Levin et al v. Bank of New York et al
Filing
925
OPINION AND ORDER. #103615 For the reasons stated in this Opinion and Order, the Judgment Creditors' motion for partial summary judgment with respect to the Phase Two Blocked Assets is granted. The Banks are hereby ordered to turn over the Phase Two Blocked Assets with accrued interest to the Judgment Creditors in accordance with the protocol designated by the Judgment Creditors. re: #763 JOINT MOTION for Partial Summary Judgment By The Greenbaum, Acosta, Heiser And Levin Judgment Creditors filed by Maria Acosta, Steven M. Greenbaum, Carlos Acosta. (Signed by Judge Robert P. Patterson on 9/19/2013) Copies Sent By Chambers via email. All other counsel of record notified by ECF. (rjm) Modified on 9/24/2013 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MR. JEREMY LEVIN and DR. LUCILLE LEVIN,
Plaintiffs,
09 CV 5900 (RPP)
- against OPINION & ORDER
THE BANK OF NEW YORK MELLON, JPMORGAN
CHASE & CO., JPMORGAN CHASE BANK, N.A.,
SOCIÉTÉ GÉNÉRALE, and CITIBANK, N.A.,
Defendants.
--------------------------------------------------------------------X
THE BANK OF NEW YORK MELLON, JPMORGAN
CHASE & CO., JPMORGAN CHASE BANK, N.A.,
SOCIÉTÉ GÉNÉRALE, and CITIBANK, N.A.,
Third-Party Plaintiffs,
- against STEVEN M. GREENBAUM, et al.,
Third-Party Defendants.
--------------------------------------------------------------------X
THE BANK OF NEW YORK MELLON, JPMORGAN
CHASE & CO., JPMORGAN CHASE BANK, N.A.,
SOCIÉTÉ GÉNÉRALE, and CITIBANK, N.A.,
Third-Party Plaintiffs,
- against ESTATE OF MICHAEL HEISER, et al.,
Third-Party Defendants.
--------------------------------------------------------------------X
THE BANK OF NEW YORK MELLON, JPMORGAN
CHASE & CO., JPMORGAN CHASE BANK, N.A.,
SOCIÉTÉ GÉNÉRALE, and CITIBANK, N.A.,
Third-Party Plaintiffs,
1
- against CARLOS ACCOSTA, et al.,
Third-Party Defendants.
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ROBERT P. PATTERSON, JR., U.S.D.J.
On August 29, 2012, Plaintiffs Jeremy Levin and Dr. Lucille Levin (the “Levin
Plaintiffs” or the “Levins”) and third-party Defendants Steven M. Greenbaum, et al. (the
“Greenbaum Judgment Creditors”), Carlos Accosta, et al. (the “Accosta Judgment Creditors”),
and the Estate of Michael Heiser, et al. (the “Heiser Judgment Creditors”) (collectively the
“Judgment Creditors”) filed a joint motion for partial summary judgment on their claims for
turnover of certain blocked assets among those that this Court has designated as the Phase Two
Blocked Assets.1 (Judgment Creditors’ Joint Mot. for Partial Summ. J. (“Phase Two Motion”),
ECF No. 763.) These assets are currently held by the Defendants Bank of New York Mellon
(“BNYM”); JPMorgan Chase & Co., JPMorgan Chase Bank (collectively, “JPMorgan”); Société
General (“SoGen”); and Citibank (collectively, the “Banks”).2 (Id. at 11.) JPMorgan and
SoGen3 filed their opposition papers on October 15, 2012 (“JPMorgan Opp.” and “SoGen Opp.,”
1
In the present motion, the Judgment Creditors seek turnover of approximately $4.7 million or 82% of the Phase
Two Blocked Assets. (See Tr. of Aug. 16, 2012 Hr’g (“8/16/12 Tr.”) at 7, ECF No. 777.) According to the
Judgment Creditors, the remaining Phase Two Blocked Assets are not ripe for summary judgment at this time. (Id.
at 3; see also Letter from Richard M. Kremen (“8/16/12 Judgment Creditors’ Let.”) at 2.)
2
The Court assumes familiarity with the factual background and prior history of this case. A more complete
description of the case may be found in the Court’s decision regarding the Phase One Blocked Assets. See Levin v.
Bank of New York, No. 09 CV 5900, 2011 WL 812032, at *1 (S.D.N.Y. Mar. 4, 2011) (“Levin I”).
3
Unlike the other Banks, SoGen does not oppose turnover of the Phase Two Blocked Assets. (See SoGen Opp. at
1.) Instead, SoGen’s opposition papers only raise the issue of whether the Judgment Creditors are entitled to interest
on the assets for the time spanning the date of blocking to the date of turnover. (See id.) Citibank joined SoGen’s
opposition on this point, which was not raised by the other Banks; Citibank also opposes turnover of the electronic
fund transfers (“EFTs”). (See Citibank Opp. at 2.)
2
respectively); BNYM filed its opposition papers on October 16, 2012 (“BYNM Opp.”); and
Citibank filed its opposition papers on October 22, 2012 (“Citibank Opp.”).4
The Banks identified over two hundred commercial third-party Defendants – persons or
entities with potential rights or claims to the Phase Two Blocked Assets.5 The Judgment
Creditors served each of these potential third-party Defendants; however, only six answered the
third-party complaints and claimed any interest in any of the Phase Two Blocked Assets. (See
Decl. of Curtis C. Mechling in Supp. of J. Creditors’ Joint Mot. for Partial Summ. J. on Claims
4
Citibank’s opposition memorandum of law does not contain any case citations or argument of its own. (See
Citibank Opp.) Instead, Citibank states only that “it hereby joins in the memoranda [sic] of law filed by [SoGen] . . .
to the extent that it raises the issue of the appropriate scope of relief with respect to the payment of interest on
blocked accounts” and also joins in the memorandum of law filed “by the [JPMorgan] and [BNYM parties] to the
extent it draws the Court’s attention to the recent decisions, filings and pending appeals on the issue of electronic
fund transfers cited therein.” (Id. at 1-2.)
5
The Banks also named as third-party Defendants other Iranian Judgment Creditors who the Banks had reason to
believe might assert a claim against the Phase Two Blocked Assets. (See J. Creditors’ Statement Pursuant to Local
Rule 56.1 (“J. Creditors’ 56.1 Stmnt.”) ¶¶ 38-39, ECF No. 767.) The Banks named and served the Peterson
Judgment Creditors, Rubin Judgment Creditors, Weinstein Judgment Creditors, Owens Judgment Creditors, Valore
Judgment Creditors, Sylvia Judgment Creditors, Bland Judgment Creditors, Brown Judgment Creditors, Murphy
Judgment Creditors, and Bennett Judgment Creditors. (See id. ¶ 39.) The Peterson Judgment Creditors waived any
claim with respect to the Phase Two Blocked Assets and were dismissed from this action on December 12, 2012.
(See id. ¶ 40; Letter from Liviu Vogel (“10/28/11 Vogel Ltr.”) 1, ECF No. 491; Stipulation, Order, & J. of Dismissal
as to JPMorgan Assets 1, Dec. 12, 2011, ECF No. 561: Stipulation, Order, & J. of Dismissal as to BNYM Assets 1,
Dec. 12, 2011, ECF No. 562; Stipulation, Order, & J. of Dismissal as to SoGen Assets 1, Dec. 12, 2011, ECF No.
564.) The Rubin Judgment Creditors and the Weinstein Judgment Creditors failed to respond and are in default. (See
Mechling Decl. ¶ 41.) The Brown and Bland Judgment Creditors, the Owens Judgment Creditors, and the Murphy
Judgment Creditors have answered the third-party complaints but asserted no claims or rights to the Phase Two
Blocked Assets. (See Brown & Bland Answer to BNYM Third Party Compl., ECF No. 439; Brown & Bland
Answer to JPMorgan Third Party Compl., ECF No. 440; Owens Answer to BNYM Third Party Compl., ECF No.
457; Owens Answer to JPMorgan Third Party Compl., ECF No. 458; Owens Answer to Citibank Third Party
Compl., ECF No. 460; Brown & Bland Answer to Citibank Third Party Compl., ECF No.462; Owens Answer to
SoGen Third Party Compl., ECF No. 485; Murphy Answer to Citibank Third Party Compl., ECF No.732; Murphy
Answer to JPMorgan, BNYM, SoGen Third Party Compl., ECF No. 737.) The Bennett Judgment Creditors filed an
answer to the JPMorgan third-party complaint and counterclaimed against JPMorgan but did not counterclaim for a
turnover of the Phase Two Blocked Assets. (See Bennett Answer to Third Party Compl. & Countercls. ¶¶ 65-82,
ECF No. 716.) The Valore Judgment Creditors filed answers and counterclaimed against JPMorgan, BNYM, and
Citibank. (See Valore Answer to Citibank Third Party Compl. & Countercls (“Valore Citibank Answer”), ECF No.
466; Valore Answer to BNYM Compl. & Countercls. (“Valore BNYM Answer”), ECF No. 489; Valore Answer to
JPMorgan Compl. & Countercls. (“Valore JPMorgan Answer”), ECF No. 490.) The Valore Judgment Creditors’
counterclaim is based upon, inter alia, writs of execution allegedly delivered to the U.S. Marshal on October 5,
2011. (See Valore Citibank Answer ¶ 75.) The Valore Judgment Creditors have not joined this motion for summary
judgment, nor have they submitted any evidence to support their alleged compliance with 28 U.S.C. § 1610(c). In
any case, this writ of execution is later in time than the writs of execution obtained by the Judgment Creditors who
are, collectively, the moving parties in this summary judgment motion, and any claim the Valore Judgment Creditors
have is therefore inferior. See Levin I, 2011 WL 812032 at *8-12.
