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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 92 of 133 foreign Access subsidiaries as a single business enterprise managed out of New York, without which AML could not have survived. See Van Egeraat, 2009 WL 1209020, at *2–4; Dorfman, 2002 WL 14363, at *11. 7. AP (Lux) Is Further Subject to Jurisdiction Because of Its Agency and Mere Department Relationships with Access’s New York Office AP (Lux) is also subject to this Court’s jurisdiction because of its agency and mere department relationships with Access’s New York office. As with the other Luxembourg-based Moving Access Defendant AML, AP (Lux) was “only a legal entity,” with no employees of its own. (Pergament Decl. Ex. 105 at 13.) 34 Although analyses on AP (Lux) letterhead were distributed for both Groupement (Pergament Decl. Exs 156, 157,) and Luxalpha (Pergament Decl. Ex. 158, 159,) these analyses could only have been performed by Access employees working at the direction of Littaye and Villehuchet, such that the jurisdictional contacts of Access’s New York office should be imputed to AP (Lux) as a result of this agency relationship. See Van Egeraat, 2009 WL 1209020, at *2–4. Jurisdiction over AP (Lux) is also proper because it operated as a mere department of Access’s New York office. AP (Lux) was commonly owned by the owners of Access’s New York office, Littaye and Villehuchet, who held at least 80% of the shares of AP (Lux). 35 As with AML, the other factors of the mere department test are satisfied because AP (Lux) was an entity with no employees that nonetheless earned substantial fees from Luxalpha and Groupement in 34 A 2008 contact list for various entities, including AP (Lux), shows an address and a phone number for the office, but not a single Access employee is associated with this phone number, and only two Access principals, Littaye and Delandmeter (who are both subject to the Court’s jurisdiction), have any Luxembourg contact information. (Pergament Decl. Ex. 109.) 35 Upon its creation in March 2007, AP (Lux) was owned 40% by Littaye, 40% by Villehuchet, and 20% by Banque Degroof. (Pergament Decl. Ex. 96.) However, Banque Degroof appears to no longer own a stake in AP (Lux)— according to Access’s July 2011 Corporate Ownership Statement, Littaye-controlled Dalestrong and Ms. Villehuchet each own 50% of the entity. [S.D.N.Y. ECF No. 5 at 3.] 72
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 93 of 133 connection with investment services purportedly provided by AP (Lux) to these funds. AML earned these fees as a result of it being dominated and controlled by, and financially dependent on, Access’s New York headquarters, which operated AP (Lux) and the other overseas Access subsidiaries as a single business enterprise managed out of New York, and without which AP (Lux) could not have existed. See Van Egeraat, 2009 WL 1209020, at *2–4; Dorfman, 2002 WL 14363, at *11. 8. AP (Suisse) Is Further Subject to Jurisdiction Because of Its Agency and Mere Department Relationships with Access’s New York Office As with AIA Ltd., AP (Suisse) also appears to have been a shell entity created merely to accept fees on behalf of Access while nominally serving as Groupement’s investment manager. A note from Littaye to Villehuchet suggests AP (Suisse) was created in Switzerland to replace Bahamas-incorporated AIA Ltd. as the investment manager for Groupement and Groupement Levered due to pressure from the AMF, the French financial regulator, to have the funds’ investment manager subject to the supervision of a financial regulatory authority. (Pergament Decl. Ex. 160.) However, an Access contact list from 2008 does not show any office in Switzerland or any Swiss based employees. (Pergament Decl. Ex. 109.) Additionally while, risk analysis reports for Groupement and Groupement Levered appear on AP (Suisse) letterhead, as AP (Suisse) had no employees these reports must have been prepared by Access’s New York office, which was responsible for risk management functions, or by AIA Europe employees in London working at the direction of the New York office. 36 (See, e.g., Pergament Decl. Exs. 162, 163.) AP (Suisse) appears to have been a shell entity created at the direction of Access as a 36 It is not clear whether AP (Suisse) ever became a functioning office by the time of BLMIS’s collapse. Indeed, Access meeting minutes from December 2008 note that AP (Suisse) was not operational, with the investment management agreement between Groupement and AP (Suisse) yet to be formally executed. (Pergament Decl. Ex. 161 at 4.) These minutes also indicate that investment manager fees from Groupement and Groupement Levered continued to be invoiced to previous manager AIA Ltd. through the end of the third quarter of 2008. (Id. at 3.) 73
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