Alfandary et al v. Nikko Asset Management Co., Ltd. et al

Filing 165

ORDER granting in part and denying in part 137 Motion for Summary Judgment. For the foregoing reasons, Defendants' motion for summary judgment [dkt. no. 137] is GRANTED in part and DENIED in part. The Clerk of the Court shall close the open motion [dkt. no. 137]. Counsel shall confer and inform the Court by letter no later than April 13, 2022 how they propose to proceed. (Signed by Judge Loretta A. Preska on 3/30/2022) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTINA ALFANDARY, et al.,
Plaintiffs,

No. 17-CV-5137 (LAP)

-againstNIKKO ASSET MANAGEMENT CO., LTD.,

ORDER

Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Defendant Nikko Asset Management Co.
Ltd.’s (“NAM”) motion for summary judgment. 1

Defendant contends

that this Court lacks jurisdiction over NAM, 2 (Def.’s Br. at 3–
11), that venue is improper because the forum provisions of the
Award Notices 3 govern, (id. at 11–15), and that Defendant is

(See Defendant NAM’s Notice of Motion for Summary Judgment,
dated Apr. 1, 2021 [dkt. no. 137]; Defendant NAM’s Memorandum of
Law in Support of its Motion for Summary Judgment (“Def.’s
Br.”), dated Apr. 1, 2021 [dkt. no. 138]; Defendant NAM’s Reply
Memorandum of Law in Further Support of its Motion for Summary
Judgment (“Def.’s Reply Br.”), dated May 17, 2021 [dkt. no.
150].)
2 Specifically, Defendant argues that NAM is not subject to
specific personal jurisdiction for claims brought by the eleven
Plaintiffs who did not work for Nikko Asset Management Americas,
Inc. (“NAMA”) (the “Non-NAMA Plaintiffs”). (See Def.’s Br. at
6.) The parties do not dispute that the Non-NAMA Plaintiffs did
not work for NAMA. (See Plaintiffs’ Rule 56.1 Objections and
Counter-Statement (“CSF”), dated May 3, 2021 [dkt. no. 146]
¶¶ 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 51.)
3 It is undisputed that the four Plaintiffs who worked for NAMA
(the “NAMA Plaintiffs”) signed Award Notices in connection with
receiving Stock Acquisition Rights (“SARs”) pursuant to one or
more Stock Option Plans (the “Plans”) established by NAM. (See
CSF ¶¶ 54-55.)
1

1

entitled to summary judgment on Plaintiffs’ claims challenging
NAM’s extinguishment of Plaintiffs’ Stock Acquisition Rights
(“SARs”) based on NAM’s interpretation of the SARs’ Terms and
Conditions, (id. at 15–20).

Plaintiffs oppose the motion. 4

Detailed descriptions of the underlying facts have been set
forth in three prior Opinions.

(Opinion (“MTD Op.”), dated Oct.

4, 2018 [dkt. no. 52]; Opinion and Order (“Recons. Op.”), dated
June 19, 2019 [dkt. no. 78]; Opinion and Order, dated Sept. 30,
2019 [dkt. no. 79].)

Accordingly, the Court assumes the

parties’ familiarity with the facts and describes them only for
purposes of resolving the instant motion.

For the reasons

stated below, Defendant’s motion is GRANTED in part and DENIED
in part.
I.

Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the

“court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

“The movant bears the burden of demonstrating

the absence of a genuine dispute of fact, and, to award summary
judgment, the court must be able to find after drawing all

(See Plaintiffs’ Memorandum of Law in Opposition to Defendant’s
Motion for Summary Judgment (“Pls.’ Br.”), dated May 3, 2021
[dkt. no. 145].)
4

2

reasonable inferences in favor of a non-movant that no
reasonable trier of fact could find in favor of that party.”
Palmer/Kane LLC v. Rosen Book Works LLC, 204 F. Supp. 3d 565,
568 (S.D.N.Y. 2016) (citation and internal quotation marks
omitted).

Where the non-moving party bears the burden of proof

at trial, the moving party may discharge its summary judgment
burden in “two ways: (1) by submitting evidence that negates an
essential element of the non-moving party’s claim, or (2) by
demonstrating that the non-moving party’s evidence is
insufficient to establish an essential element of the non-moving
party’s claim.”

Nick’s Garage, Inc. v. Progressive Cas. Ins.

Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v. Smith,
850 F.2d 917, 924 (2d Cir. 1988)).
In assessing the record, the Court “must view the evidence
in the light most favorable to the [non-moving] party,” Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quotation marks omitted), and
“resolve all ambiguities and draw all reasonable inferences
against the movant,” Caronia v. Philip Morris USA, Inc., 715
F.3d 417, 427 (2d Cir. 2013).

At the same time, “the mere

existence of some alleged factual dispute” is not enough to
prevent summary judgment—the dispute must be material.
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

Anderson
A fact is

“material” if it “might affect the outcome of the suit under the
governing law.”

Id. at 248.

It is well settled that
3

“[c]redibility assessments, choices between conflicting versions
of the events, and the weighing of evidence are matters for the
jury, not for the court on a motion for summary judgment.”
Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003).
Finally, “conclusory statements or mere allegations are not
sufficient to defeat a summary judgment motion.”