3
for Turnover of Phase Two Blocked Assets (“Mechling Decl.”) Exs. 24-27, Aug. 29, 2012, ECF
No. 764.) Of those six commercial third-party Defendants, only one – the Central Bank of
[REDACTED] (“CB”) – filed a memorandum in opposition to the Judgment Creditors’ summary
judgment motion. (See CB’s Mem. of Law in Opp. to the J. Creditors’ Mot. for Partial Summ. J.
on Claims for Turnover of Phase Two Blocked Assets (“CB Opp.”), ECF No. 798. ) Although
placed on notice by the Court, (see Letter to Sean Thornton, Office of Foreign Assets Control
(“12/11/09 OFAC Ltr.”); Letter to Harold Koh, Department of State (“12/11/09 State Dept.
Ltr.”)), the United States government has taken no position on this case nor appeared at any of
the proceedings (see Tr. of June 21, 2011 H’rg (“Tr. 6/21/2011”), ECF No. 409, at 8-9; Tr. of
Nov. 13, 2012 H’rg (“Tr. 11/13/12”), ECF No. 835, at 4-5).
For the reasons stated below, the Judgment Creditors’ motion for partial summary
judgment on their claims for turnover of the Phase Two Blocked Assets is granted.
I.
BACKGROUND
The Court assumes familiarity with the factual and procedural history discussed in its
March 4, 2011 Opinion and Order (the “Phase One Opinion”) recognizing the Judgment
Creditors’ priority interest in the Phase One Assets and granting turnover of those assets. See
Levin I, 2011 WL 812032, at *1-21. In brief summary, the Judgment Creditors each hold a valid,
unsatisfied judgment against the Islamic Republic of Iran (“Iran”), awarded pursuant to either
§ 1605(a)(7) or § 1605A of the Foreign Sovereign Immunities Act (“FSIA”) and registered in
this District. Id. Seeking satisfaction of these judgments, the Judgment Creditors claim that they
are entitled to turnover of certain assets held by the Banks and blocked by the United States
4
government’s Office of Foreign Asset Control (“OFAC”) pursuant to various blocking
regulations.6
In its Phase One Opinion, the Court held that “the record demonstrates that the judgment
[debtor], Iran, or its agencies or instrumentalities have an interest in” the Phase One deposit
accounts and electronic fund transfers (“EFTs”) blocked by OFAC and held at the Banks. Id. at
*18, *21. Accordingly, the Court concluded, based on its reading of the Terrorism Risk
Insurance Act (“TRIA”), FSIA § 1610(f)(1)(A), and the applicable sanctions regulations, that the
Phase One Blocked Assets were subject to attachment and execution by certain Judgment
Creditors in partial satisfaction of their outstanding judgments against Iran.7 Id. at *21. Though
the Levin Judgment Creditors filed notice of appeal of the Court’s Phase One Opinion, the
appeal was never briefed and the parties withdrew their appeal shortly thereafter. (See Notice of
Appeal, ECF No. 332; Order Granting Mot. to Withdraw Appeal, Aug. 10, 2011, ECF No. 415.)
The Court now turns to the Judgment Creditors’ claim for turnover of the Phase Two
Blocked Assets, which are identified in the declaration of Curtis Mechling, Esq., counsel for the
Greenbaum and Accosta Judgment Creditors. (See Mechling Decl., Exs. 24-27.) Like the Phase
6
Since January 1984, Iran has been designated a “state sponsor of terrorism” under the Export Administration Act,
and is a “terrorist party” as defined under TRIA § 201(d)(4). See Weinstein v. Islamic Republic of Iran, 609 F.3d 43,
48 (2d. Cir. 2010); Export Administration Act § 2405, 50 App. U.S.C.A §§ 2401-20 (West 2004). Further, certain
entities connected to Iran are designated by OFAC to be “agencies and instrumentalities of Iran” and are placed on
its Specially Designated Nationals List (“SDN List”). See United States Treasury Website, Specially Designated
Nationals List, http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx (last updated Sept.
6, 2013) (“SDN List”). Assets of entities placed on the SDN List must be blocked pursuant to OFAC’s sanctions
regulations and Presidential Executive Orders. See, e.g., Exec. Order No. 13,599, 77 Fed. Reg. 6,659 (Feb. 5, 2012);
31 C.F.R. § 595.204 (2013).
7
In its Phase One Opinion, the Court ordered the Defendant Banks to turn over the Phase One Assets to the Accosta
and Greenbaum Creditors, but not the Levin and Heiser Creditors. Levin I, 2011 WL 812032, at *21. The Court
concluded that “[d]ue to their failure to obtain a court order under 28 U.S.C. § 1610(c) prior to serving the writs of
execution on the New York Banks,” the Levins writs were invalid. Id. In addition, the Court held that the Heiser
Creditors’ writ was “not capable of attaching the Bank of New York assets located in New York state because it was
issued by a Maryland court and served on the Bank of New York in Maryland.” Id.. Accordingly, the Court held
that only the Accosta and Greenbaum Creditors were entitled to a grant of partial summary judgment with respect to
the Phase One Assets. Id. As for the Phase Two Blocked Assets, it is the Court’s understanding that, as part of
settlement discussions following the Phase One Opinion, the Judgment Creditors have worked out priority of
interest amongst themselves. (See 8/16/12 Tr. at 15-16.)
5
One Blocked Assets, the Phase Two Blocked Assets held by the Banks consist of assets held at
the Banks and blocked by OFAC. The Banks disclaim any interest in these assets but
nevertheless raise issues concerning the Judgment Creditors’ legal entitlement to turnover.
II.
LEGAL STANDARD
Summary judgment is appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The moving party holds the initial burden of
demonstrating that there is no genuine issue of material fact. F.D.I.C. v. Great American Ins.
Co., 607 F.3d 288, 292 (2d Cir. 2010). When the moving party has met this initial burden, the
opposing party must set forth specific facts showing that there is a genuine issue for trial, and
cannot rest on mere allegations or denials of the facts asserted by the movant. Davis v. State of
New York, 316 F.3d 93, 100 (2d Cir. 2002). The Court must “view the evidence in the light
most favorable to the non-moving party, and may grant summary judgment only when no
reasonable trier of fact could find in favor of the non-moving party.” Allen v. Coughlin, 64 F.3d
77, 79 (2d Cir. 1995).
III.
DISCUSSION
A. Whether the Phase Two Assets Are Subject to Attachment and Turnover
Under the law of the case doctrine, where “a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Pepper v. United States, 131 S. Ct. 1229, 1250 (2011); see also Scottish Air Int’l, Inc. v. British
Caledonian Group, PLC, 152 F.R.D. 18, 24-25 (S.D.N.Y. 1993) (stating that such prior decisions
on a legal issue create “binding precedent”). Courts should only revisit prior rulings in a case if
6
there are “‘cogent” or ‘compelling’ reasons” for doing so, such as “an intervening change in law,
availability of new evidence, or ‘the need to correct a clear error or prevent manifest injustice.’”
Johnson v. Holder, 564 F.3d 95, 99-100 (2d Cir. 2009).
Here, in interpreting TRIA and the FSIA to dictate that all of the Phase One Blocked
Assets – including blocked EFTs held by intermediary banks – were subject to attachment and
turnover, the Court’s Phase One Opinion held that
It is plainly the intention of TRIA and the FSIA to make blocked
assets available to plaintiffs . . . . The nature and wording of TRIA
. . . indicate[s] that Congress intended all blocked assets to be
available for attachment by victims of terror. [. . . ] TRIA and the
FSIA employ language subjecting any blocked assets to attachment
in these circumstances.
Levin, 2011 WL 812032, at *18 (emphasis in original). As such, the Court determined that
TRIA § 201 and FSIA § 1610(f)(1)(A) preempt contrary provisions in Article 4 of the Uniform
Commercial Code (“UCC”), which would prevent a judgment creditor from executing on funds
involved in wire transfers that have been initiated but not completed. Id. (citing Hausler v.
JPMorgan Chase Bank, N.A., 740 F. Supp. 2d 525 (S.D.N.Y. 2010) (“Hausler I”)); also compare
TRIA § 201 and FSIA § 1610(f)(1)(A) with UCC § 4A-502.
The Phase Two Blocked Assets are of the same types as the Phase One Blocked Assets,
and none of the relevant laws have been amended in the time since the Phase One Opinion was
issued. As such, the law of the case doctrine suggests that the Court should similarly find that all
of the Phase Two Blocked Assets are subject to attachment and turnover, including funds
involved in wire transfers that were blocked before they reached the beneficiary’s bank, provided
that third parties have not asserted a cognizable interest in the blocked assets. See Pepper, 131 S.
Ct. at 1250.
7
Nevertheless, the Banks argue that the Court should reconsider the holding of its Phase
One Opinion with respect to the proceeds of blocked wire transfers held by intermediary banks
in light of the Supreme Court’s subsequent decision in Board of Tr. of Leland Stanford Junior
Univ. v. Roche Molecular Sys., Inc., 131 S. Ct. 2188 (2011) (“Stanford”), and applications of
that decision by other district courts in Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F.
