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granting a motion to dismiss on the ground of forum non conveniens in part because "almost all of the relevant evidence [was] located in Turkey"
Summary of this case from Aenergy, S.A. v. Republic of AngolaOpinion
20cv02648 (DLC)
02-16-2021
APPEARANCES For plaintiffs: Robert L. Weigel Jason W. Myatt Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 Chantale Fiebig Matthew D. McGill Noah P. Sullivan Suria M. Bahadue Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 For defendant: John S. Williams Eden Schiffmann Akhil K. Gola Williams & Connolly LLP 725 Twelfth Street, NW Washington, DC 20005 Mehmet Baysan Omer Er Michelman & Robinson, LLP 800 Third Avenue, 24th Floor New York, NY 10022
OPINION AND ORDER APPEARANCES For plaintiffs:
Robert L. Weigel
Jason W. Myatt
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166 Chantale Fiebig
Matthew D. McGill
Noah P. Sullivan
Suria M. Bahadue
Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W.
Washington, DC 20036 For defendant:
John S. Williams
Eden Schiffmann
Akhil K. Gola
Williams & Connolly LLP
725 Twelfth Street, NW
Washington, DC 20005 Mehmet Baysan
Omer Er
Michelman & Robinson, LLP
800 Third Avenue, 24th Floor
New York, NY 10022 DENISE COTE, District Judge:
The plaintiffs in this case, judgment creditors of Iran, bring suit against defendant Turkiye Halk Bankasi A.S. ("Halkbank"), a Turkish bank, seeking turnover of funds that allegedly belonged to Iranian state-owned enterprises and were fraudulently conveyed by Halkbank in a scheme to evade U.S. sanctions. Halkbank has moved to dismiss this action. For the reasons described in this Opinion, plaintiffs' claims are conditionally dismissed under the doctrine of forum non conveniens.
Background
The following facts are taken from the Second Amended Complaint ("SAC"), documents integral to the complaint or incorporated therein, and where appropriate, the parties' submissions on Halkbank's motion to dismiss. I. The Parties
The 876 plaintiffs in this action are judgment creditors of Iran. Each plaintiff is either a direct victim of an overseas terrorist attack committed by a group linked to Iran or a surviving family member of a deceased victim of an overseas terrorist attack committed by a group linked to Iran. Most of the plaintiffs do not reside in the United States: of the 670 plaintiffs for whom residency information is known, 468 reside in a foreign country. Of the 202 plaintiffs known to reside in the United States, only nine are known to reside in New York.
The attacks at issue occurred in Lebanon, Tanzania, Kenya, Israel, a Jewish settlement in the Gaza Strip, and Iraq.
Each plaintiff sued Iran in the United States District Court for the District of Columbia pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 et seq., seeking damages stemming from these attacks. In each instance, Iran defaulted, and in each instance, the district court awarded a default judgment to the plaintiffs. The awards consist of both compensatory and punitive damages. Collectively, the plaintiffs in this action are owed over $10 billion by Iran. Iran has not satisfied any of the judgments.
Defendant Halkbank is a Turkish financial institution, organized under Turkish law and headquartered in Turkey. Halkbank operates almost entirely in Turkey: only a tiny percentage of its branches are located outside of Turkey, and Halkbank has no branches or employees in the United States. A significant majority of the shares in Halkbank -- greater than 75 percent of the outstanding shares -- are owned by the Turkey Wealth Fund, while the remaining shares are publicly traded. The Turkey Wealth Fund, in turn, is controlled by the Turkish government. Halkbank is subject to other mechanisms of control by the Turkish government: the Halkbank Board of Directors is elected by the Turkish General Assembly, and the Turkish Ministry of Treasury and Finance supervises Halkbank's operations. II. Halkbank's Relationship to Iran
Between 2011 and 2013, the United States imposed sanctions on Iran's overseas financial transactions related to its proceeds from its trade in oil and precious metals. In 2011, Congress enacted a law that prohibited, in most instances, foreign financial institutions from facilitating petroleum transactions with Iran. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, §§ 1245(d)(1)-(4), 125 Stat. 1298, 1647-49 (Dec. 31, 2011). Then-President Obama issued an Executive Order implementing the sanctions statute and authorizing the Secretary of the Treasury to impose restrictions on foreign financial institutions that engaged in significant financial transactions with the National Iranian Oil Company ("NIOC") or the Central Bank of Iran. Exec. Order No. 13622, 77 Fed. Reg. 45,897, 45,899 (Aug. 2, 2012). Similar restrictions were also imposed on precious metal transactions with Iran. 22 U.S.C. § 8804(a)(1)(A). Foreign financial institutions that violated these restrictions could be prohibited from maintaining correspondent accounts in the United States. 22 U.S.C. § 8804(c).
