18.)
o Authorized Luxalpha’s sales prospectuses that concealed BLMIS’s role as actual
custodian and asset manager (Pergament Decl. Exs. 8 at 2; 12; see, e.g., Pergament Decl.
Ex. 10.) 23
o Authorized Luxalpha board resolution confirming that Luxalpha was in conformity with
the determined investment policy and the investment restrictions mentioned in the
prospectus (Pergament Decl. Ex. 14.)
23 Federal courts routinely hold that a foreign party’s approval of a United States securities filing subjects the party
to jurisdiction. See, e.g., Itoba, Ltd. v. LEP Grp. PLC, 930 F. Supp. 36, 41 (D. Conn. 1996) (director defendant
subject to jurisdiction in the United States for approving the filing of a particular form required by the SEC that later
was found to be fraudulent); Kelley v. Cinar Corp. (In re CINAR Corp. Sec. Litig.), 186 F. Supp. 2d 279, 306
(E.D.N.Y. 2002) (“signing the Registration Statement was enough to put the defendant on notice of potential suit in
the United States and shows purposeful availment”); In re Royal Ahold N.V. Sec. & ERISA Litig., 351 F. Supp. 2d
334, 351-52 (D. Md. 2004) (noting that “United States courts frequently have asserted personal jurisdiction over
individual defendants who sign or, as control persons, approve the filing or disseminating of, particular forms
required by the SEC which they knew or should have known would be relied on by U.S. investors”). Although
Luxalpha was not registered with the SEC as a fund marketed to overseas investors, it nonetheless was entirely
invested—and marketed itself as a fund that mainly invested—in the United States. (See Pergament Decl. Ex. 10 at
3, 5.)
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