Supp. 2d 389 (S.D.N.Y. 2011), appeal docketed, No. 12-75 (2d Cir. Jan. 10, 2012), and Estate of
Heiser v. Islamic Republic of Iran, 885 F. Supp. 2d 429 (D.D.C. 2012), appeal docketed, No. 127101 (D.C. Cir. Oct. 5, 2012). But see also Hausler v. JPMorgan Chase Bank, N.A., 845 F.
Supp. 2d 553 (S.D.N.Y. 2012) (“Hausler II”), appeal docketed, No. 12-1264 (2d Cir. Mar. 20,
2012).
The Court will first address whether blocked EFTs held by intermediary banks are
subject to execution. The Court will then turn to whether the Phase Two Blocked Assets share a
sufficient nexus with Iran to be subject to attachment and turnover.
i. Blocked Wire Transfers Held by Intermediary Banks Are Subject to
Attachment and Turnover
1. Stanford and District Court Applications of Stanford
After this Court issued its Phase One Opinion, the Supreme Court decided Stanford, a
patent law case that addressed, in part, the statutory interpretation of the word “of” within the
context of ownership of patent rights. See 131 S.Ct. at 2193. Following the Stanford decision,
several district court opinions have discussed its holding with respect to TRIA, of which three
merit discussion at some length: Judge Denise L. Cote’s opinion in Calderon-Cardona, 867 F.
Supp. 2d 389; Judge Victor Marrero’s opinion in Hausler II, 845 F. Supp. 2d 553; and Judge
Royce C. Lamberth’s opinion in Heiser, 885 F. Supp. 2d 429.
8
Stanford itself did not interpret TRIA, but rather answered the question of whether the
Bayh-Dole Act “displaces the norm” that the rights to an invention generally belong to the
inventor in patent cases. Stanford, 131 S. Ct. at 2192. To answer that question, the Court
interpreted the phrase “invention of the contractor.” Id. at 2193. Stanford University argued that
this phrase was most naturally read “to include all inventions made by the contractor’s
employees with the aid of federal funding,” a reading that would have entitled Stanford, as the
employer, to rights over the patent at issue. Id. at 2196. The Court found Stanford’s reading
“plausible enough in the abstract,” but went on to note that “patent law has always been
different,” and that, in patent law, the Court has rejected the idea that employment is sufficient to
vest title to an employee’s invention in the employer. Id. at 2196-7. Reading the Bayh-Dole Act
against this backdrop, the Court went on to explain that “the use of the word ‘of’ denotes
ownership” (internal citations omitted), and interpreted the statute to vest title to the patent in the
employee rather than in his employer. Id. at 2196.
Subsequently, the Calderon-Cardona Court addressed the question of whether EFTs in
which the Democratic Republic of North Korea and its main intelligence agency, the Cabinet
General Intelligence Bureau, had an interest that could be attached by terrorism victims pursuant
to TRIA § 201(a). 867 F. Supp. 2d at 389. Though it disposed of the case by determining that
North Korea was not a “terrorist party” as defined by TRIA, see id. at 394-95, the CalderonCardona Court nevertheless went further and determined that TRIA did not preempt state law
definitions of property ownership, id. at 401. To reach this conclusion regarding the preemptive
force of TRIA, it cited Stanford for the proposition that “the use of the word ‘of’ denotes
ownership.” Id. at 399 (citing Stanford, 131 S. Ct. at 2196). Finding no definition of “property”
9
or “property ownership” in TRIA, the court looked not to OFAC blocking regulations, but rather
to state law. Id. at 400.
By contrast, the Hausler II Court found that TRIA preempted state property law,
reaffirming its previous ruling, Hausler v. JPMorgan Chase Bank, N.A., 740 F.Supp.2d 525
(S.D.N.Y. 2010) (“Hausler I”). In so holding, it emphasized “the Supreme Court’s focus on the
pertinent statutory context in Stanford.” Hausler II, 845 F.Supp.2d at 569. Looking at TRIA
within its statutory context, the Hausler II Court first found that TRIA must be read in a way that
harmonizes the statute with OFAC regulations, in that case, the Cuban Assets Control
Regulations (“CACRs”). The “CACRs broadly define the range of Cuban property interests
subject to being blocked under OFAC’s direction, and the TRIA expressly makes those blocked
assets available for attachment and execution to satisfy certain judgments.” Id. at 562.
Second, the Hausler II Court held that TRIA represented “Congress’s recognition that
federal law must provide the substantive rules governing the recovery of terrorism related
judgments.” Id. at 563. Third, it held that the use of state property law to dictate the range of
assets executable under the TRIA would lead to divergent outcomes depending on where the
physical site of the blocking of EFTs was located, and could lead to a system that could be easily
manipulated by intermediary banks, “who appear unconstrained in determining where to locate
the accounts created when they block an EFT.” Id. Finally, the Hausler II Court held that the
interpretation preferred by the garnishee banks would mean that assets could be blocked by
OFAC, but then could not be reached by terrorism victims for the enforcement of judgments,
“frustrat[ing the] core objective” of TRIA, to satisfy judgments held by victims of terror. Id. at
564.
10
Finally, the Heiser Court opinion in the District Court of the District of Columbia,
addressed the question of whether Iran had an ownership interest in blocked EFTs sufficient to
permit judgment creditors to attach those assets. 885 F.Supp.2d at 429. The Court found that
Congress intended for the federal government to control the disposition of assets of state
sponsors of terror, and that therefore federal law preempted state law. Id. at 444-45. However,
the Heiser Court did not look to the OFAC regulations to determine what ownership interest was
required, relying, in part, on a governmental statement of interest submitted to that court. See id.
at 441 (noting the government’s argument that OFAC blocked assets are used for purposes other
than attachment, including as a negotiating tool between nations, and that therefore the scope of
attachment under TRIA should not be read coextensively with OFAC blocking regulations); (see
also Statement of Interest of the U.S. at 12, Estate of Heiser v. Islamic Republic of Iran, 00 CV
2329 (RCL) (“Heiser Statement of Interest”).) (taking no stance on the preemptive force of
TRIA, but arguing that the phrase “of a terrorist party” required an ownership interest, and the
nature of that ownership interest was not defined by TRIA or the OFAC regulations)).
Rather, the Heiser Court crafted federal common law to determine what ownership
interest was required by TRIA § 201(a), using U.C.C. Article 4 and the common law of judgment
liens to guide its determination.8 See id. at 438 (noting that the common law historically
provided that “[t]he lien of a judgment attaches to the precise interest or estate which the
judgment debtor has actually and effectively in the property, and only to such interest”).
8
This approach was followed by a subsequent D.C. District Court decision by Judge Lamberth in Peterson v.
Islamic Republic of Iran, No. 01-2094 (RCL), 2013 WL 1460188 (D.D.C. Apr. 11, 2013), appeal docketed No. 137086 (D.C. Cir. May 28, 2013), which held that a garnishee bank, HBUS, had committed no sanctionable conduct
when it failed to disclose the existence of three blocked EFTs to judgment creditors. The garnishee bank had
averred, in interrogatories, that it was not “indebted to” defendants (in that case, agencies and instrumentalities of
Iran) and did not possess any of their “goods, chattels, or credits.” The court held that sanctions were not appropriate
because the statements were legally accurate and defendants had no possessory interest in the EFTs.
11
2. There is no Intervening Change in the Law that Requires This Court to
Diverge from its Finding that the TRIA Preempts State Law
Upon a thorough review of the cases cited by the Banks and the Judgment Creditors, this
Court does not find any “‘cogent’ or ‘compelling’ reasons,” Johnson, 564 F.3d at 99-100, to
revisit its prior holding. More specifically, there has been no intervening change in law that alters
this Court’s holding that the phrase “blocked assets of that terrorist party,” when read within the
statutory context of the TRIA, “indicate[s] that Congress intended all blocked assets be available
for attachment by victims of terror.” Levin I, 2011 WL 812032, at *18. This Court’s prior
holding that TRIA preempts state law is therefore affirmed.
First, the case law cited by the Banks and the Judgment Creditors shows that the language
of TRIA § 201(a) must be interpreted in light of the “nature and wording of the statute.” See
Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., Ltd., 609 F.3d 111, 116 (2d Cir. 2010)
(“Whether or not midstream EFTs may be attached or seized depends upon the nature and
wording of the statute pursuant to which attachment or seizure is sought.”). For example,
Stanford instructs that the interpretation of a statute is highly dependent on the context in which
it is written. Though the Court explained its decision, in part, by saying that “the use of the word
‘of’ denotes ownership,” Stanford, 131 S.Ct. at 2196, it also made clear that it was interpreting
the patent statute in light of the 220 years of patent law since the first Patent Act, and further
noted that the interpretation of the phrase “invention of the contractor” proposed by Stanford
University, while otherwise a plausible interpretation, would represent a “sea change in
intellectual property rights.” Id. at 2199.
The phrase “of that terrorist party,” found in TRIA § 201(a) should therefore be
interpreted within the context of the OFAC regulations and in a manner consistent with the
remedial purpose of the statute. First, TRIA § 201 refers to OFAC regulations implemented
12
pursuant to the Trading With the Enemy Act (“TWEA”) and the International Emergency
Economic Powers Act (“IEEPA”), showing Congress’ intent that the statutes be considered
together. See Levin I, 2011 WL 812032 at *15 (noting that TRIA § 201(d)(2) defines “blocked
assets” by reference to the TWEA and IEEPA, and finding that “federal law comprehensively
addressed property rights in this context”) (citing Hausler I, 740 F.Supp.2d at 531.). The OFAC
blocking regulations implemented pursuant to the TWEA and IEEPA broadly define the interest
in property that a terrorist party must have in certain assets before they may be blocked. See, e.g.,
31 C.F.R. § 544.201 (“all property and interests in property that are in the United States…are
blocked”); 31 C.F.R. § 544.305 (defining an “interest in property” as “an interest of any nature
whatsoever, direct or indirect”). Legislating against the backdrop of broadly worded OFAC
regulations, Congress worded TRIA broadly, thus subjecting all assets blocked under OFAC
regulations to attachment by terror victims holding valid judgments.
