Zhivilo and Khaidarov against Deripaska and Makhmudov
Continuation of the RICO complaint against Izmaylovskaya gang.
The text of the document has been extracted automatically and may contain errors.
### Text extracted from: https://tbcarchives.org/wp-content/uploads/Zhivilo-and-Khaidarov-against-Deripaska-and-Makhmudov.pdf
Case: 09-2388 Document: 00319606742 Page: 1 Date Filed: 05/13/2009
IN THE
In re: Davis International, LLC, Holdex, LLC, Foston Manage^
AND
Omni Trusthouse, Ltd.
Petitioners
May
PETITION FOR A WRIT OF MANDAMUS
Bruce S. Marks
Thomas Sullivan
Marks & Sokolov, LLC
1835 Market Street, 28th Floor
Philadelphia, Pennsylvania 19103
215-569-8901
Attorneys for Petitioners
►
»
I
I
Case: 09-2388 Document: 00319606742 Page: 2 Date Filed: 05/13/2009
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES…………………………………………………………………………….. iii
PRELIMINARY STATEMENT…………………………………………………………………………..1
BACKGROUND………………………………………………………………………………………………… 2
A. Jurisdiction……………………………………………………………………………. 2
B. Procedural History……………………………………………………………………………….2
1. The 2000 Base Metal Case…………………………………………………………….. 2
2. The 2004 Chancery Court Case……………………………………………………….2
3. Respondents’ Removal and the Amended Complaint………………………3
4. The Re-Filed Chancery Court Case………………………………………………… 4
C. The Original Motion……………………………………………………………………………. 4
1. Proceedings in the District Court …………………………………………………….4
2. Proceedings in This Court………………………………………………………………. 5
D. The Re-Filed Motion………………………………………………………………………………5
E. The Cherney Decision……………………………………………………………………………. 6
1. The Inadequacy of the Russian Forum in Cases Against
Deripaska………………………………………………………………………………………. 6
2. The Bad Faith of Chemoi and Deripaska in Base Metal………………….8
3. The Links of Chemoi and Deripaska to Malevsky …………………………. 9
i
►
1
i
*
*
‘
(
Case: 09-2388 Document: 00319606742 Page: 3 Date Filed: 05/13/2009
F. Petitioners’ Request for Supplemental Briefing Based Upon
Cherney…………………………………………………………………………………………………… 9
G. The Undue Delay In Decision……………………………………………………………….10
H. Prejudice Caused By Delay…………………………………………………………………. 10
I. The Backlog in the District of Delaware…………………………………………. 10
ARGUMENT…………………………………………………………………………………………………….11
A. Petitioners Have No Other Means to Attain Relief…………………………11
B. Petitioners Have a Clear and Undisputable Right to Relief………… 13
1. Respondents’ Motion Is Barred By The Anti-Injunction Act
On Its Face…………………………………………………………………………………… 13
2. No Statutory Exception Applies Under The Anti-Injunction Act…. 15
3. The “Necessary In Aid Of Its Jurisdiction” Exception Does
Not Apply Under the Anti-Injunction Act or All Writs Act………….. 17
4. The “Re-Litigation” Exception Does Not Apply Under the
Anti-Injunction Act or All Writs Act……………………………………………. 18
5. The Anti-Suit Motion Should Be Denied Based on Cherney………… 20
C. The Writ Is Appropriate Under the Circumstances……………………….. 22
CONCLUSION……………………………………………………………………………………………….. 24
Corporate Disclosure Statements
Certifications
Certificate of Service
Exhibits A-N
ii
i
I
’
»
I
>
(
Case: 09-2388 Document: 00319606742 Page: 4 Date Filed: 05/13/2009
TABLE OF AUTHORITIES
FEDERAL CASES
Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398
U.S. 281 (1970)……………………………………………………………………………………….. 13, 16,
17
Barancikv. Investors Funding Corp, of N.Y., 489 F.2d 933 (7th Cir. 1973)………………. 14
.
Baris v. Sulpico Lines, Inc., 74 F.3d 567 (5th Cir. 1996)…………………………………………. 19
Base Metal Trading, SA. v. Russian Aluminum, 253 F. Supp. 2d 681 (S.D.N.Y.
2003), affd 98 Fed.Appx.47 (2d Cir. 2004)…………………………………………………………3
Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D. N.Y. 1996)………………………………….6
Cf. La Buy v. Howes Leather Co., 352 U.S. 249, 1 L. Ed. 2d 290, 77 S. Ct. 309
(1957)……………………………………………………………………………………………………………22
Cheney v. United States District Court, 542 U.S. 367, 159 L. Ed. 2d 459, 124 S.
Ct. 2576 (2004)) (citations, internal quotations marks and brackets omitted…………. 11
Colo. River Water Conservation District v. United States, 424 U.S. 800 (1976)…………..11
Davis International, LLC v. New Start Group Corp., 488 F.3d 597 (3d. Cir. 2007)………. 5
Davis International, LLC v. New Start Group Corp., 2006 U.S. Dist. LEXIS
13990 (D.Del. March 29, 2006)………………………………………………………………………..20
Davis International, LLC v. New Start Group Corp.,No. 04-1482, 2006 U.S.
Dist. LEXIS 13990 (D.Del. March 29, 2006)……………………………………………………….5
De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212 (1945)…………………..12
In re Diet Drugs Phentermine/Fenfluramine/ Dexfenfluramine) Products Liability
Litigation, 369 F.3d 293 (3d Cir. 2004)…………………………………………………………….. 15
In re Diet Drugs Products Liability Litigation, 418 F.3d 372 (3rd Cir. 2005)………………11
Exxon Corp. v. Chick Kam Choo, 486 U.S. 140 (1988)…………………………………………1, 18
Guidi v. Intercontinental Hotels Corp., 224 F.3d 142 (2d Cir. 2000)………………………….. 6
Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195 (3d Cir.
1992)……………………………………………………………………………………………………………. 16
iii
>
*
>
►
,
,
Case: 09-2388 Document: 00319606742 Page: 5 Date Filed:- 05/13/2009
HSBC USA, Inc. v. Prosegur Paraguay, S.A., 2004 U.S. Dist. LEXIS 19750 (S.D.