After the sanctions were implemented, plaintiffs allege that the government of Iran conspired with Halkbank and third parties to evade U.S. sanctions. According to plaintiffs, NIOC sold oil to Turkish purchasers, and the proceeds were deposited at Halkbank. At NIOC's direction, the money would be transferred within Halkbank to Halkbank correspondent accounts belonging to an Iranian bank. The Iranian bank would then order the money transferred from the Iranian bank's Halkbank account to a Halkbank account belonging to a shell company. After the money had been transferred to the shell company, a confederate would use the shell company's funds to purchase gold in Turkey, export the gold to Dubai, sell the gold in Dubai, and deposit the proceeds in Iranian accounts at banks based in Dubai. Iran could then use the funds in the Dubai accounts to make international payments. According to the plaintiffs, over $900 million in funds were derived from these fraudulent transactions and directed through correspondent accounts at U.S. financial institutions between December 2012 and October 2013. At least some of these funds passed through accounts at banks based in New York. Even after stricter U.S. sanctions were implemented in February 2013, Iran continued to make fraudulent transactions via Halkbank, but, with Halkbank's assistance, falsely represented that the transactions involved the purchase of food, as food purchases were not covered by U.S. sanctions. Halkbank retained hundreds of millions of dollars in payment for its role in the scheme.
In 2016, Reza Zarrab, a participant in the scheme, was arrested upon attempting to enter the United States and charged with several crimes in the United States District Court for the Southern District of New York, including conspiracy to defraud the United States, conspiracy to violate the International Emergency Economic Powers Act, conspiracy to commit bank fraud, and conspiracy to commit money laundering. United States v. Zarrab et al., No. 15 Cr. 867(RMB). In 2017, Mehmet Atilla, deputy general manager of Halkbank, was arrested and charged with similar crimes. Zarrab pleaded guilty, while Atilla was convicted by a jury after trial in 2018 and was sentenced to 32 months in prison. Halkbank general manager Suleyman Aslan and another Halkbank employee, Levent Balkan, were also indicted and remain fugitives.
In 2019, Halkbank itself was indicted in the Southern District of New York. The district court has denied Halkbank's motion to dismiss the indictment on the grounds of foreign sovereign immunity. The denial of the motion to dismiss is on appeal. United States v. Turkiye Halk Bankasi A.S., No. 20-3499 (2d Cir.). III. Procedural History
On March 27, 2020, the plaintiffs filed their complaint under seal. On July 1, the plaintiffs filed an ex parte motion for a temporary restraining order and for an order of attachment pursuant to Rule 64, Fed. R. Civ. P. and N.Y. C.P.L.R. § 6210. This Court granted the temporary restraining order later that day, ordered the plaintiffs to post a bond of $100,000 pursuant to Rule 65, Fed R. Civ. P., and ordered the plaintiffs to serve Halkbank's criminal defense counsel and registered process agent with the relevant filings. The case was unsealed on July 16, and the plaintiffs filed an amended complaint. With permission, the plaintiffs filed the SAC on August 14.
The SAC asserts four causes of action. First, it brings a claim for rescission and turnover of fraudulent conveyances, pursuant to N.Y. Debt. & Cred. Law § 273-a. Second, it brings a claim for rescission and turnover of fraudulent conveyances made with actual intent, pursuant to N.Y. Debt. & Cred. Law § 276. Third, it brings a claim for turnover under N.Y. C.P.L.R. § 5225. Finally, it seeks turnover pursuant to the Terrorism Risk Insurance Act, § 201(A), 28 U.S.C. § 1610(f)(1)(A).
On April 4, 2020, after the filing of the initial complaint in this action, a new version of New York's fraudulent conveyance statute took effect. Uniform Voidable Transactions Act, 2019 Sess. Law News of N.Y. Ch. 580 (A. 5622)(McKinney's). Since the new statute "shall not apply to a transfer made" before its effective date, id. at § 7, references to the New York fraudulent conveyance statute in this Opinion are to the version that was in effect prior to April 4, 2020.
On September 10, this Court denied the plaintiffs' motion for attachment and vacated the temporary restraining order it had issued in July. On September 25, Halkbank moved to dismiss the SAC. The motion became fully submitted on December 16, 2020.
