Anwar et al v. Fairfield Greenwich Limited et al

Filing 1046

JOINDER to join re: #1044 Memorandum of Law in Opposition to Motion,. Document filed by CITCO Bank Nederland N.V. Dublin Branch, CITCO Fund Services (Europe) B.V., Citco Canada Inc., Citco Fund Services (Bermuda) Limited, Citco Group Limited, Citgo Global Custody N.V.. (Attachments: #1 Exhibit A)(Feinberg, Dyanne)

EXHIBIT A

ENGLISH TRANSLATION

JUDGMENT

COURT OF AMSTERDAM
private law section
case no. / cause-list no.: C/13/476532/ HA ZA 10-3800
Judgment in procedural issues of 6 February 2013
in the case of
1. The foundation
STICHTING FAIRFIELD COMPENSATION FOUNDATION,
With its registered office in Amsterdam,
2. The company incorporated under the law of the British Virgin Islands
COLIMA INTERNATIONAL LIMITED,
With its registered office in Tortola (British Virgin Islands),
3. The company incorporated under the law of the British Virgin Islands
MERUS TRIDENT TRUST COMPANY (BVI) LIMITED,
With its registered office in Tortola (British Virgin Islands),
plaintiffs in the principal action
defendants in the procedural issue pursuant to articles 85 Dutch Code of Civil Procedure
(hereinafter: DCCP) and/or 22 DCCP and/or 843a DCCP, 12 DCCP and/or 223 DCCP,
plaintiffs in the procedural issue pursuant to article 29 DCCP,
attorney: formerly mr. M.A. Bolkenstein, current mr. P.J. Soede in Utrecht,

versus
1. The public company
CITCO GLOBAL CUSTODY N.V.,
2. The public company
CITCO BANK NEDERLAND N.V. DUBLIN BRANCH,
3. The private limited liability company
CITCO FUND SERVICES (EUROPE) B.V.,
all with their registered offices in Amsterdam
defendants in the principal action,
plaintiffs in the procedural issue pursuant to articles 85 DCCP and/or 22 DCCP and/or 843a
DCCP, 12 DCCP and/or 223 DCCP,
defendants in the procedural issue pursuant to article 29 DCCP,
attorney: mr. M. Deckers in Amsterdam.
Plaintiffs in the principal action will hereinafter be referred to in the female singular as the
Foundation et al. and individually as the Foundation, Colima and Merus. Defendants in the
principal action will hereinafter be referred to in the female singular as Citco et al. and
individually as CGC, CBN and CFS.

1. The proceedings in the procedural issues
1.1.
-

-

-

1.2.

The course of the proceedings in the procedural issues is evidenced by:
The writ of summons dated 23 November 2012, with exhibits;
The preliminary claim and/or claim in the procedural issue for the production
or inspection of documents pursuant to article 85 DCCP and/or article 22
DCCP and/or 843a DCCP, also containing a claim in the procedural issue for
providing preliminary relief or adjournment of the proceedings pursuant to
article 12 DCCP and/or article 223 DCCP, with exhibits;
The statement of defence in the procedural issue, with exhibits;
The B-form of 30 May 2011 from the side of Citco et al., whereby Citco et al.
requested pleadings in the procedural issue brought by it;
The B-form of 31 May 2011 from the side of Citco et al., whereby it opposed
the pleadings in the procedural issue requested by Citco et al.;
The letter from the court registrar of 24 June 2011 to the counsels of parties,
whereby – in short – parties were notified that the Court intended to grant the
request for pleadings;
The fax message from mr. W.G. Folkers, counsel of the Foundation et al.
dated 29 July 2011, whereby he requested on behalf of the Foundation et al.
that statements of reply and rejoinders be allowed prior to the pleadings in the
procedural issue;
The fax message from mr. Deckers aforesaid of 9 August 2011, whereby he
opposed on behalf of Citco et al. the filing of statements of reply and
rejoinders in the procedural issue;
The letter from the court registrar of 12 August 2011 to the counsels of parties
whereby – in short – parties were notified that the request of the Foundation et
al. would not be granted;
The official record of the plea hearing, held on 22 November 2011, with the
documents stated therein;
The deed of deposit dated 14 November 2012 with deed number 17/2012, in
which it was included that a deed of deposit also containing a claim in the
procedural issue for secrecy was filed from the side of the Foundation et al. at
the court registry of this court;
The deed of deposit also containing a claim in the procedural issue for
secrecy dated 14 November 2012 from the side of the Foundation et al. with
exhibits;
The defence containing deposit also containing a statement of defence in the
procedural issue for secrecy.
Finally, a judgment was set in the procedural issues.