N.Y. 2004)………………………………………………………………………………………………………6
Insurance Co. v. Comstock, 83 U.S. (16 Wall.) 258,21 L. Ed. 493 (1873)………………… 23
Johnson v. Rogers, 917 F.2d 1283 (10th Cir. 1990)…………………………………………… 22, 23
Jones v. Shell, 572 F.2d 1278 (8th Cir. 1978)…………………………………………………………..22
Kan. Public Employees Retirement System v. Reimer & Koger Associates, Inc.,
77 F.3d 1063 (8th Cir. 1996)………………………………………………………………………..5
Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1980)……………………………………….14, 15
In Re Kensington International, 353 F.3d 211 (3d Cir. 2003)…………………………………….. 2
Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987)…………………………………………………..14, 16,
17
Madden v. Myers, 102 F.3d 74 (3d Cir. 1996)…………………………… 12
Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994)………………………………………………………….. 16
McClellan v. Young, 421 F.2d 690 (6th Cir. 1970)……………………………………………………12
Northeast Women’s Center, Inc. v. McMonagle, 868 F.2d 1342 (3d Cir. 1989)………….. 21
Pastewka v. Texico, Inc., 565 F.2d 851 (3d Cir. 1977)………………………………………………20
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)…………………………………………………… 20
Precision Institute Man. Co. v. Aut. Maintenance Machine Co., 324 U.S. 806
(1945)……………………………………………………………………………………………………………21
Radsoulzadeh v. Associated Press, 574 F. Supp. 854 (S.D. N.Y. 1983) affd 767
F.2d 908 (1985 2d Cir.)………………………………………………………………………………. 6
Retirement System v. J.P. Morgan Chase & Co., 386 F.3d 419 (2d Cir. 2004)…………….19
Roche v. Evaporated Milk Association, 319 U.S. 21 (1943)……………………………………..11
Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir. 1978), cert,
dismissed, 442 U.S. 925 (1979)…………………………………………………………………..14
iv
I
*
l
t
(
Case: 09-2388 Document: 00319606742 Page: 6 Date Filed: 05/13/2009
Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F,3d 355 (3d Cir.
1996)……………………………………………………………………………………………………… 20
In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992)………………………………….. 12
Sharon Steel citing Will v. Calvert Fire Insurance Co., 437 U.S. 655, 57 L. Ed. 2d
504, 98 S. Ct. 2552 (1978)………………………………………………………………………… 23
In re Sharon Steel Corporation, 918 F.2d 434 (3d Cir. 1990)……………………………………. 12
Standard Microsystems Corp. v. Texas Instruments Inc., 916 F.2d 58 (2d Cir.
1990)……………………………………………………………………………………………………….14
Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976)…………………………… 23
Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003)…………………….. 18
Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000)………………………………..6
STATE CASES
Davis International v. New Start Group Corp., C.A. No. 1297-N, 2005 Del. Ch.
LEXIS 169 (Del. Ch. Oct. 27, 2005)……………………………………………………………. 4
Davis International v. New Start Group Corp., C.A. No. 1297-N, 2006 Del. Ch.
LEXIS 150 (Del. Ch. Aug. 22,2006)……………………………………………………………. 4
Maritime-land Industrial Contractors, Inc. v. Caribbean Petroleum Refining, LP,
777 A.2d 774 (Del. 2001)………………………….. ,…………………………………………………. 19
FEDERAL STATUTES
12U.S.C. §1441a(l)………………………………………………………………………………………………5
28 U.S.C. §1446(d)………………………………………………………………………………………… 15, 17
28 U.S.C. § 1651……………………………………………………………………………………… ‘……..2, 12
The Anti-Injunction Act, 28 U.S.C. §2283……………………………………………………………… 13
Racketeer Influenced Corrupt Organization Act, 18 U.S.C. § 1961 et seq……………………..3
MISCELLANEOUS
18 Wright, Miller & Cooper, Federal Practice and Procedure § 4477, at 782
(1981)…………………………………………………………………………………………..
.20
v
*
>
I
*
i
Case: 09-2388 Document: 00319606742 Page: 7 Date Filed: 05/13/2009
PRELIMINARY STATEMENT
Petitioners seek mandamus to compel the district court to deny a motion
for an anti-suit injunction which has been fully briefed and pending for
decision for over 19 months. Until this motion is resolved, the Delaware
Court of Chancery refuses to move forward on Petitioners’ non-federal claims
which were re-filed there after Respondents removed Petitioners’ complaint,
which contained RICO claims. The Petition should be granted because (1)
there are no other means to attain the relief requested, given the district court’s
failure to rule; (2) the right to the writ is clear and indisputable because, inter
alia, the anti-suit motion is barred by the Anti-Injunction Act and Exxon Corp.
v. Chick Kam Choo, 486 U.S. 140, 149 (1988), which prohibits district courts
from prohibiting plaintiffs from re-filing non-federal claims in state court
which have been dismissed for forum non in federal court; and (3) the writ is
otherwise appropriate.
Petitioners are in a classic “Catch 22”; the Chancery Court will not lift
the stay until the anti-suit motion is resolved and the district court will not
decide the anti-suit motion. This gross injustice supports the relief of
mandamus particularly when the anti-suit motion may not be granted as a
matter of law based on the Anti-Injunction Act and Chick Kam Choo,
particularly when, as here, Delaware applies a much different forum non
*
I
I
*
»
Case: 09-2388 Document: 00319606742 Page: 8 Date Filed: 05/13/2009
standard. This Court should compel the district court to deny the motion, or
alternatively, compel the district court to decide the motion within 60 days or
reassign the matter to a different judge as designated from the District of New
Jersey or Eastern District of Pennsylvania.
BACKGROUND
A. Jurisdiction
Under the All Writs Act “the Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a); See In Re Kensington International, 353 F.3d 211, 219 (3d
Cir. 2003) (“We have the power to issue writs of mandamus under the All
Writs Act”).
B. Procedural History
1. The 2000 Base Metal Case
On December 19, 2000, suit was commenced in the Southern District of
New York alleging that Oleg Deripaska (“Deripaska”) and his partner,
Mikhail Chemoi (“Chemoi”), among others, took over an aluminum plant in
Russia through various violations of RICO. Petitioners joined the matter
when an amended complaint was filed in regard to their claims related to the
takeover of Kachkanarsky Gok (“Gok”), a vanadium plant, in 2001. The
2
►
*
I
I
*
»
Case: 09-2388 Document: 00319606742 Page: 9 Date Filed: 05/13/2009
court stayed merits discovery and then dismissed the action under the federal
forum non doctrine. See Base Metal Trading, SA. v. Russian Aluminum, 253
F.Supp.2d 681 (S.D.N.Y. 2003), ajf’d 98 Fed.Appx.47 (2d Cir. 2004).
