Ace Decade Holdings Ltd. V. UBS AG, No
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Ace Decade Holdings Ltd. v. UBS AG, No. 653316/2015, 2016 BL 413780 (Sup. Ct. Dec. 07, 2016), Court Opinion Pagination For the reasons that follow, the Court determines that it * BL lacks jurisdiction over UBS and grants the motion to dismiss. Separately, the Court concludes that even if it Majority Opinion > could exercise jurisdiction over UBS, the action would be dismissed on forum non conveniens grounds. SUPREME COURT OF NEW YORK, NEW YORK COUNTY I. Background 2 A. Ace Decade's Relationship with UBS ACE DECADE HOLDINGS LIMITED, Plaintiff, -against- Ace Decade is a limited liability investment holding UBS AG, Defendant. Index No. 653316/2015 vehicle incorporated in the British Virgin Islands. (Compl. ¶ 18.) UBS is a Swiss banking and financial services company. (Compl. ¶ 19.) 653316/2015 December 7, 2016, Decided Ace Decade's agent, Kwok Ho Wan ("Mr. Kwok"), THIS OPINION IS UNCORRECTED AND WILL NOT began a relationship with UBS in Hong Kong in 2010. BE PUBLISHED IN THE PRINTED OFFICIAL (Compl. ¶¶ 22-24.) Since then, Mr. Kwok depended REPORTS. upon UBS's expertise and guidance and relied upon UBS Managing Director Stephen Wong's investment advice. Id. At all relevant times, Mr. Wong was based out of UBS's Hon. Eileen Bransten, J.S.C. Hong Kong office. (Dkt. No. 17, Affirm. of Stephen Wong in Support ("Wong Affirm.") ¶¶ 1, 7.) Eileen Bransten Around May 2014, Mr. Kwok and UBS began to BRANSTEN, J. discuss an investment opportunity (the "Investment") in an upcoming placement of H-shares3 (the "Shares") In this action, Plaintiff Ace Decade Holdings Limited of Haitong Securities Co., Ltd. ("Haitong"). (Compl. ¶ ("Ace Decade" or "Plaintiff") alleges that it purchased 25.) Haitong is a full-service securities firm that has shares of a Chinese company with money borrowed been listed in the Hong Kong Stock Exchange since from UBS, AG ("UBS" or "Defendant"), then lost April 2012. Id. Plaintiff alleges that UBS claimed it was virtually its entire investment when UBS issued a knowledgeable and experienced in advising investors margin call and sold all of Plaintiff's shares at a steep in similar placements; Ace Decade therefore agreed to discount. Upon UBS's advice, Plaintiff agreed to make have UBS act as its advisor in connection with the its investment through an intermediary. As a result, the Investment. (Compl. ¶¶ 27-31.) Plaintiff does not allege intermediary—not Plaintiff—entered into financing that there is any written agreement between Ace agreements directly with UBS. Since Plaintiff was not a Decade and UBS with respect to the Investment. party to these agreements, UBS was able to include onerous margin call provisions and penalty clauses B. Ace Decade's Contemplated Investment in Haitong while representing to Ace Decade that the loan According to Plaintiff, Mr. Kwok initially sought to invest agreements did not contain such provisions. $1 billion in Haitong. (Compl. ¶ 39.) UBS advised him to instead invest only $500 million and obtain a loan to Presently before the Court is Defendant UBS's motion purchase [*2] the remaining Shares. Id. to dismiss Plaintiff's Amended Complaint (the "Complaint") pursuant to CPLR §§ 327 , 3211(a)(7) -(8) UBS also advised Mr. Kwok not to purchase the , and3016(b).1 Defendant argues that this court lacks Shares directly through Ace Decade because the personal jurisdiction over UBS, that New York is an Investment would constitute more than 5% of Haitong's inconvenient forum, and that Plaintiffs Complaint fails outstanding H-shares and consequently trigger to state a cause of action. regulatory disclosure requirements. (Compl. ¶ 32.) © 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1 Ace Decade Holdings Ltd. v. UBS AG, No. 653316/2015, 2016 BL 413780 (Sup. Ct. Dec. 07, 2016), Court Opinion UBS convinced Mr. Kwok to structure the investment 46.) The transaction was conditioned on future through an intermediary entity, which would hold legal shareholder and regulatory approvals. (Compl. Ex. 5 at title to the Shares while Ace Decade remained the 5-6.) Ace Decade was not a party to the Subscription beneficial owner. (Compl. ¶ 32.) Agreement. UBS suggested that Ace Decade make the Investment D. Haixia's Credit Agreements with UBS through an entity known as Haixia Huifu Asset According to Plaintiff, Ace Decade did not pressure Investment and Fund Management Co., Ltd. ("Haixia"), Haixia or Dawn State to seek financing from banks which unbeknownst to Plaintiff was closely affiliated other than UBS because UBS represented that it would with UBS. (Compl. ¶ 33.) UBS concealed its ties to handle the loan on the most favorable terms. (Compl. ¶ Haixia and represented that Haixia was independent 40.) Moreover, UBS advised Ace Decade that for and would protect Ace Decade's interests. Id. regulatory reasons Ace Decade should not be a party to UBS's financing agreements with Haixia and Dawn C. Structuring the Deal State. (Compl. ¶ 50.) In late 2014, Mr. Wong advised Mr. Kwok regarding Haixia's Know-Your-Customer anti-corruption checks, Plaintiff alleges that throughout 2014, Mr. Wong reviewed the résumés of Mr. Kwok's employees, and continuously represented that the terms of the loan suggested that he appoint Ms. Yu Yong ("Ms. Yu") as would be advantageous to Ace Decade. (Compl. ¶¶ the Director and sole shareholder of Ace Decade. 