2. The dispute
in the principal action
2.1. The Foundation – in short – aims to represent the interests of investors in the
investment funds Fairfield Lambda Limited, Fairfield Sigma Limited en Fairfield Sentry
Limited (hereinafter: the Funds). The Foundation argues that it institutes its claims in
the principal action also by virtue of a mandate provided to it by a large number of
investors specifically named in an annex to the writ of summons (also known as:
Participation Agreement).
2.2. In the principal action the Foundation et al. demands – represented in abbreviated
summary – a declaratory ruling that Citco et al. acted unlawfully vis-a-vis it and are
jointly and severally liable to compensate damage suffered by the investors affiliated
with the Foundation (hereinafter: the Investors), Colima and Merus. The Foundation et
al. argues, in short, that the Investors, Colima and Merus are or were (indirect)

shareholders in the Funds. CGC and CBN were custodian and depository for the
Funds. According to the Foundation et al., CGC and CBN observed insufficient acre
regarding the supervision of the (use of the) funds invested by the Investors, Colima
and Merus. In consequence thereof the Investors, Colima and Merus became the
victim of so-called Ponzi-fraud, committed by Bemard Madoff through his company
Bemard Madoff Investment Securities LLC (hereinafter: BMIS). CFS as administrator
was responsible for the monthly calculation and publication of the Net Asset Value per
Share (hereinafter: the NAV), the net asset value of the Funds per share. According to
the Foundation et al., CFS has been careless in calculating the NAV, because it
completely relied on information furnished by BMIS. It failed, before publication of the
NAV, to ascertain the accuracy of this information. It was precisely the NAVcalculations that were the cause for the Investors, Colima and Merus to invest in the
Funds.
in the procedural issues
the procedural issue on the part of Citco et al.
2.3.

Citco et al. demands that the Court by judgment provisionally enforceable,:
A. orders the Foundation et al. pursuant to article 85 DCCP and/or 22 DCCP and/or

843a DCCP to produce or allow inspection in:
I
(a)
(b)
(c)
(d)
(e)
(f)

certificates of registration of the shareholder positions of the Investors and
Intermediaries in the Funds;
the certificate of registration of the shareholder position of the Intermediary for
Colima;
the certificate of registration of the shareholder position of the Intermediary for
Merus;
the fully filled out, signed and complete bank statements including documents
relating thereto;
the fully filled out, signed and complete Participation Agreements, including
annexes;
certificates of investment relating to Lambda;

II
all (financial) documents that allegedly served as a basis for the decision of the
Investors to invest in the Funds, including in any event the NAV statements
referred to by the Foundation et al;
(h) all (financial) documents that allegedly served as a basis for Colima’s
decision to invest in Sentry;
(i) all (financial) documents that allegedly served as basis for Merus’s decision
to invest in Sigma;
(j) all documents pertaining to any ‘investment advisors’, ‘investment managers’,
‘brokers’, ‘auditors’, ‘custodians’, ‘nominees’ or third parties, who were in any
way involved in the decision-making of the Foundation et al. to invest in the
Funds, including all communications sent to these persons on that subject;
(k) all documents pertaining to any ‘placement agents’ who advised or
recommended that the Foundation et al invest in the Funds, including all
communications sent to these persons on that subject;
(g)

III
(j)

for each Investor a list of purchase and sale of shares in the Funds while
stating the price per share and the transaction date;
(k) a statement for each Investor whether and how many shares they still hold in

which capacity (private or professional) in the Funds;
(1) for each Investor who no longer holds shares in the Funds, a statement for
which amounts and in which capacity (private or professional) the shares in
the Funds were sold;
(m) a list of purchase and sale of the shares by Colima in the Funds while stating
an indication of the price and the transaction date;
(n) a statement of the number of shares Colima still holds in the Funds;
(o) a list of purchase and sale of shares by Merus in the Funds while stating an
indication of the price and transaction date;
(p) a statement of the number of shares Merus still holds in the Funds;
B. principally forbid the Foundation et al. pursuant to article 12 DCCP litis pendence,