2. The 2004 Chancery Court Case
On November 4, 2004, Petitioners filed an action (the “Original
Action”) in the Delaware Court of Chancery (“Chancery Court”), asserting
claims related to the theft of their shares in Gok, by Respondents, including
Delaware corporations New Start Group Corp., Veniton Corp., and Pan
American Corp., and their beneficial owners, Deripaska and Chemoi.
Petitioners alleged a scheme in violation of the Racketeer Influenced Corrupt
Organization Act, 18 U.S.C. §1961 et seq. (“RICO”) and non-federal law
claims. Complaint, Exhibit A. In retaliation for the filing of the case, the
mother of Jalal Khaidarov, one of Petitioners’ principals and key witnesses,
was murdered in Uzbekistan. Opposition to Motion to Stay, at 5 and
Khaidarov Dec., 11^33-38, attached as Exhibit B. The complaint alleged that
Chemoi and Deripaska were partners with Anton Malevsky, a Russian
American mafia leader, who threatened Khaidarov’s life. Complaint, ^2, 38
44, Exhibit A.
3. Respondents’ Removal and the Amended Complaint
On November 30, 2004, Respondents removed the Original Action
3
*
I
1
►
Case: 09-2388 Document: 00319606742 Page: 10 Date Filed: 05/13/2009
based on the federal question posed by RICO (the “Removed Action”) for the
sole purpose of obtaining a forum non dismissal. Petitioners amended their
complaint to delete the non-RICO claims. First Amended Complaint, Exhibit
C.
4. The Re-filed Chancery Court Case
On April 26, 2005, Petitioners’ non-RICO claims were re-filed in the
Court of Chancery (the “Chancery Action”). Chancery Complaint, Exhibit D.
The Chancery Court granted Respondents’ motion for stay on October 27,
2005 based on the concern that allowing a parallel adjudication to proceed
would result in duplication of time, effort and expense. Davis Int 7 v. New
Start Group Corp., C.A. No. 1297-N, 2005 Del. Ch. LEXIS 169, * 11 (Del.
Ch. Oct. 27, 2005). Petitioners’ subsequent motion to lift the stay was denied
A
on August 22, 2006. Davis Int’I v. New Start Group Corp., C.A. No. 1297-N,
2006 Del. Ch. LEXIS 150 (Del. Ch. Aug. 22,2006). The Chancery Action
remains stayed, over Petitioners’ objection, pending resolution of the anti-suit
motion.
.
C. The Original Motion
1. Proceedings in the District Court
The court stayed merits discovery in the Removed Action and on April
22, 2005, Respondents moved for an anti-suit injunction to enjoin Petitioners
4
I
1
I
I
»
Case: 09-2388 Document: 00319606742 Page: 11 Date Filed: 05/13/2009
from bringing actions based on the same operative facts. The court
dismissed for forum non based on estoppel, but did not decide the anti-suit
motion. Davis Int’l, LLC v. New Start Group Corp., No. 04-1482, 2006 U.S.
Dist. LEXIS 13990 (D.Del. March 29, 2006).
2. Proceedings in this Court
Petitioners appealed the decision to dismiss the Removed Action and
Respondents cross-appealed the decision not to decide the anti-suit motion.
This Court affirmed the dismissal, but held that the district court was in error
in not deciding the injunction motion. Davis Int’l, LLC v. New Start Group
Corp., 488 F.3d 597 (3d’ Cir. 2007). Although this Court noted that courts
may issue anti-suit injunctions in certain circumstances, the only cited case
which did so addressed the protection of a federal court’s jurisdiction. Id. at
605.1 Instantly, there is no jurisdiction to protect because the federal court
has declined its jurisdiction based on forum non.
D. The Re-filed Motion
Upon remand, Respondents renewed their anti-suit motion on August
13,2007. Briefing was completed on October 3, 2007. See Exhibits E
(Motion); F (Opposition); G (Reply).
1 See Kan. Pub. Employees Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d
1063, 1070-71 (8th Cir. 1996) (granting injunction because specific RTC
removal statute 12 U.S.C. § 1441a( 1) required a federal forum for the entirety
of any case to which the RTC is a party).
5
Case: 09-2388 Document: 00319606742 Page: 12 Date Filed: 05/13/2009
*
I
E. The Cherney Decision
1. The Inadequacy of the Russian Forum in Cases Against
Deripaska
Subsequent to the completion of briefing, Petitioners uncovered
Cherney v. Deripaska, [2008] EWHC 1530, in which Chemoi (also spelled as
“Cherney”) brought claims against Deripaska for claims related to aluminum
assets at issue in the Base Metal matter. By order dated July 3, 2008, the
court denied Deripaska’s forum non motion to Russia. Cherney, Exhibit H.
I
The English court found that Russian courts are inadequate in cases against
Deripaska, a powerful oligarch because of the risks of (1) assassination, (2)
false criminal proceedings, and (3) corrupted court proceedings in Russia.
These are the precise reasons that Petitioners previously asserted that Russia
is an inadequate forum for this litigation,2 which Chemoi opposed in the New
b
York and Delaware district courts. Specifically, the English court found:
2 Risk of Harm: See e.g. Guidi v. Intercontinental Hotels Corp., 224 F.3d
142, 147 (2d Cir. 2000) (Egyptian foreign forum inadequate because of
generally dangerous conditions); Wiwa v. Royal Dutch Petroleum Co., 226
F.3d 88, 106 (2d Cir. 2000) (Nigerian foreign forum inadequate because of
risk of harm); HSBC USA, Inc. v. Prosegur Paraguay, S.A., 2004 U.S. Dist.
LEXIS 19750 (S.D. N.Y. 2004) (foreign forum inadequate because of danger
to plaintiffs agents and potential witnesses).
Improper Criminal Prosecution: See Cabiri v. Assasie-Gyimah, 921
F.Supp. 1189 (S.D. N.Y. 1996) (Ghana forum inadequate because of risk of
improper criminal prosecution).
6
Case: 09-2388 Document: 00319606742 Page: 13 Date Filed: 05/13/2009
• Assassination: “The risk of a successful assassination seems
to me likely to be greater in the place where the person or
persons who might wish to have him killed reside and where
the requisite personnel and materiel are likely to be more
readily available. This is particularly so if Mr Chemey is
engaged in a public trial … I do, however, consider that Mr
Chemey has a well founded fear for his safety and that he will
be more at risk in Russia than England.” Cherney ^199.