That Congress intended to render blocked assets attachable rather than leaving them
blocked or frozen is in line with the remedial purpose of TRIA, and such an intent is evident in
the legislative history.9 Senator Tom Harkin, a sponsor of the Act, stated, “Making the state
9
The United States government, in an amicus brief before the Second Circuit and a statement of interest before the
Heiser Court, argues that both TRIA and FSIA § 1610(g) require an ownership interest. (See Heiser Statement of
Interest; Brief for the United States as Amicus Curiae at 15, JPMorgan Chase, N.A. v. Hausler, No. 12-1264
(“Hausler Amicus Br.”).) This Court has never held otherwise, although the Phase One Opinion held, and its holding
is affirmed here, that the nature of that ownership interest is defined by the OFAC regulations rather than by
reference to state law. The government goes on to argue for the strategic importance of allowing some assets
blocked pursuant to OFAC regulations to be unattachable. In part, the government argues that these blocked assets
are used for leverage for international negotiations. (See Hausler Amicus Br. at 23.)
This Court has no statement of government interest before it, although the Executive Branch was invited to
participate in this action. (See 12/11/09 OFAC Ltr.; 12/11/09 State Dept. Ltr.; Tr. 6/21/2011 at 8-9; Tr. 11/13/12 at
4-5.) Its statements of interest in separate actions will be accorded no deference. See Republic of Altmann v.
Austria, 541 U.S. 677, 701-2 (2004) (rejecting the United States government’s interpretation of FSIA when it is a
matter of “pure question of statutory construction…well within the province of the Judiciary” and finding that the
United States’ views “merit no special deference”); Hausler I, 740 F.Supp.2d at 537 (noting that “[c]ourts must
presume that a legislature says in a statute what it means and means in a statute what it says there, notwithstanding
any contrary interpretation by the Executive Branch”). Any statement from the Executive Branch submitted with
13
sponsors [of terrorism] actually lose billions of dollars will more effectively deter future acts of
terrorism than keeping their assets blocked or frozen in perpetuity.” 148 Cong. Rec. S11524-01
(daily ed. Nov. 19, 2002) (statement of Sen. Harkin), 2002 WL 31600115. Permitting assets to
be blocked under OFAC regulations but not attached by victims of terror holding valid
judgments would frustrate Congress’ purpose of “deal[ing] comprehensively with the problem of
enforcement of judgments issued to victims of terrorism.” H.R. Rep. No.107-779, at 27 (2002),
reprinted in 2002 U.S.C.C.A.N. 1430, 1434; see also Hausler II, 845 F.Supp.2d at 563 (holding
that TRIA represents “Congress’s recognition that federal law must provide the substantive rules
governing the recovery of terrorism related judgments”).
Here, there is no dispute that the Judgment Creditors are victims of terror holding valid
judgments against Iran. (See J. Creditors’ 56.1 Stmnt. ¶¶ 16-32.) There is also no dispute that the
Banks are in possession of assets blocked pursuant to OFAC regulations. (See id. ¶ 33; see also
Citibank N.A.’s Resp. to J. Creditors’ 56.1 Statement (“Citibank’s 56.1 Stmnt.”) ¶ 33, ECF No.
814; JPMorgan’s Resp. to J. Creditors’ 56.1 Statement (“JPMorgan’s 56.1 Stmnt.”) ¶ 33, ECF
No. 807; BNYM’s Resp. to J. Creditors’ 56.1 Statement (“BNYM’s 56.1 Stmnt.”) ¶ 33, ECF No.
808.) The Banks argue, however, that permitting execution of judgments on these blocked assets
would lead to unfair burdens on innocent third parties, who have only the most attenuated
connection to Iran. (See, e.g., JPMorgan Opp. at 3-6.) The Court has given all potentially
interested parties the opportunity to appear and make this argument themselves, (see Mechling
Decl., Exs. 1, 24-27, 29) though not all district courts considering similar attachment actions
respect to the TRIA should be considered suspect, given that Congress’ passage of TRIA was over the objection of
the Executive Branch and for the purpose of rendering blocked assets attachable. See In re Islamic Republic of Iran
Terrorism Litig., 659 F.Supp.2d 31, 58 (“[T]he TRIA appears to represent something of a victory for these terrorism
victims – whose interests have been most vigorously advanced by members of Congress – over the longstanding
objections of the Executive Branch.”).
14
have chosen to do so, compare Calderon-Cardona, 867 F.Supp.2d at 393 (ruling on the question
of whether EFTs were attachable before providing notice to potentially interested third parties)
and Heiser, 885 F.Supp.2d at 434, 449 (same) with Levin I, 2011 WL 812032 at *18-19 (noting
previous entry of an order authorizing third-party interpleader complaints against assets in
controversy). See also Gates v. Syrian Arab Republic, Nos. 11 C 8715, 11 C 8913, 12 C 1836, 12
C 2983, 2013 WL 1337223, at *10 (N.D. Ill. Mar. 29, 2013) (declining to resolve which parties
had an ownership interest in EFTs without first interpleading interested parties, noting that “the
best way to determine the details of the transition of the funds at issue in this case is to notify
those who may be involved in the transit…and provide them an opportunity to appear and object
to any turnover of the funds”).
Of all those interpleaded, only six commercial third-party Defendants who were parties to
the wire transfers at issue have responded to this action. (See Mechling Decl., Exs. 24-27.) Of
those, only one has sought a license from OFAC. (See Letter from [REDACTED] 1, Apr. 15,
2013 (notifying the Court that [REDACTED] has a pending application before OFAC for a
license releasing the blocked funds transferred to the [REDACTED] from [REDACTED]).) This
Court is satisfied that all those with potential interests in Phase Two Blocked Assets have been
given notice in this case and, provided that the entities involved are “agencies or
instrumentalities of Iran,” as addressed below, their assets should be attachable by valid
judgment holders under TRIA § 201(a).
The interpretation of TRIA § 201(a) advanced by the Banks is divorced both from the
context of the OFAC regulations and from the remedial purpose of the statute. Arguing that the
phrase “of that terrorist party” requires ownership of the asset as defined by New York state law,
the Banks rely on “the usual rule in judgment enforcing proceedings,” (JPMorgan Opp. at 7
15
(citing 30 AM. JUR. 2D Executions § 120 (2013))), and on the Stanford Court’s statement that
“the use of the word ‘of’ denotes ownership” (JPMorgan Opp. at 7 (citing Stanford, 131 S. Ct. at
2196)). See also Calderon-Cardona, 867 F.Supp.2d at 399-400 (citing Stanford in its holding that
TRIA requires an ownership interest as defined by New York state law); Heiser, 885 F.Supp. 2d
at 438 (looking to the historical common law of judgment liens in its interpretation of TRIA).
However, by overlooking the purpose of TRIA and the implementing regulations to which the
statute refers, the Banks advance an approach that “is inconsistent with the Supreme Court’s
focus on the pertinent federal statutory context in Stanford.” Hausler II, 845 F. Supp. 2d at 568.
Finally, the Bank’s interpretation is not necessary to give meaning to the phrase “blocked
assets of that terrorist party.” As Judge Marrero of this District explained, TRIA is broad in
scope, encompassing various terrorist entities and blocking regulations. Therefore, the phrase “of
that terrorist party” provides “the necessary, though perhaps perfunctory, instruction that the
‘blocked assets’ available for execution are only those assets blocked pursuant to the particular
regulation or administrative action directed at the particular terrorist-party judgment debtor.”
Hausler II, 845 F. Supp. 2d at 567.
ii. EFTs Are Subject To Attachment Under TRIA § 201(a) and FSIA § 1610(g)
Upon a review of the case law decided after this Court’s Phase One Opinion, this Court
does not find any “cogent” or “compelling” reasons, Johnson, 564 F.3d at 99-100, to revisit its
prior holding that TRIA preempts state law. More specifically, there has been no intervening
change in law that alters this Court’s holding that the phrase “blocked assets of that terrorist
party,” when read within the statutory context of TRIA, “indicate[s] that Congress intended all
blocked assets be available for attachment by victims of terror.” Levin I, 2011 WL 812032, at
16
*18. This Court therefore finds, as it did in its Phase One Opinion, that blocked EFTs held by
intermediary banks are subject to execution under TRIA.
Given the fact that blocked EFTs held by intermediary banks are subject to execution
under TRIA, the Court need not address whether FSIA § 1610(g) 10 would independently provide
a basis for preemption of state law and execution of blocked EFTs. It should be noted, however,
that FSIA § 1610(g) does not mandate a different result than the one reached here. In fact, the
two statutes should be read together, and “reading TRIA § 201 and FSIA § 1610(g) in
conjunction with the entire FSIA and the 2008 NDAA amendments shows that Congress
10
28 U.S.C. § 1610(g) provides:
(g) Property in certain actions.-(1) In general.--Subject to paragraph (3), the property of a foreign state against which a
judgment is entered under section 1605A, and the property of an agency or instrumentality of
such a state, including property that is a separate juridical entity or is an interest held directly
or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and
execution, upon that judgment as provided in this section, regardless of-(A) the level of economic control over the property by the government of the foreign
state;
(B) whether the profits of the property go to that government;
(C) the degree to which officials of that government manage the property or otherwise
control its daily affairs;
(D) whether that government is the sole beneficiary in interest of the property; or
(E) whether establishing the property as a separate entity would entitle the foreign state
to benefits in United States courts while avoiding its obligations.
