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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 98 of 133 entities. 40 Through this lawsuit, the Trustee is seeking the return of these very fees. Delandmeter’s actions enabled the subsequent transfer of Luxalpha’s assets—which he knew included hundreds of millions of dollars withdrawn from BLMIS—and demonstrate his minimum contacts with the forum. Through his role on the “Advisory Committee” for UBSTPM, Delandmeter was also involved in “determining the investment policy of [Luxalpha],” the “purchase and sale of investments in accordance with [Luxalpha’s] investment policy,” and “any matters in relation to which the Prospectus provides for the Management Company, or its delegates, to take a decision,” to name just a few duties. (Pergament Decl. Ex. 54 at LuxAlpha 00699.) His prominent role directing Luxalpha’s response to Madoff’s arrest and the collapse of BLMIS also illustrates his high level of involvement with Luxalpha. A few days after Madoff’s arrest, Delandmeter notified the key Luxalpha players of the suspension of Luxalpha and the necessity to notify the Luxembourg financial regulator. (Pergament Decl. Ex. 82.) Delandmeter participated in three days of post-collapse board meetings with the Moving Luxalpha Director Defendants that addressed notification of the Luxembourg financial regulator, treatment of redemptions, and potential legal action and exposure. (Pergament Decl. Exs. 83-85.) During the course of these meetings, Delandmeter and the Moving Luxalpha Director Defendants discussed a “partial payment request” of 5 million Euros (over $6 million U.S. dollars) Delandmeter submitted on behalf of the “Delandmeter Law Firm” to Luxalpha—demonstrating the significant 40 For example, he signed the February 2004 Portfolio Management Agreement between Luxalpha and UBS SA, the September 2006 Management Company Services Agreement between Luxalpha and UBSTPM, and the November 2008 Management Company Services Agreement between Luxalpha and AML, pursuant to which UBS SA, UBSTPM, and then AML were entitled to receive fees as Luxalpha’s official portfolio management companies. (Pergament Decl. Exs. 23 at 6; 52 at LuxAlpha 00424; 132 at 21.) 78
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 99 of 133 amounts of transfers he appears to have received from the fund. 41 (See Pergament Decl. Ex. 85 at 3.) Notwithstanding Delandmeter’s multiple contacts with the forum, he argues that he is not subject to this Court’s jurisdiction because “according to Luxembourg law, a legal advisor such as Delandmeter often sits on the board of directors, but he is legally precluded from engaging in the day to day business of the enterprise.” (Delandmeter Mot. at 4.) Regardless of Luxembourg law on legal advisors, it is clear from the evidence that Delandmeter did in fact engage in the day-to-day business of Luxalpha, as well as the Access entities on whose boards he served. Likewise, Delandmeter’s consistent participation in the Quarterly Strategic Meetings in New York and his meeting with Madoff in New York were not isolated, casual encounters. Delandmeter had a vested interest in Luxalpha’s and Access’s successes given his role as a director of Luxalpha, AIA Inc., and several of the other Access entities. These contacts, which were essential to the continuance of Access and Luxalpha’s business relationship with BLMIS, demonstrate Delandmeter’s purposeful direction of investment activity to New York and subject Delandmeter to the Court’s jurisdiction. 10. The Moving Access Defendants and Delandmeter’s Arguments to the Contrary Mischaracterize the Appropriate Legal Standards and Misstate the Facts In an effort to avoid the Court’s jurisdiction, the Moving Access Defendants and Delandmeter argue that they cannot be haled into court in the United States as a result of their 41 Jurisdiction over Delandmeter is also proper under CPLR § 302(a)(1), because Luxalpha transacted business in New York as his agent. Jurisdiction through agency is properly found if the corporate entity “engaged in purposeful activities with this State in relation to [the] transaction for the benefit of and with the knowledge and consent of the [individual] and…[the individual] exercised some control over [the corporate entity] in the matter.” Kreutter, 522 N.E.2d at 44; see also In re Sumitomo Copper Litig., 120 F. Supp. 2d at 337. Luxalpha transacted business in New York with the knowledge and consent, and for the benefit of Delandmeter, who was undoubtedly well compensated for his role as Luxalpha’s director and legal advisor. (See Pergament Decl. Ex. 85 at 3.) Further, Delandmeter clearly exercised more than “some control” over Luxalpha—indeed, he was a primary actor with respect to Luxalpha and its contacts with BLMIS. See Retail Software, 854 F.2d at 22. 79
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