C.
D.

E.
F.

connexity and/or article 223 DCCP to continue litigations in the principal action as
long as the case has not been irrevocably decided in the class action and in the
proceedings initiated by the Funds, alternatively stay the principal action until the
case it has been irrevocably decided in the class action and in the proceedings
initiated by the Funds;
permit the filing of statements of reply and rejoinders in the procedural issue
pursuant to articles 223 and 208 paragraph 2 DCCP;
enable parties to orally explain their arguments in the plea pursuant to articles 223
in conjunction with 208 and 134 DCCP, before passing judgment in the procedural
issue;
provide that an appeal can be filed against the judgment in the procedural issue
prior to the final judgment – as the Court understands - in the principal action;
order the Foundation et al. to bear the costs of these proceedings.

The documents mentioned above sub (a) through (p) will hereinafter be jointly referred
to as the Exhibits.
2.4. Citco et al. – in summary – substantiates its claims as follows.
2.4.1. Citco et al. has an interest in investigating and independently establishing whether
the Investors, Colima and Merus invested in the Funds and whether a sufficient
mandate was given by each of them to the Foundation. If it turns out that these
arguments of the Foundation et al. are incorrect, or cannot be proved, the
Foundation et al. should be declared to have no cause of action. Therefore Citco
et al. demands the Exhibits referred to sub 1.
2.4.2. The Foundation et al. stated by writ of summons that if CFS had observed due
diligence in calculating and providing the NAV, the NAV would not have been
presented to the public in the manner concerned and that the Investors, Colima
and Merus would not have invested in the Funds in the same way. In order to be
able to carry a reasoned defence against this argument of the Foundation et al,
Citco et al. demands the Exhibits mentioned sub II.
2.4.3. The Foundation et al. stated by writ of summons that the Investors, Colima and
Merus suffered damage due to the alleged unlawful acts of Citco et al. It does not
follow from the documents entered into the proceedings by the Foundation et al. by
writ of summons that the Investors, Colima and Merus suffered damage and what
is the amount the damage. In order to be able to carry a reasoned defence against
the argument of the Foundation et al., Citco et al. demands the Exhibits mentioned
sub III.
2.4.4. Citco et al. principally demands the documents mentioned sub I, II and III on the
basis of article 85 DCCP. Alternatively, Citco et al. demands that the Foundation et

al. enters the Exhibits into the proceedings pursuant to article 22 DCCP. On the
basis of this article the Court can order a party to enter certain documents
pertaining to the case into the proceedings.
As a second alternative Citco et al. founds its claim on article 843a DCCP.
According to Citco et al. it has a legitimate interest in the documents demanded,
because they are decisive for the outcome of the proceedings in the principal
action. Furthermore, the documents demanded have been sufficiently determined,
because the request pertains to the documents mentioned above under 2.3 sub (a)
through (p). Although Citco et al. are not a party to the legal relationships between
the Investors, Colima and Merus on the one hand and the Funds on the other
hand, or to the legal relationship between the Foundation and the Investors.
However, Citco et al. as a third party has a legitimate interest – as the Court
understands it – in the documents demanded in the legal relationships mentioned
above. After all, it should be irrefutably established what the legal position of the
Foundation et al. is. Furthermore, the Foundation et al, in order to be able to make
an assessment in the context of the alleged unlawful act, should furnish a copy of
or allow inspection of all documents used by the Investors, Colima and Merus in
making their investments. If the Investors, Colima and Merus claim that they
suffered damage, they must substantiate this damage by submitting the documents
needed.
2.4.5. With regard to the claim to impose a ban on litigation and the claim to stay the
principal action, Citco et al. argues the following. In several countries proceedings
are pending involving claims that are largely identical to the claims in the principal
action. Thus, a “class action” procedure was initiated in the United States of
America (hereinafter: the United States) by shareholders in the Funds – before the
Dutch proceedings were instituted – against Citco et al., among others. The
Investors, Colima and Merus are part of the class, as defined in the American
procedure and they are thereby party to these proceedings until an opt-out for them
has taken place. Further, the liquidators of the Funds initiated procedures to
compensate the shareholders for their alleged losses. Consequently, there are
several parallel procedures, in which essentially the same damage and the same
subject are being dealt with. The principal action should therefore be stayed until
these parallel procedures have been settled.
The principal action must be stayed on the basis of article 12 DCCP on the
grounds of litis pendence with the American class action procedure. In addition
there is such connexity between the American class action procedure and the
principal action that for the sake of a proper dispensation of justice the outcome of
the American class action must be waited for, before the Court in the principal
action can decide on the claims.
2.4.6. Given the American class action procedure and the fact that the Investors,
Colima and Merus only have a claim derived from the claim of the Funds, the
Investors, Colima and Merus have an interest to be respected at law in
conducting the proceedings in the principal action. Continued litigation in the
principal action is even unlawful, according to Citco et al. By continuing the
litigations the Foundation et al. abuses the (procedural) law for an illegal purpose
and/or abuses its authority, as mentioned in article 3:13 Dutch Civil Code
(hereinafter: DCC). Therefore Citco et al. demands a ban for the Foundation et al.
on continuing litigations.
2.4.7. The judgment in the procedural issue should be open for an interim appeal,
because obtaining a copy of or being allowed to inspect the documents
mentioned sub I, II and III is decisive for the outcome of the proceedings in the
principal action.