47-49.) Specifically, during the parties' [*3] discussions, (Compl. ¶ 36.) Ace Decade demanded that the margin call provisions exclude short-term price fluctuation triggers. Id. With Ace Decade agreed to make the investment through regards to any margin call, Ace Decade sought five one of Haixia's fully-owned subsidiary funds, Dawn business days to pay the first 25%, ten business days State Limited ("Dawn State"). On December 17, 2014, for the second 25%, and 20 business days for the Ace Decade entered into a "Co-Investment Agreement" remaining 50%. (Compl. ¶ 47.) Mr. Kwok also told UBS with Haixia, and a "Letter Agreement" with Haixia and that Ace Decade would not make the Investment if the Dawn State. (Compl. ¶¶ 41-44.) Pursuant to the Co- margin call provisions were not appropriate. Id. Investment Agreement, Ace Decade would provide Dawn State $500 million and Dawn State would obtain Mr. Wong reassured Ace Decade that the terms of the an additional $750 million in financing to purchase the credit agreements would mirror those of a previous Shares. Id. Haixia would receive a fee of up to $5 loan issued by UBS to a shareholder of Ping An million in consideration for permitting Ace Decade to Insurance Group ("Ping An"). (Compl. ¶ 49.) In that use its special purpose entity for the Investment. (Dkt. transaction, UBS never sold any of the shares following No. 38, Compl. Ex. 1 ("Co-Investment Agreement") § a margin call. Id. Mr. Wong represented to Mr. Kwok 1.1.) that UBS would work with Ace Decade to allow it to meet any margin call, and that UBS would not sell the The Co-Investment Agreement provided that Ace Shares without giving Ace Decade a reasonable Decade would have no management or voting rights amount of time to pay. (Compl. ¶ 48.) with respect to Dawn State. (Co-Investment Agreement § 4.2.) According to Plaintiff, these provisions were On December 19, 2014, the final Financing Letter included at UBS's advice to avoid regulatory disclosure between Haixia and UBS was executed. (Compl. ¶ 50.) requirements. (Compl. ¶ 38.) However, Haixia agreed Ace Decade's Letter Agreement with Haixia—executed to transfer 100% of Dawn State to Ace Decade upon two days earlier on December 17, 2016—states that request at any time after two months following the Ace Decade reviewed the Financing Letter. However, Investment. (Dkt. No. 39, Compl. Ex. 2 ("Letter Ace Decade alleges that it could not have reviewed the Agreement") at 2-4.) Financing Letter because it did not even exist at the time the Letter Agreement was signed. (Compl. ¶ 53.) To purchase the Shares, Dawn State separately entered into a Subscription Agreement with Haitong for The Financing Letter contained onerous provisions that 569,427,620 Shares at a price of HK $15.62. (Compl. ¶ allowed UBS to issue a margin call based on short- © 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 2 Ace Decade Holdings Ltd. v. UBS AG, No. 653316/2015, 2016 BL 413780 (Sup. Ct. Dec. 07, 2016), Court Opinion term price fluctuations, and required that 25% of the Wong again [his] concerns about repayment triggers total payment be made in less than 24 hours with the conditioned on short term price fluctuations of the remaining 75% due in the next two days. (Compl. ¶ Shares because Mr. Wong had previously told [him] 52.) Dawn State and UBS simultaneously entered into that there were no such triggers." (Dkt. No. 27, Kwok a side-letter agreement (the "UBS Side Letter") that Aff. ¶ 42.) provided that if the loans were prepaid, including pursuant to a margin call, UBS would earn a "make- F. Funding the Investment whole premium." Id. In April 2015, Dawn State—not Ace Decade—entered into a Facility Agreement with UBS that provided E. Ace Decade's Relocation to New York approximately $688.3 Million in loan financing to In early 2015, Mr. Kwok, Ms. Yu, and Ace Decade purchase the Shares. (Compl. ¶ 69.) In May, Haitong relocated to New York. (Compl. ¶ 56.) Ace Decade announced that the conditions for finalizing Investment alleges that Mr. Wong and UBS knew about the had been completed and the closing was expected to relocation and about Ace Decade's intent to seek occur on May 15, 2015. (Compl. ¶ 70.) Due to an investors in New York. (Compl. ¶ 57.) Mr. Kwok and increase in the price of the Shares, Dawn State and Ms.