Discussion
Halkbank has moved to dismiss on several grounds. Halkbank argues that it is entitled to sovereign immunity as an agency or instrumentality of Turkey under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1604, requiring dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P.; that this Court lacks personal jurisdiction over Halkbank, requiring dismissal pursuant to Rule 12(b)(2), Fed. R. Civ. P.; that this Court should dismiss pursuant to the doctrine of forum non conveniens; and that the Court is obligated to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P.
Three of these arguments present threshold issues of jurisdiction. "A federal court has leeway to choose among threshold grounds for denying audience to a case on the merits." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (citation omitted). Forum non conveniens is one such threshold ground. As such, a district court "may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant." Id. at 432. For the reasons discussed below, this action is dismissed based on the doctrine of forum non conveniens.
Halkbank argues that this case should be litigated in Turkey. The Second Circuit has set forth a three-part test for evaluating motions to dismiss on the basis of forum non conveniens. The first step requires a court to "determine[] the degree of deference properly accorded the plaintiff's choice of forum." Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005). The second part of the analysis involves "consider[ing] whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute." Id. "Finally, at step three, a court balances the private and public interests implicated in the choice of forum." Id. District courts have "broad discretion" in evaluating and weighing these factors. Iragorri v. United Technologies Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc) (citation omitted). Here, these factors weigh in favor of dismissing the complaint on the grounds of forum non conveniens. I. Deference to the Plaintiffs' Choice of Forum
"[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 265-66 (1981). But the strength of that presumption can "var[y] with the circumstances." Iragorri, 274 F.2d at 71. The Second Circuit has instructed that the strength of the presumption in favor of the plaintiff's choice of forum "moves 'on a sliding scale' depending on the degree of convenience reflected by the choice in a given case." Norex, 416 F.3d at 154 (quoting Iragorri, 274 F.3d at 71). Courts are instructed to give greater deference to the plaintiff's choice when "it appears that . . . [the] choice of forum has been dictated by reasons that the law recognizes as valid," such as genuine considerations of convenience and "the plaintiff's or the lawsuit's bona fide connection to the United States." Iragorri, 274 F.3d at 71-72.
The deference analysis ultimately depends on "the totality of circumstances supporting a plaintiff's choice of forum," Norex, 416 F.3d 154, but the Second Circuit has set forth factors to guide a district court's determination of the appropriate level of deference. A district court should consider "the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense." Iragorri, 274 F.3d at 72. By contrast, a court should give little deference when the plaintiff's choice of forum is motivated by "attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum." Id.
Here, the plaintiffs' choice of forum is entitled to minimal deference. Most of the plaintiffs in this action are foreign. There is "little reason to assume that [a U.S. forum] is convenient for a foreign plaintiff." Iragorri, 274 F.3d at 71. While some of the plaintiffs are U.S. residents, and nine reside in New York state, the plaintiffs' choice of forum in cases where the U.S. resident plaintiffs are significantly outnumbered by foreign plaintiffs is entitled to less deference. Additionally, the underlying facts in this litigation involve terrorist attacks in foreign countries and an alleged fraudulent scheme orchestrated primarily in Turkey. The series of judgments were entered in the District of Columbia. In sum, there is little, if any, connection between this action and this forum. This lack of connection between the plaintiffs and the subject matter of the litigation on the one hand, and the forum on the other, weighs against deferring to plaintiffs' choice of forum.
Considering the remaining Iragorri factors, it appears that almost all of the relevant evidence is located in Turkey. Much of the relevant documentary evidence is in the custody of Halkbank, and the documents are stored in Turkey and written in Turkish. Similarly, many of the potentially relevant witnesses are Halkbank employees, and those employees are in Turkey. Those witnesses are outside the subpoena power of this Court. The difficulty of conducting discovery in this litigation if it continues in the United States weighs against deference to the plaintiffs' choice. Further, Iragorri instructs courts to consider the amenability of the defendant to suit in the forum district. It is unclear if Halkbank is even amenable to suit in the United States, as it has contested jurisdiction in both this case and the criminal case.