(2) United States sovereign immunity inapplicable.--Any property of a foreign state, or agency
or instrumentality of a foreign state, to which paragraph (1) applies shall not be immune from
attachment in aid of execution, or execution, upon a judgment entered under section 1605A
because the property is regulated by the United States Government by reason of action taken
against that foreign state under the Trading With the Enemy Act or the International
Emergency Economic Powers Act.
(3) Third-party joint property holders.--Nothing in this subsection shall be construed to
supersede the authority of a court to prevent appropriately the impairment of an interest held
by a person who is not liable in the action giving rise to a judgment in property subject to
attachment in aid of execution, or execution, upon such judgment.
28 U.S.C. § 1610.
17
intended to create a harmonious whole.”11 Heiser, 885 F.Supp.2d at 445. See also Levin I, 2011
WL 812032 at *10 (considering both the pre- and post-2008 versions of the FSIA and noting that
TRIA is codified as a note to FSIA §1610, and must be read in the context of the overarching
statutory scheme of the FSIA). Reading the two statutes together and in the context of the larger
statutory scheme, the Court affirms its Phase One Opinion holding that blocked EFTs held by
intermediary banks are subject to execution.
iii. Whether Phase Two Assets Are Assets or Property of an Agency or
Instrumentality of Iran
In order for the Phase Two Blocked Assets to be subject to attachment and turnover, the
Judgment Creditors’ motion must comply with C.P.L.R. § 5225(b), as required by Federal Rule
of Civil Procedure 69. To be entitled to turnover of the assets, the Judgment Creditors must have
provided sufficient evidence to prove that the entities whose assets have been blocked are
“agencies and instrumentalities of Iran,” as defined by 28 U.S.C. § 1603(b), and that those
entities are entitled to the possession of these funds, but for the blocked nature of the assets.12
11
FSIA §1610(g) was one of a series of amendments made to the FSIA in 2008 after Congress enacted TRIA in
2002; the 2008 amendments revised the immunity provisions related to terrorist states, created an express cause of
action against state sponsors of terrorism that engaged in terrorist acts, and created FSIA § 1610(g), the execution
provision. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181 § 1083(a)(1) &
(b)(3)(D) (2008) (codified at 28 U.S.C. §§ 1605A & 1610(g)). In relevant part, FSIA § 1610(g) permits judgment
creditors holding judgments entered under § 1605A, as the Judgment Creditors in this action are, to attach “the
property of a foreign state against which a judgment is entered…and the property of an agency or instrumentality of
such a state.”
12
28 U.S.C. § 1603(b) provides:
For the purposes of this charter…
(b) An “agency or instrumentality of a foreign state” means any entity-(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose
shares or other ownership interest is owned by a foreign state or political subdivision thereof,
and
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and
(e) of this title, nor created under the laws of any third country.
18
See Levin I, 2011 WL 812032, at *18 (citing Weininger v. Castro, 462 F.Supp.2d 457, 499
(S.D.N.Y. 2006)).
Neither the Banks nor any of the commercial third-party Defendants have presented
evidence to suggest that the entities discussed below are not agencies or instrumentalities of Iran.
(See Decl. of Kelly Nevling in Supp. of JPMorgan’s Resp. to Phase Two Mot. (“Nevling
JPMorgan Decl.”) ¶¶ 11-32, Oct. 15, 2012, ECF No. 805 (contesting whether entities were
sufficiently connected to blocked assets, but not contesting their presence on the SDN List);
Decl. of Kelly Nevling in Supp. of BNYM’s Resp. to Phase Two Mot. (“Nevling BNYM Decl.”)
¶¶ 8-20, Oct. 15, 2012, ECF No. 806 (same).) However, as the Judgment Creditors are the
moving party, they bear the burden of presenting sufficient evidence to demonstrate that there is
no issue of material fact as to the availability of these assets for turnover. See Levin I, 2011 WL
812032, at *19 (citing Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995)).
As they did in the Phase One Opinion, the Judgment Creditors rely heavily on an
affidavit presented by Dr. Patrick Clawson, a Deputy Director for Research of the Washington
Institute for Near East Policy. (See Aff. of Dr. Patrick Clawson (“Clawson Aff.”) ¶ 2, Aug. 29,
2012, ECF No. 763.) This Court noted in its Phase One Opinion that “Dr. Clawson has
extensive experience researching and consulting with government officials about Iran, and has
published several books on the subject,” and, therefore, the Court accepted Dr. Clawson’s
expertise in this area. Levin I, 2011 WL 812032 at *19. In examining the evidence presented by
the Judgment Creditors here, the Court similarly accepts Dr. Clawson as an expert.
28 U.S.C. § 1603.
19
1. Citibank Phase Two Blocked Assets
The Judgment Creditors seek a turnover of twenty-three blocked assets held by Citibank
(the “Citibank Phase Two Blocked Assets”). (See Mechling Decl., Ex. 24.) Citibank does not
contest that the entities party to these transfers are agencies and instrumentalities of Iran. (See
Citibank’s 56.1 Stmnt ¶ 66 (“Citibank lacks information sufficient to respond to this assertion of
undisputed material fact and refers the Court to the relevant paragraphs in the Clawson
Affidavit.”).) These assets include wire transfers in which the following entities were the
ordering customer, remitter’s bank, beneficiary’s bank, or the beneficiary: (a) [REDACTED]; (b)
[REDACTED]; (c) [REDACTED]; (d) [REDACTED]; (e) [REDACTED]; (f) [REDACTED];
(g) [REDACTED]; (h) [REDACTED]; (i) [REDACTED]; and (j) [REDACTED]. (See Phase
Two Mot. at 17-18; Mechling Decl. Ex. 24.)
Of these entities, this Court has already held that [REDACTED] and [REDACTED] are
agencies and instrumentalities of Iran, and that holding is affirmed here. See Levin I, 2011 2011
WL 812032 at *19-20. Of the remaining banking entities, Dr. Clawson states that
[REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; and
[REDACTED] are all owned by Iran, are national banks of Iran, are controlled by Iran, are
agencies or instrumentalities of Iran, or are alter-egos of Iran. (See Clawson Aff. ¶¶ 24, 27, 32,
33, 35, 36.) This contention is supported by, and the Court has independently verified, the fact
that each bank is on the SDN List maintained by OFAC and is designated for sanctions. See
generally SDN List, supra note 6 (listing [REDACTED] as subject to sanctions).
Further, according to Dr. Clawson’s affidavit, [REDACTED] is a wholly owned
subsidiary of [REDACTED], which is an agency or instrumentality of Iran, controlled by Iran,
owned by Iran, or an alter-ego of Iran. (See Clawson Aff. ¶ 29.) To support this contention, Dr.
20
Clawson refers to the SDN List as well as a press release from the Treasury Department
available online. See SDN List, supra note 6; see also Press Release, Major Iranian Shipping
Company Designated for Proliferation Activity, U.S. Treasury Department (Sep. 10, 2009),
available at http://www.treasury.gov/press-center/press-releases/pages/hp1130.aspx.
Finally, according to Dr. Clawson’s affidavit, it is common knowledge among experts in
international banking and commerce that [REDACTED] is owned by Iran, is controlled by Iran,
is an agency or instrumentality of Iran, or is an alter ego of Iran. (See Clawson Aff. ¶34.)
Further, the wire transfer to which [REDACTED] was the intended beneficiary, Citibank transfer
number four, also included [REDACTED] as a party to the transfer, acting as the intended
beneficiary bank. (See Mechling Decl. Ex. 24.) As discussed above, [REDACTED] is also an
agency or instrumentality of Iran, listed on OFAC’s SDN List and is subject to blocking
sanctions. (See Clawson Aff. ¶ 27.)
This Court finds that the Judgment Creditors have presented sufficient evidence, through
the affidavit of their expert, Dr. Clawson, and independently-verifiable online resources, that the
entities associated with the Citibank Phase Two Blocked Assets are agencies and
instrumentalities of Iran sufficient to meet the requirements of 28 U.S.C. § 1603(b).
2. JPMorgan Phase Two Blocked Assets
The Judgment Creditors seek a turnover of twenty-two blocked assets held by JPMorgan
(the “JPMorgan Phase Two Blocked Assets”). (See Mechling Decl., Ex. 26.) JPMorgan has not
presented any evidence to contest the Judgment Creditor’s assertion that the entities involved are
agencies and instrumentalities of Iran, (see JPMorgan’s 56.1 Stmnt. ¶ 66 (“The Court must
determine whether the Moving Parties have satisfied their burden of proof with respect to these
allegations.”)), instead arguing primarily that the parties to the EFTs did not exert a sufficient
21
ownership interest over blocked assets to render them attachable, arguments that the Court
addressed above (see Nevling JPMorgan Decl. ¶¶ 11-32). These assets include deposit accounts
and wire transfers in which the following entities were designated to be the ordering customer,
remitter’s bank, beneficiary’s bank, the beneficiary, or another entity involved in the transfer: (a)
[REDACTED]; (b) [REDACTED]; (c) [REDACTED]; (d) [REDACTED]; (e) [REDACTED];
(f) [REDACTED]; (g) [REDACTED]; (h) [REDACTED]; (i) [REDACTED]; (j) [REDACTED];
and (k) [REDACTED]. (See Phase Two Mot. at 18; Mechling Decl. Ex. 26.)