• False Arrest: “It seems to me that there is a significant
likelihood of Mr Chemey being prosecuted if he returns and a
real possibility that Mr Deripaska might use his influence, or
his ability to orchestrate feeling against Mr Chemey, to
encourage the authorities to take that course … There is
reason to suppose that Mr Deripaska or his advisers have
already conceived a plan to denigrate Mr Chemey in this
country (see paragraph 249 below) and in Israel (see
paragraph 153 above); and there appears to be far more scope
for such a plan and for a prosecution in Russia. Further
there is a distinct possibility that any charges would be
trumped up.” Cherney ^201.
• No Fair Trial: “The available evidence indicates that Mr
Chemey will not obtain a just and expeditious hearing in the
Russian arbitrazh courts and that there is a strong likelihood
that he will be arrested on false allegations.” Cherney, ^204.
There is “a significant risk of improper government
interference if Mr Chemey were to bring the present claims in
Russia, where they would be very high profile proceedings
indeed, such that substantial justice may not be done to him if
he is required to proceed there. I am not satisfied that, if he is
so required, justice will be done.” Cherney ffl[248, 264.
Partiality: See Radsoulzadeh y. Associated Press, 574 F.Supp. 854 (S.D.
N.Y. 1983) aff’d 767 F.2d 908 (1985 2d Cir.) (Iranian forum inadequate
because “plaintiffs are highly unlikely to obtain basic justice therein”); HSBC
USA, Inc. y. Prosegur Paraguay, S.A., 2004 U.S. Dist. LEXIS 19750 (S.D.
N.Y. 2004) (foreign forum inadequate because of corruption in judiciary).
&
fr
I
*
I
i
jx
|
I
t
.
Case: 09-2388 Document: 00319606742 Page: 14 Date Filed: 05/13/2009
2. The Bad Faith of Chernoi and Deripaska in Base Metal
In denying Deripaska’s forum non motion, the English court concluded
that Chernoi supported the forum non motions in the Base Metal case, not
because he believed Russia was an adequate forum, but because he knew the
Petitioners could not get a fair trial in Russia if Deripaska was a defendant.
The court found:
192. … both Mr Chemey and Mr Deripaska calculated that if the
actions were stayed the claims would never go ahead in Russia.
193. … in the Base Metal proceedings, in which Rusal is the first
defendant, Mr Chemey was on the same side as Mr Deripaska.
They were alleged to have been parties, together with Mr
Makhmoudov, to a massive racketeering scheme, involving
criminal acts including fraud, bribery of the local governor to the
tune of $ 850,000, violence, murder, attempted murder, and
threats to murder, in order to take over and monopolise the
Russian aluminium industry …
195 … I have little doubt that he and Mr Deripaska reckoned
(correctly) that the US plaintiffs would never go to trial in
Russia. Mr Chemey’s own evidence is that he assumed that that
is what Mr Deripaska thought and that the claimants would not
want a trial in Russia because they would have felt that they
would not get a fair trial there.
196. If he and Mr Deripaska obtained a forum conveniens
dismissal, and resisted the contention that the Russian forum was
unsuitable on the grounds, inter alia, of corruption, when they
knew that the Plaintiffs would not get a fair trial, the forum
conveniens motion was a cynical ploy and quite possibly an
abuse of the process of the District Court. Chemey Exhibit H,
W90-196.
I
*
I
r
*
f
Case: 09-2388 Document: 00319606742 Page: 15 Date Filed: 05/13/2009
3. The Links of Chernoi and Deripaska to Malevsky
Based on Chemey’s evidence, the English court found that there was a
joint venture between Deripaska, Chemey, instant defendant Iskander
Makmudov, Mr. Popov, and Andre Malevsky, on behalf of his brother, Anton
Malevsky, the co-head of the Izmailovo mafia. Mr. Popov was also associated
with organized crime. Chemey ^[65, 67, Exhibit H. Thus, Chemey’s own
evidence confirmed Petitioners’ allegations of the connection of Chemey,
Makmudov, and Deripaska to Malevsky, who threatened the lives of
Petitioners’ key witnesses and beneficial owners, Khaidarov and Joseph
Traum.
F. Petitioners’ Request for Supplemental Briefing Based
upon Cherney
Petitioners moved to file a supplemental brief in opposition to the anti
suit motion, attaching thereto a proposed brief and the Chemey decision. See
Motion to File Supplemental Brief, Exhibit I. Briefing was completed on
November 10, 2008; the motion remains undecided. See Exhibits J
(Opposition) and K (Reply). The proposed brief opposes the anti-suit motion
on new grounds based on Chemey, i.e. judicial estoppel, unclean hands,
collateral estoppel, and bad faith.
Case: 09-2388 Document: 00319606742 Page: 16 Date Filed: 05/13/2009
G. The Undue Delay In Decision
®
On February 2, 2009, in response to an inquiry from the Chancery
Court as to the status of the federal action, Petitioners wrote to the court
requesting information on its intent to move the case. Letter, Exhibit L. The
court did not respond. Now, almost three more months have elapsed with no
&
response or ruling.
H. Prejudice Caused By Delay
The passage of more than 19 months since the initial briefing of the
anti-suit injunction continues to place Petitioners’ case in jeopardy from
events which occurred in year 2001 and before for which there has been no
merits discovery for over eight years. There is a real and substantial risk that
evidence will be lost (or destroyed), witnesses will die or otherwise become
unavailable, and witnesses who were under the control of Respondents are no
longer under their control for the purposes of production of deposition. In
addition, memories of witnesses will continue to fade regarding events that
occurred years ago. In any case, justice delayed is justice denied.
I. The Backlog in the District of Delaware
In December 2006, a judicial vacancy resulted in Delaware. On
January 23, 2008, the cases assigned to the vacant judgeship were divided
among the active District Judges. Order, Exhibit M. Subsequently, on July
10
a
>
,
a
®
d
a
£
d
Case: 09-2388 Document: 00319606742 Page: 17 Date Filed: 05/13/2009
28, 2008 the Third Circuit designated and assigned 12 judges from the Eastern
District of Pennsylvania and District of New Jersey to hold court in the
District of Delaware because of delay. See Orders Exhibit N.
ARGUMENT
Petitioners need to satisfy only three conditions for the issuance
of a writ of mandamus:
1. No other adequate means to attain the relief desired;
2. The right to issuance of the writ is clear and indisputable; and,
3. The issuing court, in the exercise of its discretion is satisfied that
the writ is appropriate under the circumstances.