2.5. The Foundation et al. carries a defence. The (additional) arguments of parties,
insofar as relevant for the assessment, will be dealt with hereinafter.
the procedural issue on the part of the Foundation et al.
2.6. The Foundation filed the Participation Agreements and bank statements, and sub
(sub) (sub) nominee statements at the court registry. The Foundation et al. demands
that the Court orders Citco et al., by judgment provisionally enforceable, to observe
secrecy in respect of all documents filed by it, on pain of forfeiting a penalty for Citco
et al. for each day or half-day that Citco et al. remains in (partial) default.
2.7. The Foundation et al. founds its claim on the fact that the documents filed by it to
the Court contain confidential information. Citco et al. refused to enter into a
“confidentiality agreement" with the Foundation et al. The interest of the Investors
in secrecy resides in the fact that they do not want it to become public that they
were duped by the "Madoff fraud" or that they joined the Foundation. In addition
they want to prevent the information provided from being used in any other
proceedings. The Foundation et al. demands for that reason on the basis of article
29 paragraph 1 sub b DCCP that a prohibition of disclosure is imposed on Citco et
al. Since Citco et al. refused to guarantee the secrecy voluntarily, the injunction
must be connected with a penalty.
2.8. Citco et al. carries a defence. The (additional) arguments of parties, insofar as
relevant for the assessment, will be dealt with hereinafter.

3.

The assessment in the procedural issues

3.1. Colima and Merus are based on the British Virgin Islands, Citco et al. are based in
the Netherlands. With regard to these parties there is therefore an international case
and the “Regulation (EC) no. 44/2001 concerning the jurisdiction, the
acknowledgment and enforcement of judgments in civil and commercial matters”
(hereinafter: Brussels I Regulation) is applicable. It is established that the Dutch
Court (in any event) on the basis of article 2 paragraph 1 Brussels I Regulation has
jurisdiction.
in the procedural issue on the part of Citco et al.
3.2. Since the Foundation argues by writ of summons pursuant to the Participation
Agreements that it acts as mandatary of 691 Investors mentioned by name it is
bound (upon request) to attach a copy thereof to the writ of summons. Therefore the
claim of Citco et al. can already be awarded to that extent.
3.3. The next question is if the Foundation et al. is obliged to furnish a copy of and/or
allow inspection of the other documents demanded by Citco et al.
3.4. First, parties in civil proceedings can be expected to state facts and circumstances
relevant to the decision fully and truthfully (article 21 DCCP) and that they furnish a
copy of the documents they invoke (article 85 DCCP). However, the Dutch
procedural law has no general duty of producing documents. The Court can order a
party to provide additional information or documents (article 22 DCCP), but a party
cannot be forced to do so.
3.5. The claim of Citco et al. to produce or allow the inspection of the other documents
demanded by it fails. The Foundation et al. has not (yet) invoked the documents
mentioned by Citco et al., so that the claim cannot be awarded on the basis of article
85 DCCP.