Johnson v.

Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam)
(alterations omitted) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
II.

Discussion
a. In Personam Jurisdiction over NAM
i. General Jurisdiction Over NAM
Defendant contends that this Court should dismiss the Non-

NAMA Plaintiffs’ claims for lack of personal jurisdiction
because Defendant is not subject to general personal
jurisdiction before this Court.

(See Def.’s Br. at 4–6.)

Plaintiffs counter that because Judge Sweet and this Court have
decided this issue twice “on the basis of a nearly identical
factual and legal record,” the law of the case doctrine
forecloses Defendant’s argument.

(Pls.’ Br. at 3.)

Defendant

rebuts Plaintiffs’ position, contending that “rulings made on
motions to dismiss are [not] law of the case at summary
judgment” and that reconsideration is warranted because
(1) eight plaintiffs were added to the case and all federal
4

securities claims were dismissed after Judge Sweet denied
Defendants’ 5 motion to dismiss Plaintiffs’ First Amended
Complaint (“FAC”) on personal jurisdiction, and (2) extensive
discovery has occurred.

(See Def.’s Reply Br. at 1–2.)

As a threshold matter, the Court first determines whether
the law of the case doctrine applies.

“[W]here litigants have

once battled for the court’s decision, they should neither be
required, nor without good reason permitted, to battle for it
again.”

Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956

F.2d 1245, 1255 (2d Cir. 1992).

As such, a court generally will

not reconsider its prior ruling unless there is “an intervening
change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest
injustice.”

Id. (cleaned up).

However, “because of the

divergent standard of review applicable to motions to dismiss
and motions for summary judgment, the law of the case doctrine
is inapposite to the Court’s analysis of whether, after the
close of discovery, genuine issues of fact have been raised
which survive summary judgment.”

Bank Leumi USA v. Ehrlich, 98

F. Supp. 3d 637, 647 (S.D.N.Y. 2015) (cleaned up).

Given the

Whereas Plaintiffs sued NAM, Takumi Shibata (“Shibata”),
Sumitomo Mitsui Trust Bank, Limited (“SMTB”), and Sumitomo
Mitsui Trust Holdings, Inc. (“SMTH”) in the FAC, Plaintiffs only
sued NAM in the Second Amended Complaint (“SAC”). (See SAC,
dated Dec. 26, 2019 [dkt. no. 91].)
5

5

divergent standard of review at this stage, the Court agrees
with Defendant that the law of the case doctrine does not apply
to Defendant’s argument regarding general personal jurisdiction.
Thus, the Court next analyzes the parties’ arguments regarding
general personal jurisdiction based on the evidence revealed in
discovery.
Plaintiffs bear the burden of establishing that the Court
has personal jurisdiction over Defendant, Waldman v. Palestine
Liberation Org., 835 F.3d 317, 334 (2d Cir. 2016), 6 and “the
exercise of personal jurisdiction must comport with
constitutional due process principles.”
marks omitted).

Id. at 327 (quotation

To determine whether exercising jurisdiction

over a defendant is constitutionally permissible, the Court
considers (1) “whether the defendant has sufficient [minimum]
contacts with the forum state,” and (2) “whether the assertion
of personal jurisdiction [is reasonable in that it] comports
with ‘traditional notions of fair play and substantial
justice.’”

Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84

F.3d 560, 567–68 (2d Cir. 1996) (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).

See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194,
197 (2d Cir. 1990) (“After discovery, the plaintiff’s prima
facie showing . . . must include an averment of facts that, if
credited by the trier, would suffice to establish jurisdiction
over the defendant.”).
6

6

The minimum contacts requirement distinguishes between
specific and general jurisdiction.
567.

Metro. Life Ins., 84 F.3d at

Specific jurisdiction exists only when “the defendant has

purposefully directed his activities at residents of the forum,”
and the alleged injuries “arise out of or relate to those
activities.”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472

(1985) (internal quotation marks omitted).

General

jurisdiction, on the other hand, exists where the defendant’s
affiliations with the forum state are “so ‘continuous and
systematic’ as to render [it] essentially at home” in that
state. 7

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011) (quoting Int’l Shoe, 326 U.S. at 317); see
Daimler AG v. Bauman, 571 U.S. 117, 122 (2014).
While a corporation’s “paradigm bases for general
jurisdiction” are its place of incorporation and principal place
of business, Daimler, 571 U.S. at 137 (cleaned up), the Second
Circuit has identified another situation wherein a plaintiff may
establish general jurisdiction in accordance with N.Y. C.P.L.R.
§ 301: where a subsidiary corporation is a “mere department” of
its parent corporation.

See Volkswagenwerk Aktiengesellschaft

In other words, a court can exercise general jurisdiction over
a foreign corporation when “the continuous corporate operations
within a state [are] so substantial and of such a nature as to
justify suit against it on causes of action arising from
dealings entirely distinct from those activities.” Goodyear,
564 U.S. at 924 (quoting Int’l Shoe, 326 U.S. at 318).
7

7

v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984)
[hereinafter “Beech”].