The plaintiffs stress that the Halkbank scheme permitted the funds to move through New York financial institutions without seizure either by the U.S. Government or by the plaintiffs as judgment creditors. They emphasize that Halkbank representatives repeatedly lied to U.S. bank and government officials to effect transfers of funds through New York. Balancing all of the relevant factors, the plaintiffs' choice of forum is not entitled to substantial deference, but it is entitled to some, albeit minimal, deference. II. Turkey as an Adequate Alternative Forum
"To secure dismissal of an action on grounds of forum non conveniens, a movant must demonstrate the availability of an adequate alternative forum." Norex, 416 F.3d 157. The parties dispute whether a Turkish court can provide an adequate alternative forum for this dispute.
"A forum in which defendants are amenable to service of process and which permits litigation of the dispute is generally adequate." Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009). The test is satisfied if there is some available means of litigating the dispute in the alternative forum. "[T]he availability of an adequate alternative forum does not depend on the existence of the identical cause of action in the other forum, nor on identical remedies." Norex, 416 F.3d 158 (citation omitted).
The plaintiffs do not dispute that Halkbank is amenable to service of process in Turkey. Its Chief Legal Advisor has declared that Halkbank will accept service in Turkey and will accept an appropriate Turkish court's exercise of personal jurisdiction. "An agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy the alternative forum requirement." Aguinda v. Texaco, Inc., 303 F.3d 470, 477 (2d Cir. 2002) (citation omitted).
The plaintiffs primarily argue that they cannot obtain relief in Turkey because Turkish courts will not recognize their U.S. default judgments on the grounds that those judgments award punitive damages against Iran (a foreign sovereign) stemming from conduct occurring in a third country. Halkbank disputes this assertion, and the parties have offered competing expert declarations on the amenability of the Turkish courts to plaintiffs' claims.
The parties' declarations regarding Turkish law are properly considered upon a motion to dismiss. The issue of whether plaintiffs can secure relief in a Turkish court presents questions of foreign law, and a district court may determine questions of foreign law by "consider[ing] any relevant material or source." Fed R. Civ. P. 44.1. In doing so, a court may weigh the relative "persuasive force of the opinions" expressed by competing experts. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998).
Halkbank and its experts have persuasively demonstrated several means by which the plaintiffs may recover from Halkbank under Turkish law for the conduct alleged in the complaint. These Turkish causes of action are not contingent on the recognition of the plaintiffs' U.S. judgments by Turkish courts, and in any event, Halkbank and its experts have shown that plaintiffs' U.S. judgments may be recognized in Turkey. This showing by Halkbank is sufficient to permit a finding that Turkey is an adequate alternative forum.
The analysis presented by the Halkbank experts was far more persuasive than that from the plaintiffs' expert. Halkbank presented the declarations of two Turkish law professors who specialize in Turkish property law and the law of foreign judgments. By contrast, the background of the plaintiffs' expert is primarily in Turkish intellectual property law. In addition to possessing more impressive credentials in relevant areas of Turkish law, the Halkbank experts' statements were far more detailed and supported by more extensive citations and discussion. Plaintiffs' expert declaration focused on the enforcement of plaintiffs' U.S. judgments against Iran in Turkey, while Halkbank's expert declarations addressed in detail both the enforcement of judgments and the equally relevant issue of how Halkbank's alleged conduct could give rise to liability to the plaintiffs under Turkish law.
Next, while the plaintiffs acknowledge that U.S. courts have previously found that Turkey's legal system provides an adequate forum for resolution of civil disputes, they argue that the situation in Turkey has changed. Plaintiffs argue that Turkey is an inadequate forum because the high political salience of the subject matter of this litigation in Turkey -- the participation of a government-connected enterprise, Halkbank, in a scheme to transfer Iran's assets under cover of darkness -- means that they are unlikely to receive a fair hearing in Turkey. This sort of argument is disfavored, as the Second Circuit has held that "it is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation." Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 982 (2d Cir. 1993) (citation omitted). Plaintiffs describe efforts by Turkish officials to interfere with criminal investigations into Halkbank in both Turkey and the U.S. These allegations are serious and deserve attention. If plaintiffs were to litigate this matter in Turkey, however, the litigation would involve Turkey's civil court system rather than its criminal law enforcement agencies. Plaintiffs' allegations regarding Turkish law enforcement are therefore not sufficient to demonstrate that the Turkish civil court system is an inadequate forum for plaintiffs' claims, especially given the Second Circuit's "reluctan[ce] to find foreign courts 'corrupt' or 'biased.'" In re Arbitration between Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 499 (2d Cir. 2002). III. Balancing the Private and Public Interests
Courts in this District and elsewhere have concluded that Turkey is an adequate alternative forum in the forum non conveniens context. See, e.g., Can v. Goodrich Pump & Engine Control Systems, Inc., 711 F.Supp.2d 241, 258 (D. Conn. 2010); Turedi v. Coca Cola Co., 460 F.Supp.2d 507, 523-26 (S.D.N.Y. 2006). Plaintiffs argue that political developments in Turkey since a 2016 coup attempt have undermined the adequacy of the Turkish judiciary, so these prior findings are irrelevant. But even in the wake of these political developments, U.S. courts have continued to hold that Turkey is an adequate alternative forum. See, e.g., Roe v. Wyndham Worldwide, Inc., No. 18-1525-RGA, 2020 WL 707371, at *5 (D. Del. Feb. 12, 2020).
