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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 94 of 133 result of regulatory pressure, which held itself out as Groupement’s investment manager—but in reality was operated and managed by Access personnel directed by the New York office. The jurisdictional contacts of the New York office should thus be ascribed to AP (Suisse) as a result of their agency relationship. Van Egeraat, 2009 WL 1209020, at *2–4. Jurisdiction is also appropriate over AP (Suisse) as a mere department of Access’s New York office. As to the threshold requirement of common ownership, Littaye and Villehuchet, who controlled and owned Access’s New York office, also possessed an ownership stake in AP (Suisse). 37 Further, the remaining factors of mere department analysis are satisfied because AP (Suisse) was an entity with no employees, and was dominated and controlled by, and financially interdependent with, Access’s New York headquarters, which operated AP (Suisse) and the other overseas Access subsidiaries as a single business enterprise managed out of New York. See Van Egeraat, 2009 WL 1209020, at *2–4; Dorfman, 2002 WL 14363, at *11. 9. Delandmeter Is Subject to Jurisdiction Because He Undertook Numerous Actions Directed at New York This Court has specific personal jurisdiction over Delandmeter because he purposefully availed himself of the privilege of transacting business in New York and undertook numerous actions in the state that were directed at maintaining and enhancing Access’s relationship with BLMIS. Delandmeter was among the incorporators of Luxalpha. He also served as Luxalpha’s legal advisor, and served on its board as well as the boards of several Access entities. He 37 Littaye and Villehuchet were among the initial incorporators of AP (Suisse) in May 2007, along with Colin Vidal of Aforge Capital Management (“Aforge”). (Pergament Decl. Ex. 164.) Littaye and Villehuchet received equity shares in AP (Suisse). (See Pergament Decl. Ex. 165.) However, according to Access’s July 2011 Corporate Ownership Statement, an entity called “Access Participation (Luxembourg)” now owns a 100% interest in AP (Suisse). [S.D.N.Y. ECF No. 5 at 3.] The Trustee can find no record of a corporation by this name, but a corporation named Access Participations S.A. was formed in Luxembourg in 2008. (Pergament Decl. Ex. 166.) At incorporation, over 99% of the shares of Access Participations S.A. were assigned to Littaye, with the remaining share assigned to Delandmeter. (Id.) Access Participations S.A. was put into liquidation in 2010, with Delandmeter serving as the liquidator. (Pergament Decl. Ex. 167.) Given the complexity and changing nature of the ownership interests and roles performed by the Moving Access Defendants, if the Court finds that the Trustee has not made a prima facie showing of jurisdiction, targeted jurisdictional discovery would help clarify the relevant facts. 74
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 95 of 133 frequently attended Access’s business meetings and engaged in other BLMIS-related activities in New York, including meeting with Madoff in New York. See, e.g., Miller v. Calotychos, 303 F. Supp. 2d 420, 425–27 (S.D.N.Y. 2004) (finding jurisdiction over U.K. defendants based in substantial part on two lengthy meetings with plaintiff in New York during which the parties promoted their joint venture and discussed details regarding ownership and management of same); Zainal v. Am.-Europe-Asia Int’l Trade and Mgmt. Consultants, Ltd., 670 N.Y.S.2d 76, 76-77 (1st Dep’t 1998) (holding that defendant’s meeting in New York to negotiate and enter into an agreement “was a purposeful availment of the privilege of conducting business in this jurisdiction rather than an insignificant and fortuitous transitory presence”). Delandmeter’s participation in meetings in New York to conduct Access’s and Luxalpha’s business was not “isolated” but rather was continuous and essential to the success of Access and Luxalpha. This proceeding arises directly out of Delandmeter’s contacts with the forum. Further, although Delandmeter is not automatically subject to personal jurisdiction in the United States because of his role as a corporate officer, his status as a director “does not somehow insulate [him] from jurisdiction” arising from his business-related contacts with the United States. See In re Bozel S.A., 434 B.R. at 99–100 (internal quotations omitted) (“The fact that [defendant]’s contacts with the United States arise from his corporate capacity does not shield him from personal jurisdiction. Further, it is unreasonable for [defendant] to believe that he could regularly conduct business in the United States and seek the protection of its laws and courts, and at the same time believe he could escape the jurisdictional reach of the United States’ courts.” (internal citations omitted)). Rather, the Bankruptcy Court may assert 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. at 100. 75
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