Post-Daimler, a few courts in this

district have expressed doubts as to the applicability of the
mere department theory 8 because in Daimler, the Court rejected
the Ninth Circuit’s reliance on an agency theory to impute the
in-state subsidiary’s contacts to the parent corporation. 9

Other

courts in this district, however, have applied the theory to
facts substantially like those here 10 because the mere department
theory “is not exactly the same as the agency theory”—it “does
not consider the same factors or have the same requirements” and
“does not focus solely on whether the parent corporation would
See In re Aluminum Warehousing Antitrust Litig., 90 F. Supp. 3d
219, 227 (S.D.N.Y. 2015) (noting that the mere department theory
“has at the very least been called into doubt by Daimler”);
NYKCool A.B. v. Pac. Int’l Servs., Inc., 66 F. Supp. 3d 385, 393
(S.D.N.Y. 2014) (“[T]he Court in Daimler expressed some doubt
about the constitutionality of subjecting a company to general
jurisdiction under the mere department or agency theory.”).
9
“The Ninth Circuit’s agency finding rested primarily on its
observation that [the in-state subsidiary’s] services were
‘important’ to [the parent corporation], as gauged by [the
parent’s] hypothetical readiness to perform those services
itself if [the subsidiary] did not exist. . . . The inquiry into
importance . . . will always yield a pro-jurisdiction answer:
Anything a corporation does through [a] . . . subsidiary . . .
is presumably something that the corporation would do by other
means if the . . . subsidiary . . . did not exist.” Daimler,
571 U.S. at 135–36 (cleaned up).
10 See Int’l Diamond Importers, Inc. v. Med Art, Inc., No. 15-CV4045, 2017 WL 2839640, *2–*4 (S.D.N.Y. June 29, 2017)
(establishing general jurisdiction over defendant based on the
mere department theory); Mercer Health & Benefits LLC v.
DiGregorio, 307 F. Supp. 3d 326 (analyzing general jurisdiction
under the mere department theory but concluding, based on the
facts, that none of the four requirements were met).
8

8

perform the services if the subsidiary was absent from the
jurisdiction.”

Mercer Health, 307 F. Supp. 3d at 345.

Accordingly, the Court next considers whether the mere
department theory applies to impute NAMA’s New York contacts to
Defendant.
Whether a subsidiary is a mere department of its parent
corporation depends on four factors, i.e., the Beech test:
“1) common ownership; 2) financial dependence of the subsidiary
on the parent corporation; 3) the degree of interference in
personnel selection and a failure to observe corporate
formalities; and 4) the degree of control the parent corporation
wields over the subsidiary’s marketing and operational
policies.”

Int’l Diamond Importers, 2017 WL 2839640, *2 (citing

Beech, 751 F.2d at 120–22).

Common ownership is the “essential

factor,” whereas the other three factors “comprise a balancing
test.”

Yousef v. Al Jazeera Media Network, No. 16-cv-6416, 2018

WL 1665239, at *6 (S.D.N.Y. Mar. 22, 2018).
Plaintiffs argue that Defendant is subject to this Court’s
general jurisdiction because Defendant’s substantial degree of
control over NAMA makes NAMA a “mere department” of Defendant.
(See Pls.’ Br. at 5–6.)

When an in-state subsidiary is a “mere

department” of its foreign parent corporation, a court may
extend general jurisdiction over the parent corporation by
imputing to it the subsidiary’s forum state contacts.
9

See Int’l

Diamond Importers, 2017 WL 2839640, at *2; Mercer, 307 F. Supp.
3d at 343.

Here, because of NAMA’s “undisputed and systematic

contacts with [New York],” Plaintiffs contend that under the
“mere department” theory, such contacts “must be imputed to
NAM.”

(See Pls.’ Br. at 5.)

Defendant concedes that “NAMA’s

jurisdictional contacts may be imputed to [NAM].”
Reply Br. at 2–3.)

(See Def.’s

However, Defendant contends that imputation,

without more, is not enough to make NAMA a “mere department;”
instead, Defendant propounds a mere department-plus analysis.
(See id. at 3.)

The mere department-plus analysis requires not

only that the parent be “at home” in the relevant forum, but
also consideration “of the corporation’s in-state
activities . . . in the context of the entirety of the
corporation’s worldwide activities.” 11

(Id. at 3–4 (citing

Daimler, 571 U.S. at 138-39 and n.20).)

Defendant relies on the following facts to support this
argument: (1) Defendant is incorporated in Japan and has its
principal offices in Tokyo; (2) Defendant’s Board of Directors
and Executive Committee meet exclusively in Japan; (3) the
majority of Nikko Group employees are not based in the United
States, and 99% of its clients are non-United States-based
persons; and (4) in fiscal years 2009, 2017, and 2019, only 1%
of Nikko Group entities total net revenue was derived from the
United States. (See Def.’s Br. at 4–5.) These facts are
undisputed, (see CSF ¶¶ 11–16), except that Plaintiff argues
that Defendant’s assertion that “Nikko is incorporated in Japan
and has its principal place of business in Tokyo” “states a
legal conclusion as it relates to Nikko’s principal place of
business, not a factual contention, and is improper under Local
Rule 56.1(a),” (see id. ¶ 7).
11

10

Defendant’s proposed mere department-plus theory fails.
Cases post-Daimler have not required consideration of the
defendant-corporation’s in-state and worldwide activities. 12
Defendant only cites Daimler and Brown v. Lockheed Martin Corp.
to support its position.

