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1 United States District Court Southern District Of Case 1:15-cv-05345-AJN-KHP Document 1254 Filed 06/01/20 Page 1 of 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 6/1/2020 City of Almaty, Kazakhstan and BTA Bank JSC, Plaintiffs, 15-CV-5345 (AJN) –v– OPINION & ORDER Mukhtar Ablyazov, Ilyas Khrapunov, and Triadou SPV S.A., Defendants. ALISON J. NATHAN, District Judge: This litigation concerns an alleged conspiracy by which prominent citizens of Kazakhstan purportedly expropriated funds belonging to the City of Almaty, Kazakhstan (“Almaty”) and BTA Bank JSC (“BTA” and, together with Almaty, the “Kazakh Entities”), a formerly state- owned banking institution based in Kazakhstan, and laundered the stolen funds into New York City real estate investments. Now before the Court are: (1) Defendant Triadou’s motion for partial judgment on the pleadings, or, alternatively, motion for partial reconsideration of the Court’s March 29, 2019 Opinion and Order; and (2) Defendant Ilyas Khrapunov’s motion to dismiss the recently added foreign judgment claim against him, as well as his objections to Magistrate Judge Parker’s order permitting the Kazakh Entities to add this claim. For the reasons set forth below, the Court DENIES Triadou’s motion, GRANTS Khrapunov’s motion and DENIES Khrapunov’s objections as moot. I. BACKGROUND The Court assumes the parties’ familiarity with this long-running litigation. It recounts only the facts pertinent to the motions before it. 1 Case 1:15-cv-05345-AJN-KHP Document 1254 Filed 06/01/20 Page 2 of 16 A. Factual Allegations The Kazakh Entities filed their original crossclaims in this matter on October 12, 2015, and amended those crossclaims three times, on September 7, 2016, October 5, 2017, and June 28, 2019. Dkt. Nos. 49, 219, 433, 1094. For purposes of the present motions, the Court accepts the allegations in the crossclaims as true. In brief, Almaty alleges that its former mayor Viktor Khrapunov and several of his associates and family members embezzled roughly $300 million from the city between approximately 1997 and 2004. Dkt. No. 426 at 2; Dkt. No. 1094 ¶¶ 3, 45-55. BTA claims that its former chairman Mukhtar Ablyazov siphoned more than $6 billion out of BTA between 2005 and 2009. Dkt. No. 426 at 2; Dkt. No. 1094 ¶¶ 2, 28-35. And the Kazakh Entities allege that Mukhtar Ablyazov, Viktor Khrapunov, and Ilyas Khrapunov joined together to launder both pools of stolen funds through a series of shell companies, sham transactions, and outwardly- legitimate investments. Dkt. No. 426 at 3; see also, e.g., Dkt. No. 1094 ¶¶ 56-59, 68-72, 77-97. In one such effort, the Individual Defendants allegedly created and funneled proceeds into a Switzerland-based real estate investment vehicle called SDG Capital, S.A. (“SDG”), then engaged in a sham sale of SDG to conceal their control. Dkt. No. 426 at 3; Dkt. No. 1094 ¶¶ 58, 77-84. They then facilitated the creation of entities under Luxembourg law for the purpose of investing their stolen funds into United States-based real estate projects, including Triadou. Dkt. No. 426 at 3; Dkt. No. 1094 ¶¶ 85-87. In 2012 and 2013, purportedly at the direction of the Individual Defendants, Triadou allegedly proceeded to invest funds embezzled from the Kazakh Entities into New York City real estate projects, including the Flatotel and the Cabrini Medical Center, with New York City real estate developer Joseph Chetrit and several of his corporate affiliates (the “Chetrit Entities”). 2 Case 1:15-cv-05345-AJN-KHP Document 1254 Filed 06/01/20 Page 3 of 16 Dkt. No. 1094 ¶¶ 88-97, 111-13. Funding for these investments was allegedly wired to escrow accounts maintained by counsel for the Chetrit Entities in the United States from accounts held by a Dubai-based private contracting entity called Telford International Limited (“Telford”), which the Individual Defendants allegedly controlled, and FBME, a Tanzanian-headquartered financial institution with operations primarily in Cyprus. Dkt. No. 426 at 3; Dkt. No. 1094 ¶¶ 21, 78, 98-106, 111-13. In 2014, allegedly at the direction of the Individual Defendants, Triadou allegedly sought to liquidate those assets at below-market value to attempt to prevent the Kazakh Entities from accessing the funds. Dkt. No. 1094 ¶¶ 114-25. Accordingly, Triadou engaged in a sham transaction with the Chetrit Entities whereby Triadou assigned its interest in the Flatotel to the Chetrit Entities in exchange for $21 million to be paid in four installments, a “fraction of the fair market value of the properties.” Id. ¶ 118; Dkt. No. 1171 at 3. Further, the Kazakh Entities allege that the Chetrit Entities made an upfront $6 million payment as repayment for a loan on the Cabrini Medical Center project and a $1 million down payment on the Chetrit Group’s reacquisition of Triadou’s interest in the