In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 379 (3rd Cir. 2005)
(quoting Cheney v. United States Dist. Court, 542 U.S. 367, 381, 159 L. Ed.
2d 459, 124 S. Ct. 2576 (2004)) (citations, internal quotations marks and
brackets omitted).
A. Petitioners Have No Other Means To Attain Relief
First, the court’s failure to exercise its jurisdiction and rule on the
motion violates its “virtually unflagging obligation of the federal courts to
exercise the jurisdiction given them.” Colo. River Water Conservation Dist.
&
v. United States, 424 U.S. 800, 817 (1976).
Second, the court’s failure to rule on the motion over an unreasonable
period of time usurps this court’s appellate jurisdiction because there is no
order or final judgment from which an appeal can be taken. See Roche v.
Case: 09-2388 Document: 00319606742 Page: 18 Date Filed: 05/13/2009
Evaporated Milk Ass ’n, 319 U.S. 21, 25 (1943) (circuit court jurisdiction is
“not confined to the issuance of writs in aid of a jurisdiction already acquired
by appeal but extends to those cases which are within its appellate jurisdiction
although no appeal has been perfected. Otherwise the appellate jurisdiction
could be defeated and the purpose of the statute authorizing the writ thwarted
by unauthorized action of the district court obstructing the appeal.”) (citations
omitted)
Thus, the writ is necessary “to compel [the district court] to exercise its
authority'”. In re Sharon Steel Corporation, 918 F.2d 434, 436 (3d Cir. 1990)
(citations omitted.). See De Beers Consolidated Mines, Ltd. v. United States,
325 U.S. 212, 217 (1945) (“[W]hen a court has no judicial power to do what it
purports to do — when its action is not mere error but usurpation of power —
the situation falls precisely within the allowable use of §[28 U.S.C. § 1651 ].”);
In re School Asbestos Litigation, 977 F.2d 764, 773 (3d Cir. 1992) (“The writ
is a safety valve (one of several safety valves, in fact) in the final-judgment
rule”) (quotation omitted). See also Madden v. Myers, 102 F.3d 74, 79 (3d
Cir. 1996) (appellate court may issue a writ of mandamus on the ground that
undue delay is tantamount to a failure to exercise jurisdiction.); McClellan v.
Young, 421 F.2d 690, 691 (6th Cir. 1970) (writ of mandamus issued directing
court to decide petition).
&
£
v
Case: 09-2388 Document: 00319606742 Page: 19 Date Filed: 05/13/2009
* –
®
d’
B. Petitioners Have A Clear And Undisputable Right To
Relief
Petitioners have a clear and undisputable right to relief because the anti
suit motion is barred as a matter of law by the Anti-Injunction Act, 28 U.S.C.
§2283, which provides:
A court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.
1. Respondents’ Motion Is Barred By The Anti-Injunction Act On
Its Face
“On its face the present Act is an absolute prohibition against enjoining
state court proceedings, unless the injunction falls within one of the three
specifically defined exceptions.” Atlantic Coast Line Railroad Co. v.
Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970). “A federal court
does not have inherent power to ignore the limitations of §2283 and to enjoin
state court proceedings merely because those proceedings interfere with a
protected federal right or invade an area preempted by federal law, even when
the interference is unmistakably clear … This conclusion is required because
t
Congress itself set forth the only exceptions to the statute.” Id. at 294. “[T]he
exceptions to the Anti-Injunction Act must be construed narrowly and doubts
as to the propriety of a federal injunction against a state court proceeding
0
S
0
Case: 09-2388 Document: 00319606742 Page: 20 Date Filed: 05/13/2009
should be resolved in favor of permitting the state court to proceed.” Lou v.
Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (internal citations omitted).
The Chancery Court action is pending, and, thus, falls within the plain
language of the statute. While Respondents may argue that the Act should
only apply to litigation pending at the time of the request for injunctive relief,
see Barancik v. Investors Funding Corp, of N.Y., 489 F.2d 933 (7th Cir.
1973), such an “interpretation runs afoul of the language of the Act and of the
clear authority which insists the language be read literally … The Supreme
Court has repeatedly ruled that the ban is absolute and the language is to be
taken literally.” Roth v. Bank of the Commonwealth, 583 F.2d 527, 533 (6th
Cir. 1978), cert, dismissed, 442 U.S. 925 (1979) (rejecting Barancik and
vacating injunction); see also Standard Microsystems Corp. v. Texas
f
Instruments Inc., 916 F.2d 58, 62 (2d Cir. 1990) (“In passing the Anti
Injunction Act, Congress meant to avoid friction in the relationship between
federal courts and state courts. The Barancik rule places the power in the
hands of the [movant] unilaterally to nullify the effectiveness of an Act of
Congress and to create exactly the kind of federal-state conflict that Congress
sought to prevent”).
–
In Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1980), this Court
*
carefully focused on whether the state court proceedings were pending when
Case: 09-2388 Document: 00319606742 Page: 21 Date Filed: 05/13/2009
the district court acted, not when the motion was filed, indicating agreement
®
with Roth. In holding that the court incorrectly denied the injunction motion,
this Court held the “Since there were no state proceedings to be enjoined at
the time the district court acted, the anti-injunction statute does not foreclose
relief [on appeal].” Id. at 187 (emphasis added).
Alternatively, even if this Court should adopt the Barancik rule, the
language of the “necessary in aid of jurisdiction” and “re-litigation”
provisions of the Anti-Injunction Act and All Writs Act are identical and
construed similarly. Thus, to the extent an injunction is prohibited under the
3
Anti-Injunction Act, it does not fall within the powers provided by the All
Writs Act.
2. No Statutory Exception Applies Under the Anti-Injunction Act
Respondents may argue that 28 U.S.C. § 1446(d), which provides that
after a removal notice has been filed, “the State court shall proceed no further
unless and until the case is remanded”, somehow applies to the Chancery
Court case. It does not because the current Chancery Court Action was filed
3See In re Diet Drugs Phentermine/Fenfluramine/ Dexfenfluramine) Prods.
Liab. Litig., 369 F.3d 293, 305 (3d Cir. 2004) (“The two statutes act in
concert.. .The authority the All Writs Act imparts to district courts is limited,
however, by the Anti-Injunction Act, which prohibits injunctions “to stay
proceedings in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments”).
15
®
®
£
&
9
®
&
Case: 09-2388 Document: 00319606742 Page: 22 Date Filed: 05/13/2009
separately from the Removed Action. The law could not be clearer that
Petitioners were permitted to proceed simultaneously with their non-federal
claims in state court and federal claims in federal court. See, e.g., Marks v.