(See Def.’s Br. at 5 (citing Daimler,

571 U.S. at 139 n.20; Brown v. Lockheed Martin Corp., 814 F.3d
619, 629 (2d Cir. 2016).)

However, in neither case did the

court engage in a mere department analysis.
Turning to the first factor of the Beech test, Defendant
and NAMA are commonly owned, in part, because NAMA is an
indirect wholly owned subsidiary of NAM. 13

Moreover, it is

undisputed not only that NAMA’s Form ADV lists NAMA’s New York
City office as “one of [NAM’s] branch offices or affiliates,”
but also that Defendant represented that NAM and NAMA are “under
common control.” 14 (RSF ¶ 186.)

Thus, the foregoing facts

indicate, at a minimum, “nearly identical ownership interests.”
See Int’l Diamond Importers, 2017 WL 2839640, at *3–*4 (internal
See Int’l Diamond Importers, 2017 WL 2839640, at *2–*4;
Mercer, 307 F. Supp. 3d at 343–46.
13 (See Defendant Nikko Asset Management Co., Ltd.’s Reply in
Support of its Local Rule 56.1 Statement of Facts and Response
to Plaintiffs’ Counter-Statement of Facts (“RSF”), dated May 17,
2021 [dkt. no. 151] ¶ 160.) Defendant does not dispute this fact
solely for purposes of NAM’s motion for summary judgment. (Id.;
see also Paysys Int’l, Inc. v. Atos SE, No. 14 Civ. 10105, 2015
WL 4533141, at *3 n.22 (S.D.N.Y. July 24, 2015) (common
ownership found where subsidiary was wholly owned by parent).)
14 Defendant does not dispute this fact solely for purposes of
NAM’s motion for summary judgment. (RSF ¶ 186.)
12

11

quotation marks omitted).

Accordingly, the Court finds that

Plaintiffs satisfied the first prong of the Beech test.
Turning to the second factor, it is undisputed that NAMA is
financially dependent on NAM. 15

The following facts, which

Defendant does not dispute for purposes of NAM’s motion for
summary judgment, indicate that NAMA would not be able to
function without NAM’s financial support: (1) “NAM is a
guarantor of the lease for NAMA’s office space in New York
City,” (RSF ¶ 161); (2) “NAMA’s largest source of revenue was
management fees from NAM,” (id. ¶ 165); (3) “NAM was NAMA’s
largest client for research services, and effectively dictated
the terms of any intercompany fee arrangement to NAMA,” (id.
¶ 166); (4) NAMA’s financial reporting practices were subject to
NAM’s control, (id. ¶ 184); and (5) “NAMA’s financial results
are consolidated into [NAM’s] financial statements,” (id.

A subsidiary is financially dependent on its parent
corporation if, among other things, “the parent provides a nointerest loan, or controls the subsidiary’s finances.” Int’l
Diamond Importers, 2017 WL 2839640, at *3; see Yousef, 2018 WL
1665239, at *7 (“Financial dependence for jurisdictional
purposes ‘requires not merely that the parent have some control
over the finances of the subsidiary, but that the subsidiary
would not be able to function without the financial support of
the parent.’” (quoting Reers v. Deutsche Bahn AG, 320 F. Supp.
2d 140, 157 (S.D.N.Y. 2004))).
15

12

¶ 186). 16

Accordingly, the Court finds that Plaintiffs satisfied

the second prong of the Beech test.
Regarding the third factor, the Court finds that Defendant
substantially interferes with NAMA’s selection of executive
personnel and fails to observe corporate formalities.

It is

undisputed that NAM directly controlled NAMA’s board of
directors, which effectively exercised no supervision or control
over NAMA, its employees, or its officers.

(Id. ¶ 181.)

Additionally, a “member of NAM’s board also serves as a director
of NAMA.”

17

(Id.)

It is also undisputed that (1) NAM’s Global

Executive Committee “advise[s] on and communicate[s] to Nikko
Group the strategy and priorities of the Group’s businesses in
Japan and internationally,” (CSF ¶ 12); and (2) NAM’s hiring
committee and global department heads in Tokyo controlled all of
NAMA’s hiring and firing decisions, (RSF ¶ 174).

Accordingly,

the Court finds that Plaintiffs satisfied the third prong of the
Beech test.
Finally, regarding the fourth factor, it is undisputed that
“[n]early all aspects of NAMA’s business operations were subject
See Int’l Diamond Importers, 2017 WL 2839640, at *3 (financial
dependence found where parent “funded [subsidiary’s] initial
capital investment,” “provided 99% of [subsidiary’s] products
for sale,” “earned profits from those sales,” and “regularly
reviewed [subsidiary’s] financial records” (cleaned up)).
17 See Int’l Diamond Importers, 2017 WL 2839640, at *3 (third
prong satisfied where the sole officer and director of the
parent was also the subsidiary’s CEO).
16

13

to control by NAM executives, who frequently made decisions for
NAMA in Japan with no input from NAMA executives in New York.” 18
(Id. ¶ 168.)