Nor can the claim be awarded on the basis of article 22 DCCP. For no statement of
defence has been filed in the principal action. Although it can be deduced from
what Citco et al. put forward in this procedural issue that it cannot concur with the
arguments advanced by the Foundation et al., there has not yet been a specific
challenge of those arguments. Under those circumstances and at this stage of the
debate conducted between parties, there are no points of reference on the basis of
which it can be assessed if, and if so, to what extent the Foundation et al. is or will
be obliged to further support its arguments or submit certain documents pertaining
to the case.
3.6. Also article 843a DCCP provides no basis for awarding the claim, because the
condition set in this article that the documents demanded must concern a legal
relationship in which the party demanding the documents or his legal predecessor(s)
are a party is not met. Citco et al. acknowledges that it is not a party in the legal
relationships between the Investors, Colima and Merus on the one hand and the
Funds on the other hand. It also acknowledges that it is not a party to the legal
relationship between the Foundation and the Investors. With respect to the NAVstatements Citco et al. must be deemed to be able to dispose of them so that it has
no interest to that extent in a copy furnished by the Foundation et al. Insofar as Citco
et al. is more interested in a copy of those specific documents that the Foundation et
al. wishes to invoke in the context of these proceedings, it intends not so much to
obtain a copy as to persuade the Foundation et al. to further specify its arguments
and/or already to provide evidence thereof at present. There is no room for this in
this procedural issue, however. That opinion will not be any different with the
argument of Citco et al., which essentially implies that the Foundation et al. in any
event in the principal action will have to produce evidence for its arguments. In this
context it is deemed relevant that the Foundation et al. must argue the facts and
rights fully and truthfully, and in case of a challenge provide evidence, which must
lead to its claim being awarded. If it fails in this regard, its claim cannot be awarded
for that reason alone. However, the answer to the question whether the Foundation
et al. must and can prove certain facts argued by it will eventually be addressed in
the principal action and not already at present in this procedural issue.
Ban on continued litigations in the principal action/adjournment of the principal action
3.7. It is not subject to dispute between parties that a class action procedure is pending
in the United States between shareholders of the Funds and Citco et al (among
others). That procedure commenced before the principal action was instituted before
this Court. Citco et al. also stated that procedures were initiated by the liquidators of
the Funds, in order to obtain compensation for the shareholders of the Funds.
3.8. First and foremost, the ban on continuing litigations cannot be allowed on the basis
of article 12 DCCP at any rate. Article 12 DCCP provides no basis for this. For the
article only provides – in short - that the Court can stay the proceedings at hand,
when a case was previously instituted between the same parties and on the same
subject in a different country.
3.9.
The argumentation of Citco et al. pertaining to the principal claim (the ban on
litigation) serves the purpose that the Investors, Colima and Merus have no interest in
the proceedings in the principal action, because they are a party to the American class
action procedure and because they – if the procedures mentioned above sub 3.7 are
successful – will receive damages. In addition they only have a right of action derived
from the Funds, according to Citco et al. The argumentation of Citco et al. is not
concurred with. That the class action procedure will be successful and that the
procedures initiated by the liquidators will be successful is not certain. Nor is it certain
that the Investors, Colima and Merus will then be granted compensation, while the