Stinson, 19 F.3d 873, 885 (3d Cir. 1994); (“A federal plaintiff may pursue
parallel actions in the state and federal courts”); Gwynedd Properties, Inc. v.
Lower Gwynedd Township, 970 F.2d 1195, 1203 (3d Cir. 1992) (“the
pendency of an action in the state court is no bar to proceedings concerning
the same subject matter in the Federal court having jurisdiction”).
Petitioners had every right to delete the non-federal claims by amending
their Complaint and filing them in state court; in fact, dual filings is exactly
what occurred in Atlantic Coast, where the plaintiff filed federal claims in
federal court and then filed state claims in state court. As the Supreme Court
B
observed there, “In short, [when] the state and federal courts [have]
concurrent jurisdiction … neither court [is] free to prevent either party from
simultaneously pursuing claims in both courts … Therefore the state court’s
assumption of jurisdiction over the state law claims … did not hinder the
federal court’s jurisdiction so as to make an injunction necessary to that
t
jurisdiction.” Atlantic Coast, 398 U.S. at 296.
In similar circumstances, in Lou v. Beltzberg, 834 F.2d 730 (9th Cir.
1987), the plaintiffs filed claims under RICO and state law which were
®
g?
Case: 09-2388 Document: 00319606742 Page: 23 Date Filed: 05/13/2009
removed. The court enjoined plaintiffs from prosecuting in state court a
second suit which asserted only state law claims, purportedly under 28 U.S.C.
§1446. The Ninth Circuit found nothing fraudulent or subversive about filing
a second suit based solely on state claims and vacated the injunction. Such is
the instant case.
3. The “Necessary In Aid of Its Jurisdiction” Exception Does Not
Apply Under the Anti-Injunction Act or All Writs Act
The Anti-Injunction Act and All Writs Act contain identical language
permitting a federal court to enjoin state court proceedings when “necessary in
aid of its jurisdiction.” Under this language, “it is not enough that the
requested injunction is related to that jurisdiction, but it must be ‘necessarily
in aid of that jurisdiction … we conclude that it implies something similar to
the concept of injunctions to ‘protect’ or ‘effectuate’ judgments.” Atlantic
Coast, 398 U.S. at 295. Injunctive relief is not permitted unless it is
“necessary to prevent a state court from so interfering with a federal court’s
consideration or disposition of a case as to seriously impair the federal court’s
flexibility and authority to decide that case.” Id. “The mere existence of a
►
parallel action in state court does not rise to the level of interference with the
federal jurisdiction necessary to permit injunctive relief under the ‘necessary
in aid of exception.” Lou v. Beltzberg, 834 F.2d 730, 740 (9th Cir. 1987). In
the instant case, there is no conceivable manner in which the Chancery Court
Case: 09-2388 Document: 00319606742 Page: 24 Date Filed: 05/13/2009
action falls within the “necessary in aid” exception because the federal courts
have chosen not to exercise their jurisdiction.
4. The “Re-litigation” Exception Does Not Apply Under the Anti
Injunction Act or All Writs Act
The Anti-Injunction Act and All Writs Act contain an identical “re
litigation” exception permitting a federal court to enjoin state court
proceedings in order to effectuate its prior judgment. In the controlling case
of Exxon Corp. v. Chick Kam Choo, 486 U.S. 140, 149 (1988), in language
discussing the “re-litigation exception” which applies word for word to the
instant case, the Court reversed an injunction against the re-filing of non-
federal claims in state court, holding:
the only issue decided by the District Court was that petitioner’s
claims should be dismissed under the federal forum non
conveniens doctrine. Federal forum non conveniens principles
simply cannot determine whether Texas [Delaware] courts,
which operate under a broad ‘open-courts’ mandate, would
consider themselves an appropriate forum for petitioners’ lawsuit
… Thus, whether the Texas [Delaware] state courts are an
appropriate forum for petitioners’ … claims has not yet been
litigated, and an injunction to foreclose consideration of that
issue is not within the relitigation exception.
Id. at 148-149 (bracketed material added),
Following Chick Kam Choo, courts uniformly hold that federal
dismissal for forum non cannot serve as the basis for enjoining the filing of
claims in state court. E.g., Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d
•
i
i
ft
*
d
d
Case: 09-2388 Document: 00319606742 Page: 25 Date Filed: 05/13/2009
665, 679 (5th Cir. 2003) (vacating injunction, holding that while a forum non
dismissal by a federal court “may bar reconsideration of the claims in another
Texas federal court, it cannot forever bar the controversy from all American
courts. To conclude otherwise would prevent states from deciding the
openness of their courts”) (footnote omitted); Baris v. Sulpico Lines, Inc., 74
F.3d 567, 573 (5th Cir. 1996) (affirming refusal to issue an injunction,
holding: “Under Chick Kam Choo, it is Louisiana’s prerogative to chose not to
recognize the doctrine of f.n.c. in its own courts. It would be improper for this
court to preclude plaintiffs from pursuing their claims in Louisiana state court
solely based upon a prior federal court dismissal on f.n.c. grounds”).
Instantly, the Chancery Court will apply a significantly different forum
non analysis than federal courts. See Mar-land Industrial Contractors, Inc. v.
i
Caribbean Petroleum Refining, LP, 777 A.2d 774, 778 (Del. 2001) (“[O]nly
in a rare case will a complaint filed in Delaware be dismissed on the grounds
offorum non conveniens. To succeed, the defendant must establish that
litigating in Delaware would impose upon it an overwhelming hardship.”)
(internal citations and quotations omitted). Put simply, under governing
principles of federalism, it is up to the state court, not the federal courts, to
make its own decision on forum non. Ret. Sys. v. J.P. Morgan Chase & Co.,
386 F.3d 419, 429 (2d Cir. 2004) (overturning injunction and holding that
19
*
*
0
®
d
d
I
*
»
Case: 09-2388 Document: 00319606742 Page: 26 Date Filed: 05/13/2009
“[t]here is no reason why a state court cannot or should not determine issues
of fact and state law relevant thereto as they come up in the state litigation.”)
(internal citations and quotations omitted.)