Since the plaintiffs' choice of forum is not entitled to significant deference and Turkey is an adequate alternative forum for this litigation, the final step of the forum non conveniens analysis is the weighing of the relevant private and public interest factors. The Second Circuit has described the private interest factors as including "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; . . . and all other practical problems that make trial of a case easy, expeditious and inexpensive." Iragorri, 274 F.3d at 73-74 (citation omitted). Public interest factors "include administrative difficulties associated with court congestion; the unfairness of imposing jury duty on a community with no relation to the litigation; the interest in having localized controversies decided at home; and avoiding difficult problems in conflict of laws and the application of foreign law." Aguinda, 303 F.3d at 480.
Here, the private interest factors weigh strongly in favor of litigating this case in Turkey. The underlying facts in this litigation involve an alleged fraudulent scheme conducted in large part by a Turkish bank and its Turkish employees in Turkey. The relevant evidence is largely in Turkey. Apart from Zarrab and Atilla, who are incarcerated in the United States for conduct related to the scheme, the potentially relevant witnesses are in Turkey or the surrounding region, as well. These potential witnesses are beyond the subpoena power of this Court. Trying this case in the United States would not be easy, expeditious, or inexpensive.
The plaintiffs take issue with very little of this assessment. They argue that U.S. prosecutors have possession of relevant documentary evidence, but that does not make such evidence accessible to civil litigants in the United States. Plaintiffs also contend that "potential" witnesses will be unable to enter Turkey. The only potential witness identified by the plaintiffs is a former Turkish law enforcement official involved in an investigation into Halkbank who was allegedly forced to flee Turkey. Plaintiffs do not explain why the testimony of this particular law enforcement official is necessary. Otherwise, the plaintiffs' submission does not contest that the witnesses to the alleged Halkbank scheme largely reside in Turkey and are beyond this Court's jurisdiction.
The public interest factors also weigh heavily in favor of litigating in Turkey. There is almost no connection between this case and New York. Plaintiffs have demanded a jury trial in this action, and it would make little sense to burden a New York court and jury with litigation of this action. By contrast, Turkey has a more significant interest in hearing this action, which involves a significant Turkish financial institution.
Additionally, this case presents a choice of law dispute, which further weighs in favor of litigating in Turkey. Halkbank argues that, even if the litigation proceeds in this Court, New York's choice of law rules require the application of Turkish law to the plaintiffs' fraudulent conveyance claims. The plaintiffs contend that New York fraudulent conveyance law applies. The presence of this choice of law dispute and the potential application of Turkish substantive law is a further basis for dismissal, since "the public interest factors point towards dismissal where the court would be required to untangle problems in conflict of laws, and in law foreign to itself." Reyno, 454 U.S. at 251 (citation omitted). IV. Conditions of Dismissal
Because the plaintiffs' choice of forum commands minimal deference, Turkey is an adequate alternative forum for this action, and the private and public interest factors weigh strongly in favor of dismissal, this action is dismissed on the grounds of forum non conveniens. In order to ensure that this case is eventually heard on the merits in Turkey, however, conditional dismissal is proper. Blanco, 997 F.2d at 984 ("[F]orum non conveniens dismissals are often appropriately conditioned to protect the party opposing dismissal.") Dismissal shall be conditioned on Halkbank's agreement to accept service in Turkey, submit to the jurisdiction of Turkish courts, and waive any statute of limitations defense that may have arisen since the filing of this action. The parties shall submit an agreement to litigate in Turkey in accordance with these conditions. A scheduling order accompanies this Opinion.
Conclusion
Halkbank's September 25, 2020 motion to dismiss is conditionally granted. Dated: New York, New York
February 16, 2021
/s/_________
DENISE COTE
United States District Judge