Of the entities affiliated with the JPMorgan Phase Two Blocked Assets, four have already
been held by this Court to be agencies or instrumentalities of Iran: [REDACTED]. See Levin I,
2011 2011 WL 812032 at *19-20. That holding is affirmed here. In considering the Citibank
Phase Two Assets, above, this Court found that sufficient evidence had been presented to show
that [REDACTED] are agencies and instrumentalities of Iran for the purposes of 28 U.S.C.
§ 1603(b), and that finding extends to the JPMorgan Phase Two Blocked Assets in which those
parties have an interest.
According to Dr. Clawson’s affidavit, it is common knowledge among experts in
international banking and commerce, and it is his expert opinion, that [REDACTED]13,
[REDACTED], are all owned by Iran, controlled by Iran, are agencies or instrumentalities of
Iran, or are alter-egos of Iran. (See Clawson Aff. ¶¶ 23, 30, 31, 38.) In support of this contention,
Dr. Clawson refers to the SDN List, which, as has been independently verified by the Court, lists
those entities as subject to OFAC sanctions. See generally SDN List, supra note 6 (listing
[REDACTED] as subject to sanctions).
[REDACTED] is not mentioned in Dr. Clawson’s affidavit. Though an independent
search shows that [REDACTED] was added to OFAC’s SDN List on December 2, 2010, that
13
[REDACTED]
22
evidence was not presented to the Court by the Judgment Creditors. See Press Release, U.S.
Treasury Dep’t, Recent OFAC Actions-December 2, 2010, (Dec. 2, 2010), available at
http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20101202.aspx.
However, JPMorgan transfer thirteen, the transfer for which [REDACTED] was the crediting
bank, also had as a party to the transfer the [REDACTED], which was the beneficiary’s bank.
(See Mechling Decl., Ex. 26.) As discussed above, [REDACTED] is found on the SDN List and
described by Dr. Clawson as an agency or instrumentality of Iran. (See Clawson Aff. ¶ 23.)
Thus, the Judgment Creditors have presented sufficient evidence to show that an agency or
instrumentality of Iran is a party to wire transfer thirteen.
This Court therefore finds that the Judgment Creditors have presented sufficient
evidence, through the affidavit of their expert, Dr. Clawson, and independently-verifiable online
resources, that the entities associated with the JPMorgan Phase Two Blocked Assets are agencies
and instrumentalities of Iran sufficient to meet the requirements of 28 U.S.C. § 1603(b).
3. BNYM Phase Two Blocked Assets
The Judgment Creditors seek a turnover of twelve blocked assets held by BNYM (the
“BNYM Phase Two Blocked Assets”). (See Mechling Decl. Ex. 25.) BNYM has not presented
any evidence to contest the Judgment Creditor’s assertion that the entities involved are agencies
and instrumentalities of Iran, (see BNYM’s 56.1 Stmnt. ¶ 66 (“The Court must determine
whether the Moving Parties have satisfied their burden of proof with respect to these
allegations.”)), instead arguing primarily that the parties to the EFTs did not exert a sufficient
ownership interest over blocked assets to render them attachable, arguments that the Court
addressed above (see Nevling BNYM Decl. ¶¶ 8-20). These assets include wire transfers in
which the following entities were the ordering customer, remitter’s bank, beneficiary’s bank, the
23
beneficiary, or another entity involved in the transfer: (a) [REDACTED]; (b) [REDACTED]; (c)
[REDACTED]; (d) [REDACTED]; (e) [REDACTED]; (f) [REDACTED]; and (g)
[REDACTED]. (See Phase Two Mot. at 18; Mechling Decl. Ex. 25.)
Of the entities affiliated with the BNYM Phase Two Blocked Assets, three have already
been held by this Court to be agencies or instrumentalities of Iran: [REDACTED]. See Levin I,
2011 2011 WL 812032 at *19-20. That holding is affirmed here. In considering the Citibank
Phase Two Assets, above, this Court found that sufficient evidence had been presented to show
that [REDACTED] are agencies and instrumentalities of Iran for the purposes of 28 U.S.C.
§ 1603(b), and that finding extends to the BNYM Phase Two Blocked Assets in which those
parties have an interest.
According to Dr. Clawson’s affidavit, it is common knowledge among experts in
international banking and commerce, and it is his expert opinion, that [REDACTED] is owned
by Iran, controlled by Iran, is an agency or instrumentality of Iran, or is an alter-ego of Iran. (See
Clawson Aff. ¶ 28.) In support of his opinion, Dr. Clawson cites the SDN List and another online
resource, both of which have been independently verified by the Court. See SDN List, supra note
6 (listing [REDACTED] as subject to sanctions); see also Wisconsin Project on Nuclear Arms
Control, Featured Iranian Entities: [REDACTED], IRAN WATCH (Last Modified Sept. 3, 2010)
[REDACTED] (discussing the American sanctions to which [REDACTED] is subject and the
UN resolutions discussing the entity’s attempts to evade sanctions).
Dr. Clawson’s affidavit does not discuss [REDACTED], which was a party to BNYM
blocked transfer number six. (See Mechling Decl. Ex. 25 (listing [REDACTED] as “other entity
involved”).) Though [REDACTED] is listed as subject to secondary sanctions on OFAC’s SDN
List, such evidence was not presented by the Judgment Creditors. See SDN List, supra note 6.
24
However, the Judgment Creditors do present evidence with respect to an entity that was also
party to transfer number six as the intended beneficiary of the transfer, [REDACTED]. (See
Mechling Decl. Ex. 25.) According to Dr. Clawson’s affidavit [REDACTED] is owned by Iran,
controlled by Iran, is an agency or instrumentality of Iran, or is an alter-ego of Iran. (See
Clawson Aff. ¶ 37.) As the Court has independently verified, [REDACTED] is on the SDN List.
See SDN List, supra note 6 (listing [REDACTED] as subject to secondary sanctions). Therefore,
the Judgment Creditors have presented sufficient evidence to show that an agency or
instrumentality of Iran is a party to wire transfer six.
This Court therefore finds that the Judgment Creditors have presented sufficient
evidence, through the affidavit of their expert, Dr. Clawson, and independently-verifiable online
resources, that the entities associated with the BNYM Phase Two Blocked Assets are agencies
and instrumentalities of Iran sufficient to meet the requirements of 28 U.S.C. § 1603(b).
4. SoGen Phase Two Blocked Assets
The Judgment Creditors seek a turnover of three blocked assets held by SoGen (the
“SoGen Phase Two Blocked Assets”). (See Phase Two Mot. at 19.) One asset comprises the
proceeds of one blocked deposit account held in the name of [REDACTED]. (See id.; Mechling
Decl., Ex. 27.) The other two assets are blocked EFTs to which [REDACTED], respectively,
were parties. (See Mechling Decl., Ex. 27.) SoGen took no position on the ownership of any of
the Phase Two Blocked Assets, and did not oppose the Judgment Creditors’ motion for turnover.
(See SoGen Opp. at 1.)
This Court held, in its Phase One Opinion, that [REDACTED] are agencies or
instrumentalities of Iran. See Levin I, 2011 2011 WL 812032 at *19-20. That holding is affirmed
here. Further, in Dr. Clawson’s expert opinion, [REDACTED] is a national bank of Iran and an
25
agency or instrumentality of Iran. (See Clawson Aff. ¶ 26). [REDACTED] is also on OFAC’s
SDN List, a fact that has been independently verified by the Court. See SDN List, supra note 6
(listing all offices of [REDACTED] worldwide as subject to secondary sanctions).
This Court therefore finds that the Judgment Creditors have presented sufficient
evidence, through the affidavit of their expert, Dr. Clawson, and independently-verifiable online
resources, that the entities associated with the SoGen Phase Two Blocked Assets are agencies
and instrumentalities of Iran sufficient to meet the requirements of 28 U.S.C. § 1603(b).
In sum, given the evidence presented by Judgment Creditors, the record demonstrates that
the entities that were party to EFT transfers or deposit accounts which comprise the Phase Two
Blocked Assets are agencies or instrumentalities of Iran as defined by 28 U.S.C. § 1603(b). The
Court finds that the Judgment Creditors’ motion complies with C.P.L.R. § 5225(b), as required
by Federal Rule of Civil Procedure 69, and the Judgment Creditors are entitled to turnover of the
Phase Two Blocked Assets.
IV.
INTERESTS OF COMMERCIAL THIRD-PARTY DEFENDANTS
Given that, under TRIA and FSIA § 1610(g), Phase Two Blocked Assets are subject to
attachment, the next issue to address is the conflict between asserted ownership interests of
commercial third-party defendants and claims asserted by the Judgment Creditors. 14 In this case,
the commercial third-party Defendants have not presented an interest in the Phase Two Blocked
Assets, cognizable under TRIA and FSIA § 1610(g), which is superior to that of the Judgment
Creditors. Therefore, the Judgment Creditors hold the superior interest to the Phase Two Blocked
Assets.
14
The Levins, Greenbaum, Acosta, and Heiser Judgment Creditors have entered into a confidential settlement
agreement resolving their dispute regarding priority, as between them, to the Blocked Assets at issue in this matter
and providing for the distribution of proceeds therefrom. (See Mechling Decl. ¶ 38.)
26
The objective of the TRIA “is to give terrorist victims who actually receive favorable
judgments a right to execute against assets that would otherwise be blocked.” Smith ex rel.