Further, NAMA’s Form ADV lists NAMA as “one of

[NAM’s] branch offices or affiliates.”
omitted).)

(Id. ¶ 186 (citation

As such, the Court finds that Plaintiffs satisfied

the fourth prong of the Beech test.

Accordingly, adopting the

“mere department” theory, this Court finds that NAMA is a “mere
department” of NAM such that subjecting NAM to general
jurisdiction in New York is constitutionally permissible.
Turning to the due process analysis, imputing NAMA’s New
York contacts to Defendant is reasonable in light of the
substantial nature of such contacts.

The Second Circuit

considers the following factors when analyzing “reasonableness”:
“(1) the burden that the exercise of jurisdiction will impose on
the defendant; (2) the interests of the forum state in
adjudicating the case; (3) the plaintiff’s interest in obtaining
convenient and effective relief; (4) the interstate judicial
system’s interest in obtaining the most efficient resolution of
the controversy; and (5) the shared interest of the states in
furthering substantive social policies.”

In re Aluminum, 90 F.

Each functional department at NAMA is required to “report to a
NAM global department head in Tokyo,” which also “controlled
every facet of NAMA’s actions.” (RSF ¶ 167). For example,
NAM’s Head of Compliance had to approve NAMA’s written
compliance manual before NAMA could adopt it. (Id. ¶ 185.)
18

14

Supp. 3d at 225 (internal citation marks omitted) (citing Asahi
Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 113
(1987)).
As a threshold matter, unlike in Daimler, 19 here, NAMA is
incorporated in the forum state—New York—and has its “principal
and exclusive place of business” there.

(See Pls.’ Br. at 9.)

Moreover, NAMA was established “as a standalone corporate entity
with the expectation that NAMA would be ‘at home’ here in New
York, and thereafter [NAM] used NAMA—controlling [NAMA] on a
day-to-day basis—as a means for achieving its own ends in this
forum.”

(Id.)

Accordingly, if subjected to jurisdiction in New

York, Defendant’s burden is minimal due to its substantial
connections to New York through NAMA and the substantial nature
of such connections give New York an interest in resolving this
conflict. 20
In sum, NAMA is a mere department of NAM to such an extent
that NAM is “essentially at home” in New York, and thus
exercising general jurisdiction over NAM based on NAMA’s New

In Daimler, the Court held that subjecting Daimler to general
jurisdiction would violate due process because neither Daimler
nor its subsidiary was incorporated or had its principal place
of business in the state. See Daimler, 571 U.S. at 139.
20 See Int’l Diamond Importers, 2017 WL 2839640, at *7 (“The
burden on [the parent corporation] to litigate is tempered by
its substantial connection to New York, through [its New York
subsidiary]. Moreover, the state of New York has an interest in
resolving conflicts between business owners . . . .”).
19

15

York contacts is constitutionally permissible.

Accordingly,

Defendant’s motion for summary judgment on the Non-NAMA
Plaintiffs’ claims for lack of general personal jurisdiction is
denied.
ii. Specific Jurisdiction Over NAM for Non-NAMA
Plaintiffs’ Claims
Defendant contends that this Court should dismiss the NonNAMA Plaintiffs’ claims for lack of specific personal
jurisdiction because “[t]here is simply no record evidence that
the claims of the 11 Non-NAMA Plaintiffs arise out of or relate
to Nikko’s activities in this forum. 21

(See Def.’s Br. at 6-7.)

Plaintiffs oppose, arguing that the Court has specific personal
jurisdiction over NAM with respect to Non-NAMA Plaintiff
Veronica Minukas’ claims because “she resided in New York as of
NAM’s second breach and there received from NAM the transmission
that devalued and extinguished her SARs.”

(Pls.’ Br. at 11.)

Having found that the Court has general personal jurisdiction
over NAM, the Court need not adjudicate this claim.
Accordingly, Defendant’s motion for summary judgment on the Non-

At this stage, the Court need not adjudicate whether specific
jurisdiction exists for NAMA-Plaintiffs’ claims as Defendant did
not move for summary judgment on the grounds that the Court
lacks specific personal jurisdiction over NAM for NAMAPlaintiffs’ claims. (See RSF ¶¶ 208-09.)
21

16

NAMA Plaintiffs’ claims for lack of specific personal
jurisdiction is denied.
b. Proper Venue for the NAMA Plaintiffs’ Claims
Defendant raises three arguments for why NAM is entitled to
summary judgment on claims asserted by Christina Alfandary
(“Alfandary”), Jeffrey Hansen (“Hansen”), Laurie Vicari
(“Vicari”), and Robert Corcoran (“Corcoran”) (together, the
“NAMA Plaintiffs”) based on the forum selection clause in the
Award Notices that Plaintiffs signed in connection with their
SARs grants.

(See Def.’s Br. at 11–15.)

