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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 74 of 133 specific jurisdiction over a corporate officer where the “Adversary Proceeding arises out of [the officer’s] duties as a corporate officer and his corresponding contacts with the United States.” Id.; see also In re Royal Ahold, 351 F. Supp. 2d at 351 (“an individual defendant’s actions directed at the forum, even if those acts were done in that defendant’s corporate capacity” are relevant to jurisdiction); Torco Oil Co. v. Innovative Thermal Corp., 730 F. Supp. 126, 134 n.18 (N.D. Ill. 1989) (jurisdiction permissible over foreign corporate officers where “defendants are ‘primary participants in an alleged wrongdoing intentionally directed at’ a resident of the forum state”) (quoting Calder, 465 U.S. at 790). As demonstrated above, each of the Moving Luxalpha Director Defendants did in fact direct his actions at the United States, through his dominion and control of an investment fund entirely invested in New York. 8. Each of the Moving Luxalpha Director Defendants Is Subject to Jurisdiction Because Luxalpha Transacted Business in New York as His Agent Additionally, each of the Moving Luxalpha Director Defendants is subject to jurisdiction under CPLR 302(a)(1) because Luxalpha transacted business in New York as his agent. The requisite agency test is easily satisfied because Luxalpha transacted business in New York for the benefit of, and with the knowledge and consent of, the Moving Luxalpha Director Defendants, who clearly exercised more than “some control” over the fund. See Kreutter, 522 N.E.2d at 44; see also Retail Software, 854 F.2d at 21-22 (asserting jurisdiction under CPLR 302(a)(1) over two foreign individuals who operated company that sold franchises in New York); In re Sumitomo Copper Litig., 120 F. Supp. 2d at 337 (asserting jurisdiction under CPLR 302(a)(1) over two Monaco residents who operated company that traded copper in New York). First, Luxalpha held a customer account with BLMIS in New York, and moved more than a billion dollars into BLMIS in New York, thus transacting business and engaging in “purposeful activities” in this forum. (Am. Compl. 262 & Exs. A & B.) Next, each of the 54
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 75 of 133 Moving Luxalpha Director Defendants knew of and consented to Luxalpha’s New York activities, as they each authorized Luxalpha’s ongoing investment with BLMIS. A plaintiff is not required to show that an officer expressly requested or consented to the corporation’s actions, as activities of an agent will be attributed to the principal if they authorized the agent to act in the state. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. BP Amoco P.L.C., 319 F. Supp. 2d 352, 360 (S.D.N.Y. 2004). A party “cannot deputize another to take certain actions on its behalf and then disclaim knowledge or interest when those actions give rise to a legal dispute.” Id. Additionally, and notwithstanding the Moving Luxalpha Director Defendants’ protestations that they received no compensation as a result of their service on Luxalpha’s Board (Hondequin Decl. 16 [Bankr. S.D.N.Y. ECF No. 115]; Kranz Decl. 15 [Bankr. S.D.N.Y. ECF No. 113]; Egger Decl. 16 [Bankr. S.D.N.Y. ECF No. 109]; Schroeter Decl. 16 [Bankr. S.D.N.Y. ECF No. 110,]) they each did benefit from their Board service. The Moving Luxalpha Director Defendants undoubtedly received substantial compensation from their employer, UBS SA, during the time they served on Luxalpha’s board, and it is possible they received other benefits as well—such as career advancement at UBS SA, undisclosed bonuses, or other consideration. See Retail Software, 854 F.2d at 23. Finally, each of the Moving Luxalpha Director Defendants certainly exercised “some control” over Luxalpha’s investment activity. “The required control need not rise to the level of absolute control over the acts or decisions of the putative agent; rather, it may involve the ability of the principal to influence such acts or decisions by virtue of the parties’ respective roles.” Scholastic, Inc. v. Stouffer, No. 99 Civ. 11480 (AGS), 2000 WL 1154252, at *5 (S.D.N.Y. Aug. 14, 2000) (citing CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 366 (2d Cir. 1986)). As described above, and among other actions, Hondequin and Egger authorized the opening of 55
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