5. The Anti-Suit Motion Should Be Denied Based On Cherney
First, judicial estoppel “seeks to prevent a litigant from asserting a
position inconsistent with one that she has previously asserted in the same or
in a previous proceeding.” Ryan Operations G.P. v. Santiam-Midwest Lumber
Co., 81 F.3d 355, 358 (3d Cir. 1996). “The basic principle … is that absent
any good explanation, a party should not be allowed to gain an advantage by
litigation on one theory, and then seek an inconsistent advantage by pursuing
an incompatible theory.” 18 Wright, Miller & Cooper, Federal Practice
and Procedure § 4477, at 782 (1981).
Second, under collateral estoppel, “once a judicial system has afforded
the opportunity for full and final litigation of issues … permitting re-litigation
of the same issues in another court is intolerable.” Davis Int’l, LLC v. New
Start Group Corp., 2006 U.S. Dist. LEXIS 13990, *12 (D.Del. March 29,
2006) (quoting Pastewka v. Texico, Lnc., 565 F.2d 851, 854 (3d Cir. 1977).
Third, as explained in the seminal Piper Aircraft case, forum non is an
“equitable doctrine” designed to achieve the “interests of justice.” Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 249, 254 (1981). It is black-letter law
20
Case: 09-2388 Document: 00319606742 Page: 27 Date Filed: 05/13/2009
that a party ‘“who comes into equity must come with clean hands.’ This
maxim is far more than a mere banality. It is a self-imposed ordinance that
closes the doors of a court of equity to one tainted with inequitableness or bad
faith.” Precision Inst. Man. Co. v. Aut. Maintenance Mach Co., 324 U.S. 806,
814 (1945). In applying the doctrine “‘courts are concerned primarily with
their own integrity’ and with avoiding becoming ‘the abettor of iniquity.’”
Northeast Women’s Center, Inc. v. McMonagle, 868 F.2d 1342, 1354 (3d Cir.
1989).
*
As argued in the proposed supplemental brief, these three doctrines all
bar granting of the anti-suit motion, i.e. (1) Chemoi prevailed on his argument
that Russia is an inadequate forum in litigation involving Deripaska in
England and is thus judicially estopped from arguing to the contrary here; (2)
>
Deripaska lost his argument in England that Russia is an adequate forum and
is collaterally estopped from arguing to the contrary here; and (3) Chemoi and
Deripaska act with unclean hands by seeking an anti-suit injunction requiring
Petitioners to litigate in a Russian forum, which they know to be inadequate
because of the risk of assassination, false arrest, and corrupted proceedings.
Unfortunately, because the district court has not ruled on Petitioners’
simple motion for permission to file the supplemental brief for six months,
I
Respondents have not briefed these issues. In the interests of justice, this
®
g
*
Case: 09-2388 Document: 00319606742 Page: 28 Date Filed: 05/13/2009
Court could order briefing on these matters and decide these solely legal
issues.
C. The Writ Is Appropriate Under The Circumstances
Due to the vacant judgeship in Delaware and reassignment of the
workload to the remaining judges, Judge Sleet, who is also the chief judge,
appears overburdened in light of his failure to rule on the motion for over 19
months, the motion for supplemental briefing in over six months, respond to
Petitioners’ letter, or schedule oral argument. Nevertheless, a congested court
docket cannot justify the continued failure to rule and the issuance of the writ
is appropriate. See Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir. 1978) (busy
■
court docket cannot justify fourteen-month delay in processing claim from
date of remand). Cf. La Buy v. Howes Leather Co., 352 U.S. 249, 259, 1 L.
i
Ed. 2d 290, 77 S. Ct. 309 (1957) (congestion of court docket insufficient
ground to justify reference to master under Fed. R. Civ. P. 53(b)). See,
Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990) (granting a writ of
mandamus after a fourteen-month delay by the district court). Here,
Petitioners have suffered real harm because the merits of the claims have not
I
be heard for over eight years and all merits discovery has been stayed.
22
Case: 09-2388 Document: 00319606742 Page: 29 Date Filed: 05/13/2009
First, because the matter at issues can be decided as a matter of law, it
would be in the interests of justice for this Court to do so and compel the
district court to deny the motion.
Second, in the alternative, Petitioners request the district court be
ordered to decide the motion within 60 days as “[t]here can be no doubt that,
where a district court persistently and without reason refuses to adjudicate a
case properly before it, the court of appeals may issue the writ ’in order that
[it] may exercise the jurisdiction of review given by law.'” Sharon Steel citing
Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661-62, 57 L. Ed. 2d 504, 98 S.
Ct. 2552 (1978) quoting Insurance Co. v. Comstock, 83 U.S. (16 Wall.) 258,
270, 21 L. Ed. 493 (1873).
Third, in the alternative, the case should be reassigned to a judge from
the Eastern District of Pennsylvania or District of New Jersey pursuant to this
Court’s July 28, 2008 designation orders. Johnson v. Rogers, 917 F.2d 1283,
1285 (10th Cir. 1990) (“[i]t may be that the district court will need to seek
additional resources or reallocate its existing resources to enable it more
promptly to resolve the large number of petitions for writ of habeas corpus
–
pending on its docket”); Thermtron Products, Inc. v. Hermans dorfer, 423 U.S.
336, 344 (1976) (”[I]t is indeed unfortunate if the judicial manpower provided
9
*
d
i
*
Case: 09-2388 Document: 00319606742 Page: 30 Date Filed: 05/13/2009
by Congress in any district is insufficient to try with reasonable promptness
the cases properly filed in or removed to that court”).
CONCLUSION
For the foregoing reasons, this Court should compel the district court to
deny the anti-suit motion, or alternatively, compel the district court to decide
the motion within 60 days or reassign the matter to a different judge as
designated from the District of New Jersey or Eastern District of
Pennsylvania.
Dated:
I
d
®
d
_
Bruce S. Marks
Thomas Sullivan
Marks & Sokolov, LLC
1835 Market Street, 28th Floor
Philadelphia, Pennsylvania 19103
215-569-8901
Attorneys for Petitioners
24
Case: 09-2388 Document: 00319606742 Page: 31 Date Filed: 05/13/2009
Corporate Disclosure Statement
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Petitioner Davis International, LLC states that no publicly held corporation
owns 10% or more of its stock.
d
*
*
I
Case: 09-2388 Document: 00319606742 Page: 32 Date Filed: 05/13/2009
Corporate Disclosure Statement
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Petitioner Holdex, LLC states that no publicly held corporation owns 10% or
more of its stock.
*
*
I
i
Case: 09-2388 Document: 00319606742 Page: 33 Date Filed: 05/13/2009
Corporate Disclosure Statement
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Petitioner Foston Management, Ltd. states that no publicly held corporation
owns 10% or more of its stock.