The Court addresses

each argument in turn.
i. Whether the Separation Agreements Supersede the
Award Notices
Defendant’s primary argument for dismissing claims brought
by Alfandary, Corcoran, and Hansen is that the forum selection
clause in Plaintiffs’ Award Notices designates Tokyo District
Court as “‘the exclusive court of competent jurisdiction to
adjudicate any claim or dispute arising in connection’ with the
Plans or their SARs.”

(Def.’s Br. at 11.)

Defendant argues

that discovery has shown “that enforcement of the Award Notices
(which were signed by Nikko) ‘has no effect to vary, contradict
or supplement the terms of’ the Separation Agreements (which
were signed by NAMA)” because the two contracts involve
different subject matter, so the New York forum clause of the
17

Separation Agreements does not supersede the Japan forum clause
of the Award Notices.

(Id. at 13.)

Plaintiffs oppose arguing

that this Court has twice rejected Defendant’s argument.
Pls.’ Br. at 13.)

(See

The Court agrees with Plaintiffs; the third

time is not the charm for Defendant.
The Court first revisits what the Court considered in
evaluating Defendants’ position that the Separation Agreements
and the Award Notices covered different subject matter and were
not in conflict to determine if discovery since the Court’s
original decision and reconsideration would alter the Court’s
analysis.

In adjudicating Defendants’ motion for

reconsideration of Judge Sweet’s order denying Defendants’
motion to dismiss the FAC on grounds of forum non conveniens,
(see MTD Op.), the Court “ultimately reject[ed]” Defendants’
position that “the Separation Agreements and the Award Notices
covered different subject matter and were not in conflict”
“based on [the Court’s] analysis of the contractual language.”
(Recons. Op. at 7.)

Specifically, Judge Sweet held that the

later-executed Separation Agreements for Alfandary and Hansen 22
were fully integrated because those agreements contained a

Corcoran was not a party at the time of either Judge Sweet’s
or this Court’s prior decision; however, the parties do not
dispute that the material terms of Corcoran’s Separation
Agreement are the same as Alfandary’s and Hansen’s Separation
Agreements. (See Pls.’s Br. at 12 n.13; CSF ¶¶ 60-62.)
22

18

merger clause that “supersedes and cancels all prior and
contemporaneous written and oral agreements” between Nikko and
Alfandary and Hansen. 23

(MTD Op. at 26.)

Based on Judge Sweet’s

interpretation of the integration clauses, the Court held that
there was “little doubt the Integration Clauses of the
Separation Agreements . . . were in fact intended to supersede
conflicting portions of all prior agreements, including the
Award Notices.” 24

(MTD Op. at 27.)

Thus, the Court’s

determination that the Separation Agreements are integrated as a
matter of law rested on uncontroversial principles of construing
an unambiguous agreement. 25

It is an undisputed fact that Alfandary’s, Corcoran’s, and
Hansen’s NAMA Separation Agreements contain this merger clause.
(See CSF ¶ 62.) On reply, Defendant argues that “the Separation
Agreements do not purport to incorporate the Plan documents.”
(Def.’s Reply Br. at 9.) The Court disagrees based on the
merger clause in the Separation Agreements.
24 Defendant argues that “[w]ithout the benefit of discovery,
Judge Sweet determined that, by virtue of the general merger
clause in their Separation Agreements, the NAMA Plaintiffs would
have believed that those Agreements superseded and cancelled
their Award Notices.” (Def.’s Br. at 12 (footnote omitted).)
Defendant misses the point. What the NAMA Plaintiffs would have
believed is irrelevant, as Judge Sweet determined that the
Separation Agreements forum selection clause superseded based on
contractual construction. (MTD Op. at 27.)
25 “Under New York law, the Court can determine whether a
document ‘appears complete on its face [and] is an integrated
agreement as a matter of law.’” Ohr Somayach/Joseph Tanenbaum
Educ. Ctr. v. Farleigh Int’l Ltd., 483 F. Supp. 3d 195, 207
(S.D.N.Y. 2020) (quoting Morgan Stanley High Yield Sec., Inc. v.
Seven Circle Gaming Corp., 269 F. Supp. 2d 206, 213 (S.D.N.Y.
2003)).
23

19

Plaintiffs argue that the Court would violate the parol
evidence rule if the Court considered Defendant’s proffered
evidence regarding which forum selection clause controls.
Pls.’ Opp. at 14.)

This Court agrees.

(See

“The parol evidence rule

generally prohibits the admission of extrinsic evidence of prior
or contemporaneous oral agreements to explain the meaning of a
contract that the parties have reduced to an unambiguous
integrated writing.”
Cir. 2004).

Gualandi v. Adams, 385 F.3d 236, 241 (2d

In fact, Defendant agrees that “[i]t is generally

understood that the purpose of an integration clause ‘is to
require full application of the parol evidence rule in order to
bar the introduction of extrinsic evidence to vary or contradict
the terms of the writing.’” (Def.’s Br. at 13); Ross Stores,
Inc. v. Lincks, No. 13 Civ. 1876, 2013 WL 5629646, at *2
(S.D.N.Y. Oct. 4, 2013) (quoting Dujardin v. Liberty Media
Corp., 359 F. Supp. 2d 337, 356 (S.D.N.Y. 2005)); see also Ohr
Somayach/Joseph Tanenbaum Edu. Ctr., 483 F. Supp. 3d at 207
(“Where a contract contains an express merger or integration
clause, the parties have expressed an intent that the written
contract constitutes the entirety of the parties’ agreement, and
parol evidence is likely to be barred.”).