Flatotel. The $6 million and $1 million ended up abroad with SDG, but the rest of the money became tied up in this litigation. See Dkt. No. 1171 at 2. The Court refers to this purported sham transaction as the 2014 Assignment. Meanwhile, the Kazakh Entities were litigating claims against Ablyazov and Ilyas Khrapunov in British Courts. On June 21, 2018, Judge Waksman of the High Court of Judgment, Business and Property Courts of England entered a judgment in favor of BTA Bank against Ilyas Khrapunov in the amount of $424,110,000 plus $76,000,000 in prejudgment interest. Dkt. No. 1094 ¶ 202. The judgment related to claims that Ilyas Khrapunov had 3 Case 1:15-cv-05345-AJN-KHP Document 1254 Filed 06/01/20 Page 4 of 16 conspired with Ablyazov to violate receivership and freezing orders against Ablyazov due to his alleged theft from BTA Bank. Id. ¶ 200. B. Procedural Background This litigation began as an interpleader action against Triadou and Almaty brought in New York State Supreme Court by the Chetrit Entities, which claimed to face multiple liability under the 2014 Assignment. Dkt. No. 25 ¶¶ 11-17. Almaty removed the action to federal court and asserted counterclaims against the Chetrit Entities, crossclaims against Triadou, and third- party claims against Ablyazov, the Khrapunovs, and Joseph Chetrit. Dkt. No. 49. Over the course of the resulting litigation, the Kazakh Entities entered a settlement agreement with the Chetrit Entities and the Chetrit Entities were dismissed from the case with prejudice. As set out more fully in the Court’s previous Opinions in this matter, the Court entertained various dispositive motions and dismissed several of the remaining claims against Triadou and the Individual Defendants. In one of those Opinions, the Court dismissed as time-barred the Kazakh Entities’ claims for conversion, unjust enrichment, and constructive trust against individual defendants Mukhtar Ablyazov, Viktor Khrapunov, and Ilyas Khrapunov. See Dkt. No. 592. Triadou then moved for judgment on the pleadings for the conversion, unjust enrichment, and constructive trust claims against it, arguing that those common law claims are also time-barred because the Kazakh Entities have alleged that Triadou is the alter ego of Ablyazov and the Khrapunovs. Dkt. No. 666. On March 29, 2019 the Court granted the motion in part and denied it in part. See Dkt. No. 996. It agreed that those three common law claims against Triadou were time-barred to the extent that the Kazakh Entities pursued them on the theory that Triadou was the alter ego of Ablyazov and the Khrapunovs. But the Court did not grant Triadou’s motion in full, because it 4 Case 1:15-cv-05345-AJN-KHP Document 1254 Filed 06/01/20 Page 5 of 16 concluded that the Kazakh Entities could still pursue these three claims on a theory that Triadou is individually liable for them. Triadou now once again moves for judgment on the pleadings arguing that the now-Third Amended Crossclaims (“TAC”) do not support pleading an alternative theory of individual liability.1 It believes that the Court did not reach this issue in its previous Opinion. And if the Court did decide this issue, then Triadou seeks reconsideration of that decision. Separately, on January 7, 2019, the Kazakh Entities moved to add a new claim to recognize the June 21, 2018 U.K. judgment against Ilyas Khrapunov, pursuant to N.Y. C.P.L.R. § 5303. Magistrate Judge Parker granted the motion to amend in an Opinion and Order dated May 29, 2019. See Dkt. No. 1058. Khrapunov subsequently filed objections to the May 29 Opinion and Order pursuant to Federal Rule of Civil Procedure Rule 72(a), arguing that the amendment was futile because the Court lacked subject matter jurisdiction over the claim. He then filed a motion to dismiss the foreign judgment recognition claim, incorporating his subject matter jurisdiction objections, while making an additional argument that the Court also lacked personal jurisdiction over him for this claim. II. TRIADOU’S MOTION IS DENIED As an initial matter, the Court determines that Triadou’s filing is properly viewed as a motion for reconsideration. Contrary to Triadou’s suggestion, the Court did reach the issue of whether the SAC supported pleading in the alternative. As the Court’s header for the relevant section of the Opinion stated: “The Kazakh Entities Plead Theories of Individual and Alter Ego Liability in the Alternative.” Dkt. No. 996 at 9. The Court rejected Triadou’s contention that pleading in the alternative had to be done in a more “technical form,” finding that what the 1 The subsequent amendments to the crossclaims, which occurred after the Court’s March 29, 2020 Opinion, were unrelated to this issue. See Dkt. No. 1094 5 Case 1:15-cv-05345-AJN-KHP Document 1254 Filed 06/01/20 Page 6 of 16 Kazakh Entities had provided was sufficient.
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