Estate of Smith v. Federal Reserve Bank of New York, 346 F.3d 264, 271 (2d Cir. 2003). Thus,
“any evaluation under the TRIA of the priority of interests in the [Phase Two Blocked Assets]
must begin with the understanding that ‘terrorist victims’ holding judgments, as a group, must be
first in line.” Hausler II, 845 F.Supp.2d at 569.
Further, this Court’s Phase One Opinion held that FSIA § 1610(c) provides the procedure
to be followed by plaintiffs seeking to execute or attach the property of a foreign sovereign or an
agency or instrumentality of a foreign sovereign. Levin I, 2011 WL 812032 at *7. Here, the
Judgment Creditors hold valid writs of execution in compliance with the procedural requirements
of § 1610(c). (See Mechling Decl. Exs. 3-4, 6-7, 9-10, 12-13, 15-16, 20-23.)
By contrast, commercial parties asserting a claim to blocked assets pursuant to the
statutory scheme of TRIA and FSIA § 1610 are not given priority over terrorism victims holding
valid judgments in attachment proceedings. Rather, the proper avenue for redress for commercial
third-party Defendants is through OFAC’s administrative procedures. See 31 C.F.R. § 501.806
(specifying “procedures for unblocking funds believed to have been blocked due to mistaken
identity”); Hausler II, 845 F.Supp.2d at 570 (noting that “Congress drafted the TRIA against the
backdrop of statutory and regulatory provisions… which require licenses to unblock; this
restriction suggests that the TRIA should be read in consideration of these alternative
opportunities for parties without terrorism-related judgments to assert interests in blocked
assets”). If parties dispute OFAC decisions, they may seek judicial review. See id. at 570 (citing
Zarmach Oil Services v. U.S. Dep’t of the Treasury, 750 F.Supp.2d 150 (D.D.C. 2010)).
27
Further, granting terrorism victims priority of interest over third parties claiming an
ownership interest in blocked assets is consistent with the purpose of the TRIA. The TRIA was
implemented in order to “punish and impose a heavy cost on those aiding and abetting the
terrorists.” 148 Cong. Rec. S11524-01 (daily ed. Nov. 19, 2002) (statement of Sen. Harkin),
2002 WL 31600115. It would undermine that purpose if, without successful utilization of
OFAC’s administrative procedures, “foreign banks doing business with the instrumentalities of a
terrorist state were found to have a superior interest in the frozen assets as compared to that of a
holder of a judgment against that very terrorist state.” Hausler II, 845 F.Supp.2d at 570.
Here, six commercial third-party Defendants have asserted a claim to the EFTs to which
they were parties.15 All of the commercial third-party Defendants were party to wire transfers
that were blocked by OFAC because one of the parties to the transfer was on the SDN list. The
proper recourse for these commercial third-party Defendants is through OFAC administrative
procedures.16 Of those six, only two third-party Defendants have demonstrated an intent to seek
15
Three commercial third-party Defendants named in the Citibank third-party complaint – the [REDACTED] – have
asserted claims to the proceeds of EFTs to which each was a party. (See [REDACTED]) One commercial third-party
defendant named in the BNYM third-party complaint – [REDACTED]– asserted a claim to the wire to which it was
a party. (See Answer to Am. & Supplemental Third-Party Compl. Of BNYM (“[REDACTED]”), ECF No. 521.)
Two commercial third-party defendants named in the JPMorgan third-party complaint – CB, whose arguments are
addressed above, and [REDACTED] – asserted a claim to the wires to which they were parties. (See Central Bank of
[REDACTED] Answer to Additional Am. Third-Party Compl. of JPMorgan Chase Parties (“CB Answer”), ECF No.
655; Mechling Decl., Ex. 26 (referencing a Jan. 22, 2012 letter submitted to counsel from [REDACTED] asserting a
claim).)
16
CB argues that its blocked transfer is distinguishable from the other EFTs considered here because its transfer
was blocked after CB sent a payment order to JPMorgan, where CB’s deposit account was located, but before the
transfer reached an intermediary bank. (See CB Opp. at 12.) The beneficiary bank to which the transfer was directed
was Export Development Bank of Iran, an entity whose assets are blocked by OFAC. (See Decl. of Richard L.
Pollock ¶ 6 (“Pollock Decl.”), Oct. 15, 2012, ECF No. 802.) Upon discovering that a party to the transfer was
subject to OFAC blocking regulations, JPMorgan was legally required to transfer the funds to a blocked account.
See 31 C.F.R. § 544.203. To the extent that CB contests that the transfer was improperly blocked by OFAC, the
proper procedure is to apply for a license from OFAC. Although CB has stated that it “intends” to seek such a
license, there is no evidence before this Court that it has actually done so. (See Adaramewa Decl. ¶ 11.) Until such
time as OFAC grants such a license, there is no reason to doubt that the assets were properly blocked in accordance
with OFAC blocking regulations. Since this Court affirms its Phase One Opinion holding that TRIA § 201(a)
“indicate[s] that Congress intended all blocked assets be available for attachment by victims of terror,” CB’s assets
are properly considered as subject to attachment here. Levin I, 2011 WL 812032, at *18.
28
an unblocking of assets through the requisite OFAC procedures, and only one has actually done
so. (Compare Adaramewa Decl. ¶ 11 (stating that the CB intends to apply to the Office of
Foreign Assets Control for a license authorizing the release of blocked funds), with Letter from
[REDACTED] 1, Apr. 15, 2013 (notifying the Court that the [REDACTED] has a pending
application before OFAC for a license releasing the blocked funds transferred to [REDACTED]).
The inclusion in this Order of funds pending before OFAC is conditioned upon the denial of the
OFAC license.
Because the Judgment Creditors are holders of valid judgments eligible for execution
under the TRIA, the Judgment Creditors’ joint interest is superior to the interests of commercial
third-party Defendants who have not resorted to OFAC regulatory procedures.
A. Whether the Central Bank Assets Are Immune from Execution
CB opposes this summary judgment motion with respect to one blocked transfer in the
amount of $342,978.23. (See CB Opp. at 5.) On August 31, 2009, CB directed JPMorgan to
implement a wire transfer in the amount of €233,716.00 to an Iranian engineering firm with an
account at [REDACTED]. (See Decl. of Kamorudeen Olusuyi Adaramewa ¶ 7, (“Adaramewa
Decl.”), Oct. 15, 2012, ECF No. 800.) On September 17, 2009, in accordance with the payment
order, JPMorgan debited CB’s U.S. dollar deposit account in New York in the sum of
$342,978.23 and converted such funds to Euros at its U.K. branch for payment to the Iranian
recipient in accordance with CB’s instructions. (See Pollock Decl., Ex. A at p. 404-05.) On
September 18, 2009, the U.K. JPMorgan branch recognized that [REDACTED] was an entity
subject to OFAC blocking regulations, and the assets were transferred into a frozen account. See
31 C.F.R. § 544.203; (See Pollock Decl. ¶ 6.)
29
Here, CB contests the attachment of the blocked transfer. CB argues that, as a foreign
central bank, (see Adaramewa Decl. ¶ 2), its funds are immune from execution under FSIA
§ 1611(b)(1). CB argues that the central bank immunity provided by this section preempts TRIA
and FSIA § 1610(g). (See CB Opp. at 6-9.) CB’s argument fails. Even if CB’s assets did fall
under the protection of FSIA § 1611(b)(1), that immunity is overridden by the subsequently
enacted TRIA § 201(a).17 See Weininger, 462 F.Supp.2d at 457 (“TRIA, which was enacted later
in time than § 1611, overrides the immunity conferred in § 1611.”); Peterson v. Islamic Republic
of Iran, No. 10 CV 4518 (KBF), 2013 WL 1155576 (S.D.N.Y. Mar. 13, 2013) (“TRIA trumps
the central bank provision in 28 U.S.C. § 1611(b)(2).”); Gates, 2013 WL 1337223 .
i. The Interplay Between TRIA § 201 and 28 U.S.C. § 1611
The FSIA provides immunity from attachment and execution of property to the property
of a foreign central bank in FSIA § 1611(b)(1).18 That section provides exceptions to waivers of
sovereign immunity for foreign central banks “notwithstanding the provisions of section 1610 of
this chapter.” TRIA § 201(a), in turn, authorizes attachment of blocked assets of terrorist parties
“notwithstanding any other provision of law.” Because the TRIA was codified as a note to FSIA
17
Funds deposited in a bank in the United States may benefit from central bank immunity if the funds belong to a
foreign central bank and are held for the bank’s own account. NML Capital Ltd. v. Banco Central de la Republica
Argentina, 622 F.3d, 172, 194 (2d Cir. 2011), cert denied, 133 S. Ct. 23 (2012). Here, Judgment Creditors allege that
CB’s transfer may not benefit from central bank immunity because it was in transit to [REDACTED] when it was
blocked, (see Pollock Decl., Ex. A at p. 404-05), not sitting in the deposit account of CB, as CB alleges (see CB
Opp. at 12). There is no need to reach this issue here, because TRIA trumps central bank immunity in any event.
18
Section 1611(b)(1) of the FSIA states that:
(b) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state
shall be immune from attachment and from execution, if—
(1) the property is that of a foreign central bank or monetary authority held for its own account,
unless such bank or authority, or its parent foreign government, has explicitly waived its
immunity from attachment in aid of execution, or from execution, notwithstanding any
withdrawal of the waiver which the bank, authority or government may purport to effect
except in accordance with the terms of the waiver…
28 U.S.C.A. § 1611 (West).
30
§ 1610, CB argues that TRIA’s waiver of immunity is preempted by FSIA § 1611(b)(1). (See CB
Opp. at 9.) However, the TRIA waiver controls because of the broad language of TRIA’s
“notwithstanding” clause, the more recent enactment of the TRIA, and the remedial purpose of
the TRIA.