question whether they only have a derived right of action is a question to be answered
in the principal action, which cannot be anticipated in this procedural issue.
Besides, the Foundation et al. has a legitimate interest in continuing litigations in the
principal action. After all, an irrevocable decision in the class action procedure and in
the procedures initiated on behalf of the Funds can – also in view of the fact that there
are hundreds of procedures according to Citco et al. – may take years, or at least Citco
et al. has not provided any specific points of reference on the basis of which it can be
held that all these procedures will be irrevocably decided within the foreseeable future.
To wait for decisions in all these procedures may entail for the Foundation et al. that
evidence is lost.
In the opinion of the Court there is no question of abuse of procedural law or unlawful
act committed by the Foundation et al. either. For, as will be held below, contrary to
what Citco et al. argues, it cannot be held that there are the same parties to the
proceedings in the class action procedure and in the principal action. Also the interest
of the procedural efficiency does not entail that the Foundation et al. should be
forbidden to continue litigations in the principal action. Citco et al. stated in this context
that costs are likely to be incurred in vain in the principal action, if it were established
that the Investors, Colima and Merus already receive compensation for their alleged
damage otherwise. For in that case the claims should be dismissed. As was held
above, it has not been established, however, that and when the Investors, Colima and
Merus will receive compensation for their alleged damage, so that it cannot be stated
in advance that the costs incurred in the principal action will be in vain.
3.10. What was held above sub 3.8 and 3.9 entails that the principal claim to impose a ban
on litigation will be rejected.
3.11. This leaves the alternative claim to adjourn the proceedings on the grounds of litis
pendence and connexity, until there is an irrevocable decision in the class action
procedure and in the procedures initiated by the Funds.
3.11.1. In the relationship between Colima and Merus on the one side and Citco et al. on the
other side the claim, given the applicability of the Brussels I Regulation, is taken to be
also based on article 27 (litis pendence) and 28 (connexity), respectively, Brussels I
Regulation. Articles 27 and 28 Brussels I Regulation set as condition that there are
proceedings before courts of different Member States. Since Citco et al. has not
argued in which Brussels I Regulation Member States proceedings are pending, the
claim cannot be awarded pursuant to articles 27 or 28 Brussels I Regulation. Also
with regard to Colima and Merus, since it has neither been argued nor been
established that the claim can be based on other clauses of the regulation, the claim
will be assessed on the basis of article 12 DCCP.
3.11.2. Article 12 DCCP provides:
''If a case has been instituted before a court of a foreign state and a
decision can be given therein that can be acknowledged and, in certain
cases, enforced in the Netherlands, the Dutch Court which later has to
decide on a case between the same parties on the same subject can
adjourn the proceedings until the court first mentioned has decided. If that
decision can be acknowledged and, in certain cases, enforced in the
Netherlands, the Dutch Court declines jurisdiction."
This means that the following conditions must be satisfied for the Court to use its
(discretionary) power to stay the proceedings:
- A case must be pending before a court in a foreign state;
- This case must have been instituted before the case that is pending before the
Dutch court;
- the case pending before the court in the foreign state and the case pending

before the Dutch court concern the same parties and the same subject;
- in the case pending before the court in the foreign state a decision can be given

that qualifies for acknowledgment and (in certain cases) enforcement in the
Netherlands.
3.11.3. First and foremost, the arguments of Citco et al. are taken to mean that it is of
the opinion that both with respect to the class action procedure and with respect
to the procedures initiated by the Funds the conditions of article 12 DCCP are
met.
3.11.4. Citco et al, in respect of the procedures initiated by the Funds, has presented
insufficient factual information that should lead to the opinion that in those
procedures the same parties are litigating on the same subject. In this regard the
claim lacks a sufficient factual basis for it to be awarded.
3.11.5. With regard to the argument that the principal action must be stayed due to the
American class action procedure, the following is held. The argumentation of Citco
et al. comes down to the fact that the Investors must be deemed to take part in the
class action procedure, because they have not yet stated that they do not wish to
be involved in that procedure (the so-called “opt-out”). This constitutes the same
parties, within the meaning of article 12 DCCP, according to Citco et al. Since the
same damages are being demanded in the American class action procedure as in
the principal action between the Foundation et al. and Citco et al, the condition that
the same subject is subject to litigation is also satisfied according to Citco et al. The
argumentation of Citco et al. is not concurred with. For the Foundation et al. argued
beyond dispute that, before the chance of an opt-out can exist for the Investors,
Colima and Merus, a “class certification’' will first be effected by the American
Court. In this class certification it will be determined which characteristics a party
must have in order to be considered part of the class, according to the Foundation
et al. Citco et al. did not dispute this. In the opinion of the Court it can only be
assumed, in view of the defence of the Foundation et al., that the Investors, Colima
and Merus are part of the class, and therefore take part in the class action
procedure, after a class certification has taken place. For only then it will be clear
whether the Investors, Colima and Merus are considered part of the class. Up to
that time only the parties mentioned by name in the class action procedure can be
deemed a party to those proceedings and there is no question of the same parties
as mentioned in article 12 DCCP. On this ground there is no reason either to stay
the proceedings, as Citco et al. advanced at the plea hearing, until the class
certification has taken place. The Court finds insufficient cause to stay the principal
action in the fact that one of the Investors is already a party to the class action
procedure. This would entail, after all, since the Foundation is a party in the
principal action and not the individual Investors, that the principal action would be
stayed in respect of all Investors. In the opinion of the Court the interest of the joint
investors in continuing the proceedings - as described above sub 3.9 – outweighs
the interest of Citco et al. in adjourning the proceedings in the principal action.
3.12. Citco et al. also advocated adjournment of the principal action on the grounds of
connexity between the claims in the principal action and the claims in the class
action procedure. The sole reference to the documents entered into the proceedings
by it is insufficient, however, to assume the connexity asserted by Citco et al. The
Court does not feel it is its duty, without further explanation on the part of Citco et al.,
which is lacking, to look for points of reference in the documents for the arguments of
Citco et al.
3.13. Since there is no reason for adjourning the principal action pursuant to article 12
DCCP, the Court sees no reason either to do so by way of preliminary relief pursuant