*
I
I
Case: 09-2388 Document: 00319606742 Page: 34 Date Filed: 05/13/2009
Corporate Disclosure Statement
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Petitioner Omni Trusthouse, Ltd. states that no publicly held corporation
owns 10% or more of its stock.
3
d
d
d
d
d
Case: 09-2388 Document: 00319606742 Page: 35 Date Filed: 05/13/2009
CERTIFICATIONS
Bar Membership
I, Thomas Sullivan, hereby certify that I am a member in good standing of
the bar of the United States Court of Appeals for the Third Circuit.
Word Count
I, Thomas Sullivan, hereby certify that this Petition complies with the type
volume limitation of Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure
because it contains 24 pages, excluding those parts exempted by Rule
32(a)(7)(B)(iii).
This brief further complies with the typeface requirements of Rule 32(a)(5)
and the type style requirements of Rule 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word in 14-point Times New
Roman.
Dated: May 12, 2009
By: /s/
Thomas Sullivan
Marks & Sokolov, LLC
1835 Market Street, 28th Floor
Philadelphia, PA 19103
Attorneys for Petitioners
d
i
I
Case: 09-2388 Document: 00319606742 Page: 36 Date Filed: 05/13/2009
CERTIFICATE OF SERVICE
I, Maria Temkin, Esquire, hereby certify that on the date below, I have
caused four (4) true and correct copies of the foregoing Petition for Mandamus
along with supporting exhibits to be hand delivered to the Clerk’s Office of the
Court of Appeals for the Third Circuit and served one (1) true and correct copy of
the foregoing Petition with exhibits by regular U.S. postal service mail to the
following:
The Honorable Gregory M. Sleet
United States District Court for the District of Delaware
844 King Street
Wilmington, DE 19801
Attorneys for Defendants Arnold
Kislin:
Charles M. Oberly, III
Karen V. Sullivan
WolfBlock LLP
1100 Market Street, Suite 1001
Wilmington, DE 19801
(302) 777-6928
Lisa C. Cohen
Schindler Cohen & Hochman LLP
100 Wall Street
15th Floor
New York, NY 10005
(212) 277-6300
Lawrence S. Goldman
Elizabeth Johnson
The Law Offices of Lawrence S.
Goldman
500 Fifth Ave., 29th Floor
New York, NY 10110-2900
(212) 997-7499
Case: 09-2388 Document: 00319606742 Page: 37 Date Filed: 05/13/2009
Attorneys for Defendants New Start
Group Corp, and Venitom Group:
Charles M. Oberly, III
Karen V. Sullivan
WolfBlock LLP
1100 Market Street, Suite 1001
Wilmington, DE 19801
(302) 777-6928
Richard J. Schaeffer
Peter J. Venaglia
Laura D. Sullivan
Dombush, Schaeffer, Strongin &
Weinstein, LLP
747 Third Avenue, 11th Floor
New York, NY 10017
(212) 759-3300
Attorneys for Defendant Oleg
Deripaska:
Collins J. Seitz, Jr.
Kevin F. Brady
Connolly Bove Lodge & Hutz LLP
1007 North Orange Street
P.O. Box 2207
Wilmington, DE 19899
(302) 658-9141
Attorneys for Defendant Evraz
Holding:
William M. Lafferty
Morris, Nichols, Arsht & Tunnell
Chase Manhattan Centre, 18th Floor
1201 North Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
(302) 575-7341
Rodney F. Page
Michael G. Biggers
Bryan Cave LLP
700 13th Street, N.W.
Washington, D.C. 20005-3960
(202) 508-6002
David H. Herrington
Vitali Rosenfeld
Cleary Gottlieb Steen & Hamilton
LLP
One Liberty Plaza
New York, NY 10006
(212) 225-2266
Attorneys for Defendant MDM Bank:
Richard LG. Jones, Jr.
Ashby & Geddes
Joel B. Kleinman
Steven J. Roman
a
a
a
a
9
a
a
a
a
a
Case: 09-2388 Document: 00319606742 Page: 38 Date Filed: 05/13/2009
222 Delaware Avenue, 17 th Floor
P.O. Box 1150
Wilmington, DE 19899
(302) 654-1888
David H. Greenberg
Dickstein Shapiro Morin &
Oshinsky LLP
2101 L Street NW
Washington, DC 20037-1526
(202) 785-9700
Attorneys for Defendant Ural-Gomo
Metallurgical Company:
Charles M. Oberly, III
Karen V. Sullivan
WolfBlock LLP
1100 Market Street, Suite 1001
Wilmington, DE 19801
(302)777-6928
William H. Devaney
Heard & O’Toole LLP
405 Lexington Ave, Floor 62
New York, NY 10174
(212) 307-5500
Attorneys for Defendant Iskander
Makmudov:
Charles M. Oberly, III
Karen V. Sullivan
WolfBlock LLP
1100 Market Street, Suite 1001
Wilmington, DE 19801
(302) 777-6928
Attorneys for Defendant Mikhail
Chemoi:
Charles M. Oberly, III
Karen V. Sullivan
WolfBlock LLP
1100 Market Street, Suite 1001
Wilmington, DE 19801
(302) 777-6928
William H. Devaney
Heard & O’Toole LLP
405 Lexington Ave, Floor 62
New York, NY 10174
(212)307-5500
Brian Maas
Cameron A. Myler
Frankfurt Kumit Klein & Selz PC
488 Madison Avenue, 9th Floor
New York, NY 10022
(212) 980-0120
s
d
i
I
i
Case: 09-2388 Document: 00319606742 Page: 39 Date Filed: 05/13/2009
d
®
Attorneys for Defendant Mikhail
Nekrich:
Charles M. Oberly, III
Karen V. Sullivan
d WolfBlockLLP
1100 Market Street, Suite 1001
Wilmington, DE 19801
(302) 777-6928
Paul R. Grand
Edward M. Spiro
Morvillo, Abramowitz, Grand,
lason & Silberberg, P.C.
565 Fifth Avenue
New York, NY 10017
(212) 880-9510
Dated: May 12, 2009
By: Zs/ A
Maria Temkin
Marks & Sokolov, LLC
1835 Market Street, 28th Floor
Philadelphia, PA 19103
Attorneys for Petitioner
d
*
I
Support TBCA if you think this document is useful : [give_form id="2685"]Support TBCA if you think this document is useful. Donations are processed by the publisher DRJI: [give_form id="3338"]