First, the TRIA uses broad language to preempt “any other provision of law,” while
§1611(b) applies narrowly to “the provisions of section 1610.” In this District, Weininger v.
Castro held that the TRIA’s broad language targets all statutory exceptions to immunity. See 462
F. Supp. 2d at 498 (“To the extent that a foreign country’s sovereign immunity potentially
conflicts with Section 201(a), the ‘notwithstanding’ phrase removes the potential conflict.”)
(quoting Smith ex rel Smith, 280 F. Supp. 2d. at 319); see also Peterson, 2013 WL 1155576 at *8
(“TRIA's broad language—‘notwithstanding any other provision of law ... in every case’—
provides one basis pursuant to which a separate ‘central bank’ analysis becomes unnecessary.”).
Further, to the extent TRIA § 201(a) conflicts with FSIA § 1611(b)(1), any conflict
should be resolved in favor of the TRIA because it was enacted after § 1611(b). See Weininger,
462 F.Supp.2d at 499. Congress is presumed to be aware of its previous enactments when it
passes a new statute. See Vimar Seguors y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528,
554 (1995) (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 696–699 (1999)). The TRIA's
“notwithstanding” clause—enacted in 2002, well after FSIA § 1611(b) was adopted in 1976—
thus preempts central bank immunity to the extent it would apply. See Peterson, 2013 WL
1155576 at *25; Weininger, 462 F.Supp.2d at 499; see also In re Ionosphere Clubs, Inc., 922
F.2d 984, 991 (2d Cir. 1990) (“[W]hen two statutes are in irreconcilable conflict, [courts] must
give effect to the most recently enacted statute since it is the most recent indication of
congressional intent.”)
31
Finally, providing an exception to attachment and execution for foreign central banks
would frustrate the remedial purpose of the TRIA. As discussed above, the purpose of the TRIA
is to “deal comprehensively with the problem of enforcement of judgments issued to victims of
terrorism.” Levin I, 2011 WL 812032 at *17 (internal citations omitted); see also Ministry of
Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366, 369
(2009) (noting that the TRIA authorizes “holders of terrorism related judgments against [a
terrorist state]…to attach [that state’s] assets that the United States has blocked”). CB’s
arguement that foreign central banks have an “absolute immunity,” (CB Opp. at 9), would leave
judgment creditors with valid judgments against state sponsors of terror without recourse if
assets happened to be held in the account of a foreign central bank, a result plainly inconsistent
with the remedial purpose of the statute.
The language of TRIA, the purpose of its enactment, and its subsequent enactment to
§ 1611(b)(1), all indicate that the TRIA waiver of immunity must control when the two
provisions are in conflict. Therefore, central bank immunity does not preempt TRIA and CB
funds cannot be considered absolutely immune under FSIA § 1611(b)(1).
V.
Whether the Judgment Creditors Are Entitled to Interest
The Code of Federal Regulations (“C.F.R.”) mandates that financial institutions holding
“blocked assets” must place those assets in “an interest-bearing account,” specifically “a blocked
account in a U.S. financial institution earning interest at rates that are commercially reasonable
for the amount of funds in the account.” 31 C.F.R. § 595.203(a)(1); § 595.203(b).
The Judgment Creditors contend that this provision obligated the Banks to hold the Phase
Two Blocked Assets in accounts that earned, “at a minimum, [interest] equal to rates being paid
by [the Banks] to other depositors on deposits or instruments of comparable size and maturity
32
from the date of blocking until” a disposition on those assets is reached. (See J. Creditors’
Stipulation To Issues Presented by Mot. Summ. J. 7.) The Judgment Creditors argue that they
are entitled to the payment of such interest, regardless of whether it was actually earned on the
Phase Two Blocked Assets. (Id.)
SoGen, with Citibank joining,19 argues that the “judgment creditors succeed only to rights
of their judgment debtor, and Iran, the judgment debtor here, has no claim for interest on blocked
accounts. Because Iran could not demand anything beyond the money that is actually in the
blocked accounts, neither can the judgment creditors.”20 (SoGen Opp. at 1-3 (citing Karaha
Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 83
(2d Cir. 2002) (holding that “a party seeking to enforce a judgment ‘stand[s] in the shoes of the
judgment debtor’” and “cannot ‘reach . . . assets in which the judgment debtor has no interest’”);
M.F. Hickey Co. v. Port of New York Auth., 258 N.Y.S.2d 129, 130 (1st Dep’t 1965); CPLR §
5225(b); § 5227.) SoGen argues that this same principle applies to garnishees, stating that “if a
judgment debtor could not bring a particular claim against a garnishee, then neither can its
creditors.” (Id. at 3 (citing United States v. First Nat’l City Bank, 321 F.2d 14, 19 (2d Cir.
1963); Smith v. Amherst Acres, Inc., 350 N.Y.S.2d 236 (4th Dep’t 1973).)
SoGen bases its argument on two flawed contentions: first, that Iran has no claim to the
interest that SoGen admits has been accruing on the blocked accounts; and second, that the
19
See note 4 supra.
20
Nevertheless, SoGen asserts that it “complies with OFAC regulations requiring payment of interest [on blocked
assets] at a ‘commercially reasonable’ rate” by paying interest on blocked accounts “on the same basis as . . . similar
commercial accounts.” (Id. at 2.) SoGen still contests the Judgment Creditors’ right to that interest, however. (Id.)
In addition, SoGen asserts that enforcing the Judgment Creditors’ demand for interest equal to what SoGen pays
“other depositors” would require “further fact and expert discovery and evidentiary hearings” that would be “an
extraordinary waste of judicial and party resources over, at most, a few thousand dollars.” (Id.) This argument is
one for the opposing parties to resolve between themselves.
33
Judgment Creditors’ interest demand is founded on an OFAC regulation, 31 C.F.R. § 595.203,
which does not create a private right of action for victims of terrorism to sue to obtain the interest
that OFAC mandates the garnishee banks accrue. As the Judgment Creditors correctly point out,
SoGen’s interpretation of the law renders the OFAC regulation meaningless: the garnishee banks
would be compelled to maintain blocked assets in interest-bearing accounts, but that interest
would accrue for no one’s benefit; neither the judgment debtor nor the judgment creditor would
have a right to sue for it. (See J. Creditors’ Reply 22, ECF No. 825.) There is nothing in the
underlying statutes or the regulations that indicates that the interest accumulation was intended to
benefit the banks instead of judgment creditor victims of terrorism.
VI.
CONCLUSION
For the reasons stated above, the Judgment Creditors’ motion for partial summary
judgment with respect to the Phase Two Blocked Assets is granted. The Banks are hereby
ordered to turn over the Phase Two Blocked Assets with accrued interest to the Judgment
Creditors in accordance with the protocol designated by the Judgment Creditors.
SO ORDERED.
Dated: New York, New York
September 19, 2013
_s/s_______________________________
Robert P. Patterson, Jr.
U.S.D.J.
Copies of this Order were sent by email to the following attorneys. All other counsel of
record notified by ECF:
Counsel for Plaintiffs:
Don Howarth
Howarth and Smith (LA)
523 West Sixth Street, Suite 728
Los Angeles, CA 90014
34
213-955-9400
Fax: 213-622-9400
Email: dhowarth@howarth-smith.com
Suzelle M Smith
Howarth and Smith (LA)
523 West Sixth Street, Suite 728
Los Angeles, CA 90014
212-955-9400
Fax: 213-622-0791
Email: ssmith@howarth-smith.com
Counsel for Defendants:
Howard B. Levi
Levi Lubarsky & Feigenbaum LLP
1185 Avenue of the Americas
17th Floor
New York, NY 10036
212-308-6100
Fax: 212-308-8830
Email: hlevi@llf-law.com
J. Kelley Nevling , Jr
Levi Lubarsky & Feigenbaum LLP
1185 Avenue of the Americas
17th Floor
New York, NY 10036
212-308-6100
Fax: 212-308-8830
Email: knevling@llf-law.com
Mark Hanchet
Mayer Brown LLP (NY)
1675 Broadway
New York, NY 10019
(212)506-2500 x2695
Fax: (212)262-1950
Email: mhanchet@mayerbrown.com
Christopher James Houpt
Mayer Brown LLP
1675 Broadway
New York, NY 10019
(212) 506-2380
Fax: (212) 849-5830
Email: choupt@mayerbrown.com
35
Christopher J. Robinson
Davis Wright Tremaine LLP (NYC)
1633 Broadway
New York, NY 10019
(212) 489-8230
Fax: (212) 489-8340
Email: chrisrobinson@dwt.com
Sharon L. Schneier
Davis Wright Tremaine LLP (NYC)
1633 Broadway
New York, NY 10019
(212) 489-8230
Fax: (212) 489-8340
Email: sharonschneier@dwt.com
Counsel for Third-Party Defendants:
Benjamin Weathers-Lowin
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
(212)-806-5614
Fax: (212)-806-2614
Email: bweatherslowin@stroock.com
Curtis Campbell Mechling
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212-806-5609
Fax: 212-806-2609
Email: cmechling@stroock.com
David H. Fromm
Brown Gavalas & Fromm LLP
355 Lexington Avenue
New York, NY 10017
212 983-8500
Fax: 212 983-5946
Email: dfromm@browngavalas.com
36
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