Because the

Separation Agreements have merger clauses and the Court
previously held that the agreements were integrated, the parol
evidence rule bars the Court from considering Defendant’s
20

evidence, specifically, evidence that the Award Notices and the
Separation Agreements involved different subject matter. 26
Def.’s Br. at 13.)

(See

Accordingly, Defendant’s motion for summary

judgment on the NAMA Plaintiff’s claims based on the forum
provisions of the Award Notices is denied.
ii. Whether Corcoran Released His 2009 SAR Claim
Defendant argues that Corcoran’s 2009 SAR claims are barred
because he did not join this lawsuit as a plaintiff in 2017 27
before signing his NAMA Separation Agreement. 28
at 15.)

(See Def.’s Br.

Plaintiffs oppose, contending that Defendant cannot

have its cake and eat it too.

(See Pls.’ Br. at 16.)

Plaintiff’s position is that Defendant cannot argue both that
the Award Notices and the Separation Agreements involve
different subject matter but that Corcoran released his 2009 SAR
claims upon signing his Separation Agreement. 29

(See id.)

The

As support for its proposition that discovery “reveals no
genuine dispute that the Award Notices survived the Separation
Agreements and thus remain in effect,” Defendant cites to CSF
¶ 63. (See Def.’s Br. at 12.) However, Plaintiffs dispute that
fact. (See CSF ¶ 63.)
27 The Court notes that Defendant’s characterization of why
Corcoran did not join this lawsuit in 2017 is a disputed fact.
(See CSF ¶¶ 75-77.)
28 Plaintiffs dispute Defendant’s characterization that by
signing his Separation Agreement, Corcoran released NAM
regarding his SAR claims. (See CSF ¶ 77.)
29 Defendant replies arguing that “the fact that [Corcoran’s]
Separation Agreement did not concern the same subject matter as
his Award Notices is neither inconsistent with nor does it serve
to limit the broad scope of the general release in his
Separation Agreement.” (Def.’s Reply Br. at 9.) However, as
26

21

Court agrees with Plaintiff.

As stated above, the parties do

not dispute that the material terms of Corcoran’s Separation
Agreement are the same as Alfandary’s and Hansen’s Separation
Agreements.

(See Pls.’ Br. at 12 n.13; CSF ¶¶ 60-62.)

Thus, as

with Alfandary and Hansen, this Court finds that the New York
forum selection clause in Corcoran’s Separation Agreement
controls.
Accordingly, Defendant’s motion for summary judgment on
Corcoran’s claims based on his Separation Agreement is denied.
iii. Where Vicari’s Claims Should Be Litigated
Defendant argues that this Court should dismiss Vicari’s
claims given the forum selection clause in her Award Notice
because “Vicari never had a Separation Agreement with NAMA.” 30
(See Def.’s Br. at 12.)

In opposition, Plaintiffs point to this

Court’s prior decisions holding that the Court may adjudicate
Vicari’s claims despite the absence of an executed Separation
Agreement between Vicari and NAMA.
also Recons. Op. at 8.)

(See Pls.’ Br. at 16; see

Plaintiffs further argue that because

“NAM has not renewed its forum non conveniens motion . . . there
stated above, Plaintiffs dispute that Corcoran released NAM of
his SARs claim in his Separation Agreement. (See CSF ¶ 77.)
The Court finds that this fact is material as it affects this
Court’s ability to adjudicate Corcoran’s claim against
Defendant.
30 Plaintiffs concede that “NAM correctly states that no evidence
has emerged that Vicari ever executed a Separation Agreement.”
(Pls.’ Br. at 16.)
22

is, therefore, no ground for the Court to reconsider its prior
decisions.”

(Pls.’ Br. at 17 n.17.)

The Court disagrees.

The Court finds it appropriate to reconsider its prior
decisions, as Judge Sweet’s opinion and this Court’s
reconsideration motion rely on Plaintiffs’ allegations that “it
was allegedly NAMA’s regular business practice to negotiate the
terms of separation with each of its departing executives,
covering, among other things, any vested SARs held under the
Plans.”

(Recons. Op. at 8.)

Although it is now an undisputed

fact that Vicari voluntarily resigned from NAMA in September
2014, (CSF ¶ 58), the parties still dispute whether it was
NAMA’s regular practice “to not enter into separation agreements
with employees who voluntarily resign,” (id. ¶ 57), and whether
NAMA entered “into a separation agreement with Vicari because
she had resigned voluntarily,” (id. ¶ 59).

Nevertheless, the

parties agree that no evidence has emerged that Vicari entered
into a Separation Agreement with NAMA.
Pls.’ Br. at 16.)

(See Def.’s Br. at 12;

Accordingly, the forum selection clause

(designating Tokyo District Court) in Vicari’s Award Notice is
applicable.
The Court agrees with Defendant that requiring Vicari to
litigate her claims against NAM in Japan will not result in
Vicari’s pursuing overlapping claims in multiple fora.