to article 223 DCCP. On the basis of this clause Citco et al. did not present any
arguments contrary to what was stated above.
3.14. In the procedural issue the plea already took place, on which occasion parties had
the opportunity to respond to what was presented in the claim in the procedural issue
and the reply in the procedural issue. Therefore there is no reason to still allow for
statements of reply and rejoinders in the procedural issue.
3.15. Finally, Citco et al. demanded that it would lodge an interim appeal against this
judgment. In the argument of Citco et al. that obtaining a copy of or inspecting the
documents demanded by it is decisive for the outcome of the principal action the
Court sees no reason to deviate from the principal rule that only with the final
judgment an appeal can be lodged against the judgment in the procedural issue.
This is particularly the case since the documents demanded by Citco et al. may also
be addressed in the context of the furnishing of evidence.
3.16. The claims on the part of Citco et al. will be rejected for the major part. Citco et al.,
as the predominantly unsuccessful party, will be ordered to bear the costs of this
procedural issue, currently estimated on the part of the Foundation et al. at EUR
904,—.
in the procedural issue on the part of the Foundation et al.
3.17. The Foundation et al. demands on the basis of article 29 paragraph 1 sub b DCCP
that Citco et al. be ordered to observe secrecy in respect of the documents filed by
the Foundation et al., on pain of forfeiting a penalty.
3.18. The claim will be rejected. To this end it is held that the documents filed by the
Foundation et al. were entered into the proceedings by it in order to respect the wish
of Citco et al. for a further substantiation of the arguments of the Foundation et al.
The Foundation et al. also entered documents into the proceedings by writ of
summons in support of its arguments. These documents, too, contain data stated
relating to the individual Investors, Colima and Merus. The Foundation et al. did not
demand that a prohibition of disclosure to be imposed will also pertain to these
documents. Without further explanation, which is lacking on the part of the
Foundation et al., it not clear why the contents of the documents filed would be so
price-sensitive that this would justify that a prohibition of disclosure be imposed on
Citco et al. subject to a penalty.
3.19. The Foundation et al. as the unsuccessful party will be ordered to bear the costs of
this procedural issue currently estimated on the part of Citco et al. at EUR 452,—.
4.

The decision
The Court
in the procedural issue on the part of Citco et al.
4.1. orders the Foundation to furnish to Citco et al. a copy of the Participation
Agreements within 14 days of today;

4.2. orders Citco et al. to bear the costs of this procedural issue, currently
estimated at EUR 904,-;
4.3. declares this judgment provisionally enforceable to that extent,
4.4. dismisses all other applications;
in the procedural issue on the part of the Foundation et al.
4.5. rejects the claim;
4.6. orders the Foundation et al. to bear the costs of this procedural issue, currently
estimated at EUR 452;

4.7. declares the order for litigation costs provisionally enforceable;
in the principal action
4.8. refers the case to the cause list of 20 March 2013 for a statement of defence;
4.9. adjourns any further decision.
This judgment was delivered by mr. A.W.H. Vink and pronounced in open court on 6
February 2013.