23

(See

Def.’s Reply Br. at 8.)

She will pursue her claims in Tokyo

District Court and nowhere else.
Moreover, the Court finds that Defendant did not need to
renew its forum non conveniens motion at this stage.

Based on

the evidence produced in discovery, the forum selection clause
in Vicari’s Award Notice requires dismissal of her claims.
Plaintiffs argue that “due the [sic] pendency of this action in
this Court for close to four years, and the multiple proceedings
that have taken place including the completion of fact discovery
and the exchange of expert reports, the balance of hardships
provides additional strong support for retaining the case in
this Court.”

(Pls.’ Br. at 17 n.17.)

The Court finds

Defendant’s reference to AIG Mexico Seguros Interamericana, S.A.
de C.V. v. M/V ZAPOTECA, 844 F. Supp. 2d 440 (S.D.N.Y. 2012)
regarding prejudice to Plaintiffs particularly apt.
Reply Br. at 8 n.10.)

(See Def.’s

In AIG Mexico Seguros Interamericana,

this Court held that “whatever lack of fairness Plaintiff claims
results from this decision [to dismiss Plaintiff’s claims on the
eve of trial] is at least equaled by the prospect of subjecting
Defendants to trial in a forum they have specifically contracted
against.”

844 F. Supp. 2d at 444.

Here, too the Court finds

that it would be unfair to force NAM to proceed in New York.

24

Accordingly, Defendant’s motion for summary judgment on
Vicari’s claims based on the forum clause in her Award Notice is
granted.
c. Plaintiffs’ Breach of Contract Claims
Finally, Defendant argues that this Court should grant
summary judgment, dismissing Plaintiffs’ contract claims for
breach of the SAR’s Terms and Conditions as a matter of law
given the “lack of any genuine dispute that the Plans
contemplated and allowed for the pre-IPO extinguishment of
former employees’ SARs.”

(Def.’s Br. at 15–16.)

Defendant

contends that documents and testimony obtained in discovery
supports its interpretation of Section 2.(10)(v)(b)(x) of the
Terms and Conditions.

(Id. at 15-20.)

Plaintiffs oppose,

arguing that the Court “already rejected as a matter of law
NAM’s interpretation of Section 2(10)(v)” of the Terms and
Conditions, finding that “the agreements do not . . . permit NAM
to force a sale before an IPO;” thus, the Court need not
consider evidence obtained through discovery to deny Defendant’s
motion.

(Pls.’ Br. at 17-18.)

The Court first revisits what

the Court considered in denying Defendants’ motion to dismiss
Plaintiffs’ contract claims.
Both then and now, the parties dispute the interpretation
of Section 2.(10)(v)(b)(X) of the Terms and Conditions for the
allotment agreements.

In seeking to dismiss Plaintiffs’
25

contract claims, Defendants raised the same argument as
presented here, i.e., that “the contracts purportedly permitted
[Defendant] to force former employees to sell their options back
to the company before an initial public offering.”
dated Dec. 6, 2019 [dkt. no. 88] at 11.)

(Opinion,

However, the Court

held that “Defendants’ reading of paragraph 2.(10)(v)(b)(x) of
the Terms and Conditions . . . finds no support in the text
itself.”

(Id. at 12.)

Section 2.(10)(v)(b)(X) states:

(b) In the case where the Company has not yet
implemented the IPO as of the date on which the
holder of the Stock Acquisition Rights lost
Position with the Company:
(x) Period during which
Rights may be exercised:

the

Stock

Acquisition

On or prior to the day three (3) months after the
IPO. Provided, however, that if on or prior to the
last day of such period the Company has granted the
holder
of
the
Stock
Acquisition
Rights
an
opportunity to request the Company to purchase the
Stock Acquisition Rights (including any alternative
action equivalent thereto), the Stock Acquisition
Rights shall become unexercisable as of the
purchase date which shall be specified by the
Company. For the avoidance of doubt, the foregoing
proviso shall apply regardless of whether the
holders of the Stock Acquisition Rights have
requested for the purchase of the Stock Acquisition
Rights or not.
(RSF ¶ 197.)
The Court interpreted the contract as a matter of law,
noting that Paragraph 2.(10)(v)(b)(x) states that, “if
employees left [Defendant] before an IPO, they had three
26

months after the IPO to exercise their rights and that the
company could force them to sell the rights back to it
during that 3-month period.

It does not state . . . that

[Defendant] could force former employees to sell their
rights back before an IPO.”

(Dkt. no. 88 at 12-13.)

Thus,

because the Court previously adjudicated Defendant’s
argument as a matter of law, the Court will not reconsider
its prior holding.

Accordingly, Defendant’s motion for

summary judgment on Plaintiffs’ contract claims is denied.
III. Conclusion
For the foregoing reasons, Defendants’ motion for summary
judgment [dkt. no. 137] is GRANTED in part and DENIED in part.
The Clerk of the Court shall close the open motion [dkt. no.
137].

Counsel shall confer and inform the Court by letter no

later than April 13, 2022 how they propose to proceed.
SO ORDERED.
Dated:

March 30, 2022
New York, New York
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

27